V <> DOC. Y 4.P96/10p S.prt.lOl- ~ 120/v.l :3_2JO f 1^ COMMITTEE PRINT S. Prt. 101-120 Vol.1 A LEGISLATIVE HISTORY OF THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986 (PUBLIC LAW 99-499) TOGETHER WITH A SECTION-BY-SECTION INDEX PREPARED BY THE ENVIRONMENT AND NATURAL RESOURCES POLICY DIVISION OF THE CONGRESSIONAL RESEARCH SERVICE OF THE LIBRARY OF CONGRESS FOR THE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS U.S. SENATE VOLUME 1 OCT 2 6 199rt UNlvERSirV OH ILLINOI AT UR3A HAMPAllG.'M OCTOBER 1990 Printed for the use of the Senate Committee on Environment and Public Works UNIVERSITY OF ILLINOIS LIBRARY AT URBANA-CHAMPAIGN BOOKSTACKS 101st Congress 2d Session COMMITTEE PRINT S. Prt. 101-120 Vol. 1 A LEGISLATIVE HISTORY OF THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986 (PUBLIC LAW 99-499) TOGETHER WITH A SECTION-BY-SECTION INDEX PREPARED BY THE ENVIRONMENT AND NATURAL RESOURCES POLICY DIVISION OF THE CONGRESSIONAL RESEARCH SERVICE OF THE LIBRARY OF CONGRESS FOR THE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS U.S. SENATE VOLUME 1 :\v OCTOBER 1990 Printed for the use of the Senate Committee on Environment and Public Works 75-032 U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 1990 For sale by the Superintendent of Documents, Congressional Sales Office U.S. Government Printing Office, Washington, DC 20402 COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS QUENTIN N. BURDICK DANIEL PATRICK MOYNIHAN, New York GEORGE J. MITCHELL, Maine MAX BAUCUS, Montana FRANK R. LAUTENBERG, New Jersey HARRY REID, Nevada BOB GRAHAM, Florida JOSEPH I. LIEBERMAN, Connecticut HOWARD M. METZENBAUM, Ohio David M. Strauss, Staff Director Robert F. Hurley, Minority Staff Director North Dakota, Chairman JOHN H. CHAFEE, Rhode Island ALAN K. SIMPSON, Wyoming STEVE SYMMS, Idaho DAVE DURENBERGER Minnesota JOHN W. WARNER, Virginia JAMES M. JEFFORDS, Vermont GORDON J. HUMPHREY, New Hampshire (II) w l'^ i^Of ^^ LETTER OF TRANSMITTAL Washington, D.C. 20540 Congressional Research Service The Library of Congress September 18, 1990 Honorable Quentin Burdick, Chairman Honorable John N. Chafee, Ranking Minority Member Committee on Environment and Public Works United States Senate Washington, D.C. Dear Mr. Chairman and Senator Chafee: In response to your request, we have prepared a legislative history of the Superfund Amendments and Reauthorization Act of 1986, Public Law 99-499. This document contains the major bills, reports, and debates which comprise the action of the 99th Congress concerning the Act. Appendices contain additional documents and statements directly pertinent to the history of the law. A guide to the texts of the many bills and amendments, and a section-by-section index are included for the convenience of the reader. The history should be of considerable aid to legislators, public officials, industries, and the general public who are affected by this Act and wish to understand the intent of Congress. Its publication will make all of the necessary materials, most of which are out of print, available in one comprehensive document. This legislative history was compiled by Lillian S. Hagen. Mark E. Anthony Reisch of our Environment and Natural Resources Policy Division served as Project Manager. We hope this document will serve your Committee's needs for a history of congressional action on this law. Sincerely, (III) PREFACE These volumes contain the documents and debates comprising the legislative history of the 1986 amendments to the "Superfund" law. As such, they supplement the earlier legislative history of the 1980 enactment, the Comprehensive Environmental Response, Compensation, and Liability Act. Those three volumes were published as committee prints by the Senate Environment and Public Works Committee in 1983. The 1980 law provided $1.6 billion through the end of fiscal year 1985, primarily from taxes on oil and chemicals. In 1985 there was little disagreement that the program should be expanded. The major questions were: by how much, and who should pay. Indeed, the parameters were suggested in August 1984 when the House passed a $10.2 billion reauthorization, and in September when the Senate Environment and Public Works Committee reported a $7.5 billion measure. However, the Senate bill was then referred to the Finance Committee, which took no action on it before the 98th Congress ended. In the 99th Congress, the Senate acted first, with the Environment Committee reporting S. 51 on March 7, 1985. The Finance Committee reported $7.5 billion worth of funding to pay for the Superfund program on May 23rd. Included in the package was a new broad-based business tax, in addition to the feedstock taxes that were in existence under the original Act. The business tax, which opponents called a value-added tax, proved very controversial, and Reagan administration officials at the Office of Management and Budget threatened a presidential veto on September 17, the first day of Senate floor debate. Nevertheless, the Senate retained the business tax, but as a compromise, also adopted an unusual sense of the Senate resolution. The amendment, offered by Senator Jesse Helms, directed the conference committee to "report legislation containing a reliable financing mechanism for the Superfund program which does not include the Value Added Tax." The Judiciary Committee also received referral of the bill. Although the Committee did not complete its work by the June 14 deadline imposed on it. Chairman Strom Thurmond did offer amendments during debate that the Committee had agreed on. After 7 days of debate, the Senate passed S. 51 on September 26, 1985. Because of the constitutional requirement that tax bills originate in the House, the language of S. 51 was inserted in a House-passed measure, H.R. 2005, a bill making minor amendments to the Social Security Act. In the House, the Energy and Commerce Committee acted first, approving H.R. 2817 on July 25, 1985, after 6 days of vigorous debate. The bill authorized a $10 billion program. The Committee on Merchant Marine and Fisheries amended the bill on October 1 by adding on the entire text of the previously reported comprehensive oil spill liability and cleanup bill, H.R. (V) VI 1232. The Judiciary Committee approved its amendments on October 8, broadening the right of various parties to take EPA to court over the Agency's choice of a cleanup remedy. Other amendments gave Hable companies the right to sue other companies for contribution, and gave Federal courts the power to apportion cleanup costs among liable parties. On October 10, the Public Works and Transportation Committee voted its bill out. It contained tougher cleanup standards and schedules than the Energy and Commerce bill, which did not set deadlines for the completion of cleanup work. The Ways and Means Committee approved the bill's financing provisions on October 17, with a controversial business tax similar to the one adopted by the Senate. Dispute within the committee was resolved when the committee also voted to seek a rule allowing the whole House to vote on two other tax alternatives. Two other House committees with jurisdictional claims on the bill did not seek referral, but had their viewpoints acknowledged less formally. The Science and Technology Committee reported H.R. 3065 on September 4 (H. Rept. 99-255), which dealt with research and development issues. That bill's provisions were incorporated into the Public Works-reported version of H.R. 2817. In addition, the Armed Services Committee's environmental restoration panel approved amendment language (H.R. 1940) on October 10, concerning the Department of Defense environmental restoration program. Those provisions appeared in H.R. 3852, the compromise bill that eventually became the House legislative vehicle. Similar language had been added to the Senate bill in an amendment offered by Sen. Pete Wilson. Disagreements between the Energy and Commerce, and Public Works Committees delayed further action in the House until early December when a compromise was reached. The new bill, H.R. 3852, was introduced by Majority Leader Jim Wright, with Minority Leader Robert H. Michel and 11 other leaders of the five committees as cosponsors. The text of H.R. 3852 was substituted for H.R. 2817 at the beginning of debate, and after passage on December 10, the House language was inserted in the Senate-passed bill, H.R. 2005. Emergency Funding In the meantime, the Superfund taxing authority had expired at the end of the fiscal year, on September 30, 1985. The next day the House passed a 45-day extension, but the Senate did not act on the measure (H.R. 3453). The Environmental Protection Agency had already slowed down cleanup activities to conserve remaining funds, and to avoid having to lay off employees. By March 1986, EPA Administator Lee Thomas was saying that he would have to start shutting down the program if the Agency did not receive new funding authority by April 1. However, progress of the conference committee was very slow, and it became obvious that the law would not be renewed by that deadline. On March 20, under unanimous consent procedures, the House passed a 2-month $150 million extension (H.J. Res. 573), and the Senate concurred the following morning. Technically, the resolution provided a loan VII to the Superfund program from the general fund, to be repaid from future tax receipts, although it had the same effect as an appropriation. A second extension, providing a $48 million advance, was passed in August (H.J. Res. 713). Conference The conferees began meeting in February 1986, and those dealing with the programmatic portions of the bill completed their work on July 31. The House Ways and Means and Senate Finance conferees, meeting as a separate group, then took up the tax portion of the legislation, and adopted elements of both houses* proposals, imposing both a broad-based tax on all companies and specific taxes on petrochemical companies. The total package was reported on October 3, and passed by the Senate the same day. The House adopted the conference report on October 8, and the President signed the Act on October 17, 1986. A Note on the Tax Provisions The tax provisions of SARA have been amended extensively since enactment of the law, particularly by Public Law 99-509, and Public Law 100- 647. The interested reader should refer to the Internal Revenue Code of 1986 for the current text of those provisions. Mark E. Anthony Reisch, Environment and Natural Resources Policy Division, Congressional Research Service, Library of Congress CONTENTS VOLUME 1 Page Chapter I: Superfund Amendments and Reauthorization Act of 1986 1 PubUc Law 99-499 1 President's approval, October 17, 1986 171 The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 173 VOLUME 2 Chapter IL S. 51 405 Statements of cosponsors on introducing S. 51 407 S 51, as introduced, January 3, 1985 413 Administration testimony, February 25, 1985 455 Senate Report No. 99-11 (Committee on Environment and Public Works), March 18, 1985 590 Background and Issues Relating to the Reauthorization and Financing of the Superfund (Joint Committee on Taxation) 718 Senate Report No. 99-73 (Committee on Finance), May 23, 1985 . 790 Order referring S. 51 to Committee on the Judiciary, May 24, 1985 830 S. 51, as reported. May 24, 1985 831 Order of procedure, September 16, 1985 991 Senate debate, September 17, 1985 992 Senate debate, September 18, 1985 1027 Senate debate, September 19, 1985 1079 Senate debate, September 20, 1985 1109 Senate debate, September 23, 1985 1179 Senate debate and incorporation of language in H.R. 2005, September 24, 1985 1221 Senate debate and passage of H.R. 2005, September 26, 1985 1293 H.R. 2005, as passed by the Senate 1311 (IX) VOLUME 3 Chapter IE: H.R. 2817 ^ Statements of cosponsors on introducing H.R. 2817 1535 H.R. 2817, as introduced, June 20, 1985 1540 Background and Issues Relating to House Bills for Reauthorization and Financing of the Superfund (Joint Committee on Taxation), May 8, 1985 1678 House Report No. 99-253, Part 1 (Committee on Energy and Commerce), August 1, 1985 1764 House Report No. 99-253, Part 2 (Committee on Ways and Means, October 28, 1985 2076 House Report No. 99-253, Part 3 (Committee on Judiciary), October 31, 1985 2213 House Report No. 99-253, Part 4 (Committee on Merchant Marine and Fisheries), October 31, 1985 2275 VOLUME 4 Chapter III: H.R. 2817, continued House Report No. 99-253, Part 5 (Committee on Public Works and Transportation), November 12, 1985 fl.R. 2817, as reported, November 12, 1985 2506 2831 VOLUME 5 Chapter III: H.R. 2817, continued H.R. 3852, as introduced, December 4, 1985 3563 House debate, December 5, 1985 4014 House debate, December 6, 1985 4203 House debate, incorporation of language in H.R. 2005, and passage, December 10, 1985 4265 H.R. 20005, as passed by the House 4356 VOLUME 6 Chapter IV: Conference Report 4813 Appointment of conferees, February 7, 1986 4815 House Report No. 99-962 (Committee of Conference), October 3, 1986 4818 Senate debate and passage, October 3, 1986 5164 House debate and passage October 8, 1986 5244 XI VOLUME 7 Appendix I: Emergency Funding 5391 H.R. 3453 5393 House debate and passage, October 1, 1985 5395 H.J. Res. 573 5402 House debate and passage, March 20, 1986 5404 Senate debate and passage, March 21, 1986 5406 H.J. Res. 713 5411 House debate and passage, August 15, 1986 5413 Senate debate and passage, August 15, 1986 5416 H.J. Res. 727 5428 House Report No. 99-830 (Committee on Appropriations), September 16, 1986 5431 House debate, September 16, 1986 5434 House debate and passage, September 18, 1986 5439 Appendix II: Additional Bills 5441 Administration Bill (introduced as H.R. 1342, S. 494, and S. 972) : 5443 H.R. 1940 5527 H.R. 3065 5547 House Report No. 99-255, Part 1 (Committee on Science and Technology), September 4, 1985 5562 Appendix III: Amendments not printed elsewhere 5591 Amendments to S. 51 5593 Amendments to H.R. 2817 5613 Appendix IV: Statements inserted in the Congressional Record after passage commenting on or clarifying certain provisions 5629 Section-by-section index 5643 GUTOE TO TEXTS OF BILLS AND AMENDMENTS Volume-Page S. 51, as introduced 2-413 S. 51, as reported 2-831 S. 51, as passed by the Senate (language incorporated in H.R. 2005) . . 2-1311 Amendijients to S. 51: Nos. 2 and 3, by Senator Stafford, January- 3, 1985 7-5595 No. 7, by Senator Stafford, with statement, January 22, 1985 7-5600 No. 224, by Senators Bentsen and Stafford, with statement, May 23, 1985 7-5606 No. 225, by Senators Stafford and Bentsen, with statement, May 23, 1985 7-5606 No. 577, by Senator Cranston, August 1, 1985 7-5609 No. 627, by Senator DeConcini, September 17, 1985 7-5610 Nos. 642 and 643, by Senator Grassley, September 19, 1985 7-5611 Amendments to S. 51, in debate, September 17, 1985: No. 630, by Senators Stafford and Bentsen 2-1015 No. 631, by Senator Kasten 2-1017 Nos. 632 and 633, by Senators Stafford and Bentsen 2-1018 No. 634, by Senators Bradley and Lautenberg 2-1023 Amendments to S. 51, in debate, September 18, 1985: No. 635 (an amendment to No. 633), by Senators Kasten, Danforth, and Rollings 2-1028 No. 636, by Senator Weicker 2-1029 No. 637, by Senators S3mims and Helms 2-1031 (on September 20, 1985) 2-1121 No. 638, by Senators Lautenberg, Humphrey, Heinz, Moynihan, and Bradley 2-1034 No. 639, by Senators Baucus, Stafford, Bentsen, and Garn 2-1067 No. 640, by Senators Mitchell, Lautenberg, Bradley, Baucus, Leahy, Moynihan, Specter, and Heinz 2-1071 Amendments to S. 51, in debate, September 19, 1985: No. 647, by Senators Bradley and Lautenberg 2-1079 No. 648, by Senators Stafford and Bentsen 2-1081 No. 649, by Senators Stafford and Bentsen 2-1094 No. 650, by Senator Durenberger 2-1104 Amendments to S. 51, in debate, September 20, 1985: No. 651, by Senators Stafford and Bentsen 2-1109 No. 652, by Senator Lautenberg 2-1109 No. 653, by Senator Kennedy 2-1110 Nos. 654 and 655, by Senator Kennedy 2-1113 Modifications to No. 655 by Senators Kennedy and Stafford 2-1116 No. 656, by Senator Hatch 2-1117 No. 657, by Senators Stafford and Bentsen 2-1118 No. 658, by Senator Metzenbaum 2-1119 No. 659, by Senators Packwood and Long 2-1134 (XIII) XIV No. 660, by Senator Heinz 2-1141 No. 661, by Senator Byrd 2-1143 No. 662, by Senator Glenn 2-1149 No. 663, by Senators Stafford, Thurmond, Hatch, East, McConnell, Laxalt, DeConcini, Simpson, Denton, Specter, Heflin, Mathias, and Grassley 2-1152 No. 664 (an amendment to No. 663), by Senator Specter 2-1160 No. 665, by Senators Bentsen and Stafford 2-1161 No. 666, by Senator Bentsen 2-1164 No. 667, by Senators McConnell and Ford 2-1165 No. 669, by Senators Moynihan and Lautenberg 2-1168 Amendments to S. 51, in debate, September 23, 1985: No. 670, by Senator Stafford 2-1179 No. 671, by Senator Bentsen 2-1179 No. 673, by Senator Mitchell 2-1182 No. 674, by Senators Roth, Simpson, Helms, Denton, and Domenici . 2-1182 Amendments to S. 51, in debate, September 24, 1985: No. 677, by Senator Metzenbaum 2-1221 Nos. 678 and 679, by Senator Heinz 2-1222 No. 680, by Senators Domenici, Simpson, and Bentsen 2-1236 No. 681, by Senator Stevens 2-1247 No. 682, by Senator Wilson 2-1250 No. 683, by Senators Abdnor, Dole, Grassley, Burdick, Simpson, Baucus, Zorinsky, Boschwitz, Symms, Boren, Durenberger, Nickles, Pryor, Andrews, and McClure 2-1253 No. 684, by Senator Wilson 2-1263 No. 685, by Senator Specter 2-1266 No. 686, by Senators Helms, McClure, Levin, and Proxmire 2-1269 No. 687, by Senator Symms 2-1272 S. 494 7-5443 S. 972 7-5443 H.R. 1342 7-5443 H.R. 1940 7-5527 H.R. 2005, as passed by the Senate (incorporating the language of S. 51) 2-1311 H.R. 2005, as passed by the House (incorporating the language of H.R. 3852) 5-4356 H.R. 2817, as introduced 3-1540 H.R. 2817, as reported by the Committee on Energy and Commerce (from Report No. 99-253, Part 1) 3-1764 (from H.R. 2817, as reported. Union Calendar No. 216) 4-2832 H.R. 2817, as reported by the Committee on Ways and Means (from Report No. 99-253, Part 2) 3-2077 (from H.R. 2817, as reported, Union Calendar No. 216) 4-3065 H.R. 2817, as reported by the Committee on the Judiciary (from Report No. 99-253, Part 3) 3-2213 (from H.R. 2817, as reported. Union Calendar No. 216) 4-2863, 2878-2904, 2932, 2937-2940, 2961, 2969-2976, 2999-3012 XV H.R. 2817, as reported by the Committee on Merchant Marine and Fisheries (from Report No. 99-253, Part 4) 3-2275 (from H.R. 2817, as reported. Union Calendar No. 216) 4-2833-2835, 2838, 2845-2846, 2852, 2855, 2858-2861, 2863-2867, 2874, 2904-2906, 2936, 2952, 2955, 2975-2976, 2982-2983, 2986, 3158 H.R. 2817, as reported by the Committee on Public Works and Transportation (from Report No. 99-253, Part 5) 4-2506 (from H.R. 2817, as reported, Union Calendar No. 216) 4-3227 Amendments to H.R. 2817: By Representative McCurdy, with statement, November 1, 1985 . . . 7-5614 By Representative Frank, with statement, November 14, 1985 5-4313, 7-5625 By Representative Bliley, December 3, 1985 7-5626 By Representative McKeman, December 3, 1985 7-5626 By Representative Vento, December 3, 1985 7-5626 By Representative Kanjorski, December 4, 1985 7-5627 By Representative Rahall, December 4, 1985 7-5627 By Representative McKeman, December 5, 1985 7-5628 H.R. 3065 7-5547 H.R. 3453 7-5393 H.R. 3852, as introduced 5-3563 Amendments to H.R. 3852, in debate, December 5, 19S5: By Representative Howard 5-4119 By Representative Vento 5-4125 By Representative Frank 5-4138 By Representative Eckart of Ohio, modification of the Frank amendment 5-4144 By Representative Daub 5-4146 By Representative Anderson 5-4155 By Representative Johnson 5-4158 By Representative Markey 5-4159 By Representative Andrews 5-4161 By Representative Rowland of Georgia 5-4162 By Representative Daub 5-4163 By Representative Skelton 5-4165 By Representative Eckart of Ohio, amendment to the Skelton amendment 5-4166 By Representative Wirth 5-4169 By Representative Eckart of Ohio 5-4170 By Representative Tauzin 5-4171 By Representative Glickman 5-4171 By Representative Skelton 5-4176 By Representative Broyhill 5-4178 By Representative Richardson 5-4180 By Representative Smith of New Jersey 5-4185 By Representative LaFalce 5-4185 By Representative Edgar 5-4189, 5-4343 XVI In debate, December 6, 1985: By Representative Richardson 5-4203 By Representative Carper 5-4204 By Representative Carper 5-4205 By Representative McKeman 5-4209 By Representative Duncan 5-4219 In debate, December 10, 1985: By Representative Downey 5-4272 By Representative Studds 5-4297 By Representative Frank 5-4313 By Representative Seiberling, amendment to the Frank amendment . 5-4316 Administration bill, with a communication from the President (introduced as H.R. 1342, S. 494, and S. 972) 7-5443 H. Res. 331 5.4015 H. Res. 577 6-5245 H. J. Res. 573 7-5402 H. J. Res. 713 7-5411 H. J. Res. 727 ]]]] 7.5428 CHAPTER I SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986 PUBLIC LAW 99-499 (XVII) PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1613 Public Law 99- 99th Congress ■499 An Act To extend and amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and for other purposes. SECTION 1. SHORT TITLE AND TABLE OF CONTENTS. This Act may be cited as the "Superfund Amendments and Re- authorization Act of 1986". TABLE OF CONTENTS Sec. 1. Short title and table of contents. Sec. 2. CERCLA and Administrator. Sec. 3. Limitation on contract and borrowing authority. Sec. 4. Effective date. Oct. 17, 1986 [H.R. 2005] Hazardous materials. Environmental protection. 42 use 9601 note. TITLE I- -PROVISIONS RELATING PRIMARILY TO RESPONSE AND LIABILITY Sec. 101. Amendments to definitions. Sec. 102. Rejjortable quantities. Sec. 103. Notices; penalties. Sec. 104. Response authorities. Sec. 105. National contingency plan. Sec. 106. Reimbursement. Sec. 107. Liability. Sec. 108. Financial responsibility. Sec. 109. Penalties. Sec. 110. Health-related authorities. Sec. 111. Uses of fund. Sec. 112. Claims procedure. Sec. 113. Litigation, jurisdiction, and venue. Sec. 114. Relationship to other law. Sec. 115. Delegation; regulations. Sec. 116. Schedules. Sec. 117. Public participation. Sec. 118. Miscellaneous provisions. Sec. 119. Response action contractors. Sec. 120. Federal facilities. Sec. 121. Cleanup standards. Sec. 122. Settlements. Sec. 123. Reimbursement to local governments. Sec. 124. Methane recovery. Sec. 125. Certain special study wastes. Sec. 126. Worker protection standards. Sec. 127. Liability limits for ocean incineration TITLE II-MISCELLANEOUS PROVISIONS Sec. 201. Post-closure liability program study, report to Congress, and suspension of liability transfers. 202. Hazardous materials transportation. 203. State procedural reform. Sec. 204. Conforming amendment to funding provisions. Sec. 205. Cleanup of petroleum from leaking underground storage tank^. Sec. 206. Citizens suits. Sec. 207. Indian tribes. Sec. 208. Insurability study. Sec. 209. Research, development, and demonstration. Sec. 210. Pollution liability insurance. Sec. 211. Department of Defense environmental restoration program. Sec. 212. Oversight and reporting requirements. Sec. Sec. •Note: The printed text of Public Law 99-499 is a reprint of the hand enrollment, signed by the President on October 17, 1986. (1) 100 STAT. 1614 PUBLIC LAW 99-499— OCT. 17, 1986 Sec. 213. Love Canal property acquisition. TITLE III— EMERGENCY PLANNING AND COMMUNITY RIGHTTO-KNOW Sec. 800. Short title; table of contents. Subtitle A— Emergency Planning and Notification Sec. liOl. Establishment of State commissions, planning districts, and local committees. Sec. 302. Substances and facilities covered and notification. Sec. 303. Comprehensive emergency response plans. Sec. 304. Emergency notification. Sec. 305. Emergency training and review of emergency systems. Subtitle B — Reporting Requirements Sec. 311. Material safety data sheets. Sec. 312. Emerger.cy and hazardous chemical inventory forms. Sec. 313. Toxic chemical release forms. Subtitle C — General Provisions Sec. 321. Relationship to other law. Sec. 322. Trade secrets. Sec. 323. Provision of information to health professionals, doctors, and nurses. Sec. 324. Public availability of plans, data sheets, forms, and followup notices. Sec. 325. Enforcement. Sec. 326. Civil Actions. Sec. 327. Exemption. Sec. 328. Regulations. Sec. 329. Definitions. Sec. 330. Authorization of appropriations. TITLE IV-RADON GAS AND INDOOR AIR QUALITY RESEARCH Sec. 401 Short title. Sec. 402. Fmdings. Sec. 403. Radon gas and indoor air quality research program. Sec. 404. Construction of title. Sec. 405. Authorizations. 42 use 9601 note. 42 use 9662. 42 use 9601 note. SEC. 2. CERCLA AND ADMINISTRATOR. As used in this Act — (1) CERCLA.— The term "CERCLA" means the Comprehen- sive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C 9601 et seq.). (2) Administrator.— The term "Administrator" means the Administrator of the Environmental Protection Agency. SEC. 3. LIMITATION ON CONTRACT AND BORROWING AUTHORITY. Any authority provided by this Act, including any amendment made by this Act, to enter into contracts to obligate the United States or to incur indebtedness for the repayment of which the United States is liable shall be effective only to such extent or in such amounts as are provided in appropriation Acts. SEC. 4. EFFECTIVE DATE. Except as otherwise specified in section 121(b) of this Act or in any other provision of titles I, II, III, and IV of this Act, the amendments made by titles I through IV of this Act shall take effect on the enactment of this Act. PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1615 TITLE I— PROVISIONS RELATING PRIMARILY TO RESPONSE AND LIABILITY SEC. 101. AMENDMENTS TO DEFINITIONS. (a) Indian Tribe.— Paragraph (16) of section 101 of CERCLA (defining "natural resources") is amended by striking "or" the last time it appears and inserting before the punctuation at the end thereof the following: ", any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe". (b) State or Local Government Limitation.— Paragraph (20) of section 101 of CERCLA (defining "owner or operator") is amended as follows: (1) Add the following new subparagraph at the end thereof: "(D) The term 'owner or operator' does not include a unit of State or local government which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or other circumstances in which the govern- ment involuntarily acquires title by virtue of its function as sovereign. The exclusion provided under this paragraph shall not apply to any State or local government which has caused or contributed to the release or threatened release of a hazardous substance from the facility, and such a State or local government shall be subject to the provisions of this Act in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 107.". (2) Amend clause (iii) of subparagraph (A) to read as follows: "(iii) in the case of any facility, title or control of which was conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to a unit of State or local government, any person who owned, operated, or otherwise controlled activities at such facility immediately beforehand.". (3) Capitalize the first word of subparagraphs (B) and (C) and substitute a period for the semicolon at the end of subpara- graphs (A), (B), and (C). (c) Release.— Paragraph (22) of section 101 of CERCLA (defining "release") is amended by inserting after "environment" the follow- ing: "(including the abandonment or discarding of barrels, contain- ers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)". (d) Remedial Action. — Paragraph (24) of section 101 of CERCLA (defining "remedy" and "remedial action") is amended as follows: (1) Strike "welfare. The term does not include offsite trans- port" and all that follows down through the semicolon at the end of such paragraph and insert "welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.". (2) Strike "or" before "contaminated materials" and insert "and associated". (e) Response.— Section 101(25) of CERCLA (defining "respond" and "response") is amended by inserting at the end thereof the following: ", all such terms (including the terms 'removal' and 'remedial action') include enforcement activities related thereto.". Post , p. 1652. 42 use 9601. 42 use 9607. -.v.;'^:- 100 STAT. 1616 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 9601. (f) Additional Definitions. — Section 101 of CERCLA is amended by striking out "; and" at the end of paragraph (31) and substituting a period, by changing the semicolons at the end of paragraphs (1) through (29) to periods, by inserting "The term" at the beginning of paragraphs (1) through (22) and paragraphs (28) and (31), by insert- ing "The terms" at the beginning of paragraphs (23) through (27) and paragraphs (29), (30), and (32) by striking out ", the term" in the material preceding paragraph (1), and by adding the following new paragraphs at the end thereof: "(33) The term 'pollutant or contaminant' shall include, but not be limited to, any element, substance, compound, or mix- ture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behav- ioral abnormalities, cancer, genetic mutation, physiological mal- functions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring; except that the term 'pollutant or contaminant' shall not include petro- leum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous sub- stance under subparagraphs (A) through (F) of paragraph (14) and shall not include natural gas, liquefied natural gas, or synthetic gas of pipeline quality (or mixtures of natural gas and such synthetic gas). "(34) The term 'alternative water supplies' includes, but is not limited to, drinking water and household water supplies. "(35XA) The term 'contractual relationship', for the purpose 42 use 9607. of section 107(bX3), includes, but is not limited to, land con- tracts, deeds or other instruments transferring title or posses- sion, unless the real property on which the facility concerned is located was acquired by the defendant after the disposal or placement of the hazardous substance on, in, or at the facility, and one or more of the circumstances described in clause (i), (ii), or (iii) is also established by the defendant by a preponderance of the evidence: "(i) At the time the defendant acquired the facility the defendant did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in, or at the facility. "(ii) The defendant is a government entity which ac- quired the facility by escheat, or through any other involun- tary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation. "(iii) The defendant acquired the facility by inheritance or bequest. In addition to establishing the foregoing, the defendant must establish that he has satisfied the requirements of section 107(bX3) (a) and (b). "(B) To establish that the defendant had no reason to know, as provided in clause (i) of subparagraph (A) of this paragraph, the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For purposes of the PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT.. 1617 preceding sentence the court shall take into account any specialized knowledge or experience on the part of the defend- ant, 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 appro- priate inspection. "(C) Nothing in this paragraph or in section 107(b)(3) shall diminish the liability of any previous owner or operator of such facility who would otherwise be liable under this Act. Notwith- standing this paragraph, if the defendant obtained actual knowledge of the release or threatened release of a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to another person without disclosing such knowledge, such defendant shall be treated as liable under section 107(a)(1) and no defense under section 107(b)(3) shall be available to such defendant. "(D) Nothing in this paragraph shall affect the liability under this Act of a defendant who, by any act or omission, caused or contributed to the release or threatened release of a hazardous substance which is the subject of the action relating to the facility. "(36) The term 'Indian tribe' means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village but not including any Alaska Native regional or village corporation, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.". SEC. 102. REPORTABLE QUANTITIES. Section 102(a) of CERCLA is amended by adding at the end thereof the following new sentences: "For all hazardous substances for which proposed regulations establishing reportable quantities were published in the Federal Register under this subsection on or before March 1, 1986, the Administrator shall promulgate under this subsection final regulations establishing reportable quantities not later than December 31, 1986. For all hazardous substances for which proposed regulations establishing reportable quantities were not published in the Federal Register under this subsection on or before March 1, 1986, the Administrator shall publish under this subsection proposed regulations establishing reportable quantities not later than December 31, 1986, and promulgate final regulations under this subsection establishing reportable quantities not later than April 30, 1988.". SEC. 103. NOTICES; PENALTIES. Section 103(b) of CERCLA is amended by striking out "paragraph" in the last sentence and inserting in lieu thereof "subsection" and by adjusting the left hand margin of the text of such subsection following "federally permitted release," the third place it appears so that there is no indentation of such text. SEC. 104. RESPONSE AUTHORITIES. (a) Response by Potentially Responsible Parties; Public Health Threats.— Section 104(a)(1) of CERCLA is amended by 42 use 9607. Real property. Regulations. 42 use 9602. Federal Register, publication. Post, p. 1632. President of U.S. 42 use 9604. 100 STAT. 1618 PUBLIC LAW 99-499— OCT. 17, 1986 striking ", unless the President determines" and all that follows down through "party." and inserting a period and the following: "When the President determines that such action will be done properly and promptly by the owner or operator of the facility or vessel or by any other responsible party, the President may allow such person to carry out the action, conduct the remedial investiga- tion, or conduct the feasibility study in accordance with section 122. No remedial investigation or feasibility study (RI/FS) shall be au- thorized except on a determination by the President that the party is qualified to conduct the RI/FS and only if the President contracts with or arranges for a qualified person to assist the President in overseeing and reviewing the conduct of such RI/FS and if the responsible party agrees to reimburse the Fund for any cost in- curred by the President under, or in connection with, the oversight contract or arrangement. In no event shall a potentially responsible party be subject to a lesser standard of liability, receive preferential treatment, or in any other way, whether direct or indirect, benefit from any such arrangements as a response action contractor, or as a person hired or retained by such a response action contractor, with respect to the release or facility in question. The President shall give primary attention to those releases which the President deems may present a public health threat.". 42 use 9604. (b) REMOVAL AcTiON.— Section 104(a)(2) of CERCLA is amended to read as follows: "(2) Removal Action. — Any removal action undertaken by the President under this subsection (or by any other person referred to in section 122) should, to the extent the President deems practicable, contribute to the efficient performance of any long term remedial action with respect to the release or threatened release concerned.". (c) Limitations on Response. — Section 104(a) of CERCLA is fur- ther amended by adding after paragraph (2) the following new paragraphs: "(3) Limitations on Response.— The President shall not provide for a removal or remedial action under this section in response to a release or threat of release — "(A) of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring processes or phenomena, from a location where it is naturally found; "(B) from products which are part of the structure of, and result in exposure within, residential buildings or business or community structures; or "(C) into public or private drinking water supplies due to deterioration of the system through ordinary use. "(4) Exception to Limitations. — Notwithstanding paragraph (3) of this subsection, to the extent authorized by this section, the President may respond to any release or threat of release if in the President's discretion, it constitutes a public health or environ- mental emergency and no other person with the authority and capability to respond to the emergency will do so in a timely manner.". (d) Coordination of Investigations. — Section 104(b) of CERCLA is amended by inserting "(1) Information; Studies and Investiga- tions. — " after "(b)" and by adding at the end thereof the following new paragraph: "(2) CooRDiNATioiM OF INVESTIGATIONS.— The President shall promptly notify the appropriate Federal and State natural resource trustees of potential damages to natural resources resulting from PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1619 releases under investigation pursuant to this section and shall seek to coordinate the assessments, investigations, and planning under this section with such Federal and State trustees.", (e) Initial Obligation of Fund. — (1) Limitation.— Section 104(c)(1) of CERCLA is amended by 42 USC 9604. striking out "$1,000,000" and "six months" and inserting in lieu thereof "$2,000,000" and "12 months", respectively. (2) Continued response. — Section 104(c)(1) of CERCLA is amended by inserting before "obligations" the following: "or (C) continued response action is otherwise appropriate and consist- ent with the remedial action to be taken". (0 Facilities Owned and Operated by States. — Paragraph (3) of section 104(c) of CERCLA is amended by striking out "(ii) at least" Post, p. 1705. and all that follows through the period at the end thereof and inserting "(ii) 50 percent (or such greater amount as the President may determine appropriate, taking into account the degree of responsibility of the State or political subdivision for the release) of any sums expended in response to a release at a facility, that was operated by the State or a political subdivision thereof, either directly or through a contractual relationship or otherwise, at the time of any disposal of hazardous substances therein. For the pur- pose of clause (ii) of this subparagraph, the term 'facility' does not include navigable waters or the beds underlying those waters.", (g) Cross Reference to Cleanup Standards.— Section 104(c)(4) of CERCLA is amended to read as follows: "(4) Selection of Remedial Action. — The President shall select remedial actions to carry out this section in accordance with section 121 of this Act (relating to cleanup standards).". (h) State Credits.— Section 104(c) of CERCLA is amended by adding the following new paragraph after paragraph (4): "(5) State Credits. — "(A) Granting of credit.— The President shall grant a State Contracts. a credit against the share of the costs, for which it is responsible under paragraph (3) with respect to a facility listed on the National Priorities List under the National Contingency Plan, for amounts expended by a State for remedial action at such facility pursuant to a contract or cooperative agreement with the President. The credit under this paragraph shall be limited to those State expenses which the President determines to be reasonable, documented, direct out-of-pocket expenditures of non-Federal funds. "(B) Expenses before listing or agreement.— The credit under this paragraph shall include expenses for remedial action at a facility incurred before the listing of the facility on the National Priorities List or before a contract or cooperative agreement is entered into under subsection (d) for the facility if- "(i) after such expenses are incurred the facility is listed on such list and a contract or cooperative agreement is entered into for the facility, and "(ii) the President determines that such expenses would have been credited to the State under subparagraph (A) had the expenditures been made after listing of the facility on such list and alter the date on which such contract or cooperative agreement is entered into. "(C) Response actions between i978 and 1980.— The credit Claims. under this paragraph shall include funds expended or obligated s 100 STAT. 1620 PUBLIC LAW 99-499— OCT. 17, 1986 by the State or a political subdivision thereof after January 1, 1978, and before December 11, 1980, for cost-eligible response actions and claims for damages compensable under section 111. "(D) State expenses after December ii, i980, in excess of lo PERCENT OF COSTS. — The Credit under this paragraph shall in- clude 90 percent of State expenses incurred at a facility owned, but not operated, by such State or by a political subdivision Contracts. thereof. Such credit applies only to expenses incurred pursuant to a contract or cooperative agreement under subsection (d) and only to expenses incurred after December 11, 1980, but before the date of the enactment of this paragraph. "(E) Item-by-item APPROVAL. — In the case of expenditures made after the date of the enactment of this paragraph, the President may require prior approval of each item of expendi- ture as a condition of granting a credit under this paragraph. "(F) Use of credits. — Credits granted under this paragraph for funds expended with respect to a facility may be used by the State to reduce all or part of the share of costs otherwise required to be paid by the State under paragraph (3) in connec- tion with remedial actions at such facility. If the amount of funds for which credit is allowed under this paragraph exceeds such share of costs for such facility, the State may use the amount of such excess to reduce all or part of the share of such costs at other facilities in that State. A credit shall not entitle the State to any direct payment.". (i) Treatment of Certain Activities as Maintenance or Remedial Action. — Section 104(c) of CERCLA is amended by adding the following new paragraphs after paragraph (5): "(6) Operation and Maintenance. — For the purposes of para- graph (3) of this subsection, in the case of ground or surface water contamination, completed remedial action includes the completion of treatment or other measures, whether taken onsite or offsite, necessary to restore ground and surface water quality to a level that assures protection of human health and the environment. With respect to such measures, the operation of such measur^ for a period of up to 10 years after the construction or installation and commencement of operation shall be considered remedial action. Activities required to maintain the effectiveness of such measures following such period or the completion of remedial action, which- ever is earlier, shall be considered operation or maintenance. "(7) Limitation on Source of Funds for O&M. — During any period after the availability of funds received by the Hazardous Substance Superfund established under subchapter A of chapter 98 26 use 9501 of the Internal Revenue Code of 1954 from tax revenues or appro- priations from general revenues, the Federal share of the payment of the cost of operation or maintenance pursuant to paragraph (3XCXi) or paragraph (6) of this subsection (relating to operation and maintenance) shall be from funds received by the Hazardous Sub- stance Superfund from amounts recovered on behalf of such fund under this Act.". (j) Recontracting.— Section 104(c) of CERCLA is amended by adding the following new paragraph after paragraph (7): "(8) Recontracting.— The President is authorized to undertake or continue whatever interim remedial actions the President deter- mines to be appropriate to reduce risks to public health or the environment where the performance of a complete remedial action requires recontracting because of the discovery of sources, types, or PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1621 quantities of hazardous substances not known at the time of entry into the original contract. The total cost of interim actions under- taken at a facility pursuant to this paragraph shall not exceed $2,000,000.". (k) Siting.— Section 104(c) of CERCLA is amended by adding the following new paragraph after paragraph (8): "(9) Siting. — Effective 3 years after the enactment of the Contracts. Superfund Amendments and Reauthorization Act of 1986, the Presi- dent shall not provide any remedial actions pursuant to this section unless the State in which the release occurs first enters into a contract or cooperative agreement with the President providing assurances deemed adequate by the President that the State will assure the availability of hazardous waste treatment or disposal facilities which — "(A) have adequate capacity for the destruction, treatment, or secure disposition of all hazardous wastes that are reasonably expected to be generated within the State during the 20-year period following the date of such contract or cooperative agree- ment and to be disposed of, treated, or destroyed, "(B) are within the State or outside the State in accordance with an interstate agreement or regional agreement or authority, "(C) are acceptable to the President, and "(D) are in compliance with the requirements of subtitle C of the Solid Waste Disposal Act.". 42 USC 6921. (1) Cooperative Agreements With States. — Section 104(d)(1) of CERCLA is amended to read as follows: "(1) Cooperative Agreements. — "(A) State applications. — A State or political subdivision thereof or Indian tribe may apply to the President to carry out actions authorized in this section. If the President determines Indians, that the State or political subdivision or Indian tribe has the capability to carry out any or all of such actions in accordance with the criteria and priorities established pursuant to section 105(a)(8) and to carry out related enforcement actions, the 42 USC 9605. President may enter into a contract or cooperative agreement with the State or political subdivision or Indian tribe to carry out such actions. The President shall make a determination regarding such an application within 90 days after the Presi- dent receives the application. "(B) Terms and conditions. — A contract or cooperative agree- ment under this paragraph shall be subject to such terms and conditions as the President may prescribe. The contract or cooperative agreement may cover a specific facility or specific facilities. "(C) Reimbursements. — Any State which expended funds during the period beginning September 30, 1985, and ending on the date of the enactment of this subparagraph for response actions at any site included on the National Priorities List and subject to a cooperative agreement under this Act shall be reimbursed for the share of costs of such actions for which the Federal Government is responsible under this Act.". (m) Information Gathering and Access Authorities. — Section 104(e) of CERCLA is amended by redesignating paragraph (2) as paragraph (7) and aligning the margin of such paragraph with paragraphs (1) through (6) of such subsection, by inserting "Con- fidentiauty of information. — " before "(A) Any records", by strik- 10 100 STAT. 1622 PUBLIC LAW 99-499— OCT. 17, 1986 Law enforcement and crime. Vessels. Vessels. Vessels. ing out paragraph (1), and by striking out "(e)" and inserting in lieu thereof the following: "(e) Information Gathering and Access. — "(1) Action authorized. — Any officer, employee, or rep- resentative of the President, duly designated by the President, is authorized to take action under paragraph (2), (3), or (4) (or any combination thereof) at a vessel, facility, establishment, place, property, or location or, in the case of paragraph (3) or (4), at any vessel, facility, establishment, place, property, or location which is adjacent to the vessel, facility, establishment, place, property, or location referred to in such paragraph (3) or (4). Any duly designated officer, employee, or representative of a State or political subdivision under a contract or cooperative agreement under subsection (dXD is also authorized to take such action. The authority of paragraphs (3) and (4) may be exercised only if there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance or pollutant or contaminant. The authority of this subsection may be exercised only for the purposes of determining the need for response, or choosing or taking any response action under this title, or otherwise enforcing the provisions of this title. "(2) Access to information. — Any officer, employee, or rep- resentative described in paragraph (1) may require any person who has or may have information relevant to any of the follow- ing to furnish, upon reasonable notice, information or docu- ments relating to such matter: "(A) The identification, nature, and quantity of materials which have been or are generated, treated, stored, or dis- posed of at a vessel or facility or transported to a vessel or facility. "(B) The nature or extent of a release or threatened release of a hatzardous substance or pollutant or contami- nant at or from a vessel or facility. "(C) Information relating to the ability of a person to pay for or to perform a cleanup. In addition, upon reasonable notice, such person either (i) shall grant any such officer, employee, or representative access at all reasonable times to any vessel, facility, establishment, place, property, or location to inspect and copy all documents or records relating to such matters or (ii) shall copy and furnish to the officer, employee, or representative all such documents or records, at the option and expense of such person. "(3) Entry. — Any officer, employee, or representative de- scribed in paragraph (1) is authorized to enter at reasonable times any of the following: "(A) Any vessel, facility, establishment, or other place or property where any hazardous substance or pollutant or contaminant may be or has been generated, stored, treated, disposed of, or transported from. "(B) Any vessel, facility, establishment, or other place or property from which or to which a hazardous substance or pollutant or contaminant has been or may have been released. "(C) Any vessel, facility, establishment, or other place or property where such release is or may be threatened. "(D) Any vessel, facility, establishment, or other place or property where entry is needed to determine the need for 11 ^•^. PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1623 Law enforcement and crime. response or the appropriate response or to effectuate a response action under this title. '(4) Inspection and samples. — "(A) Authority. — Any officer, employee or representa- Vessels tive described in paragraph (1) is authorized to inspect and obtain samples from any vessel, facility, establishment, or other place or property referred to in paragraph (3) or from any location of any suspected hazardous substance or pollutant or contaminant. Any such officer, employee, or representative is authorized to inspect and obtain samples of any containers or labeling for suspected hazardous sub- stances or pollutants or contaminants. Each such inspection shall be completed with reasonable promptness. "(B) Samples.— If the officer, employee, or representative obtains any samples, before leaving the premises he shall give to the owner, operator, tenant, or other person in charge of the place from which the samples were obtained a receipt describing the sample obtained and, if requested, a portion of each such sample. A copy of the results of any analysis made of such samples shall be furnished promptly to the owner, operator, tenant, or other person in charge, if such person can be located. '(5) Compliance orders. — "(A) Issuance. — If consent is not granted regarding any request made by an officer, employee, or representative under paragraph (2), (3), or (4), the President may issue an order directing compliance with the request. The order may be issued after such notice and opportunity for consultation as is reasonably appropriate under the circumstances. "(B) Compliance. — The President may ask the Attorney General to commence a civil action to compel compliance with a request or order referred to in subparagraph (A). Where there is a reasonable basis to believe there may be a release or threat of a release of a hazardous substance or pollutant or contaminant, the court shall take the following actions: "(i) In the case of interference with entry or inspec- tion, the court shall enjoin such interference or direct compliance with orders to prohibit interference with entry or inspection unless under the circumstances of the case the demand for entry or inspection is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. "(ii) In the case of information or document requests or orders, the court shall enjoin interference with such information or document requests or orders or direct compliance with the requests or orders to provide such information or documents unless under the cir- cumstances of the case the demand for information or documents is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. The court may assess a civil penalty not to exceed $25,000 for each day of noncompliance against any person who unreasonably fails to comply with the provisions of para- graph (2), (3), or (4) or an order issued pursuant to subpara- graph (A) of this paragraph. 12 100 STAT. 1624 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 9604. Classified information. Public information. "(6) Other authority.— Nothing in this subsection shall pre- clude the President from securing access or obtaining informa- tion in any other lawful manner.", (n) Basis for Withholding Information. — Paragraph (7) of sec- tion 104(e) of CERCLA (formerly paragraph (2), as redesignated by subsection (1) of this section) is amended by adding the following new subparagraphs at the end thereof: "(E) No person required to provide information under this Act may claim that the information is entitled to protection under this paragraph unless such person shows each of the following: "(i) Such person has not disclosed the information to any other person, other than a member of a local emergency planning committee established under title III of the Amendments and Reauthorization Act of 1986, an officer or employee of the United States or a State or local govern- ment, an employee of such person, or a person who is bound by a confidentiality agreement, and such person has taken reasonable measures to protect the confidentiality of such information and intends to continue to take such measures. "(ii) The information is not required to be disclosed, or otherwise made available, to the public under any other Federal or State law. "(iii) Disclosure of the information is likely to cause substantial harm to the competitive position of such person. "(iv) The specific chemical identity, if sought to be protected, is not readily discoverable through reverse engineering. "(F) The following information with respect to any hazardous substance at the facility or vessel shall not be entitled to protection under this paragraph: "(i) The trade name, common name, or generic class or category of the hazardous substance. "(ii) The physical properties of the substance, including its boiling point, melting point, flash point, specific gravity, vapor density, solubility in water, and vapor pressure at 20 degrees Celsius. "(iii) The hazards to health and the environment posed by the substance, including physical hazards (such as explo- sion) and potential acute and chronic health hazards. "(iv) The potential routes of human exposure to the substance at the facility, establishment, place, or property being investigated, entered, or inspected under this subsection. "(v) The location of disposal of any waste stream. "(vi) Any monitoring data or analysis of monitoring data pertaining to disposal activities. "(vii) Any hydrogeologic or geologic data, "(viii) Any groundwater monitoring data.". (o) Acquisition of Property. — (1) In general. — Section 104 of CERCLA is amended by adding the following new subsection at the end thereof: "(j) Acquisition of Property. — "(1) Authority. — The President is authorized to acquire, by purchase, lease, condemnation, donation, or otherwise, any real property or any interest in real property that the President in his discretion determines is needed to conduct a remedial action under this Act. There shall be no cause of action to compel the 13 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1625 President to acquire any interest in real property under this Act. "(2) State assurance. — The President may use the authority Contracts. of paragraph (1) for a remedial action only if, before an interest in real estate is acquired under this subsection, the State in which the interest to be acquired is located assures the Presi- dent, through a contract or cooperative agreement or otherwise, that the State will accept transfer of the interest following completion of the remedial action. "(3) Exemption. — No Federal, State, or local government agency shall be liable under this Act solely as a result of acquiring an interest in real estate under this subsection.". SEC. 105. NATIONAL CONTINGENCY PLAN. (a) Subsection (a) of Section 105.— Section 105 of CERCLA is 42 use 9605. amended as follows: (1) Heading. — Insert "(a) Revision and Republication. — " after "105.". (2) Hazard ranking system. — In paragraph (8XA) insert the following after "ecosystems,": "the damage to natural resources which may affect the human food chain and which is associated with any release or threatened release, the contamination or potential contamination of the ambient air which is associated with the release or threatened release,". (3) National priority ust. — In paragraph (8XB): (A) Strike out "at least four hundred of. (B) Strike out "facilities at least" and insert in lieu thereof "facilities". (C) Insert after "in such State." the following: "A State State and local shall be allowed to designate its highest priority facility governments, only once.". (4) Conforming amendment. — In paragraph (9) insert after "therefor" the following: "and including consideration of minor- ity firms in accordance with subsection (0". (5) Standards and procedures for innovative treatment technologies.— Strike out "and" at the end of paragraph (8), strike out the period at the end of paragraph (9) and insert in lieu thereof "; and", and insert after paragraph (9) the following new paragraph: "(10) standards and testing procedures by which alternative or innovative treatment technologies can be determined to be appropriate for utilization in response actions authorized by this Act.". (b) New Subsections.— Section 105 of CERCLA is amended by President of U.S. adding the following new subsections at the end thereof: "(b) Revision of Plan. — Not later than 18 months after the enactment of the Superfund Amendments and Reauthorization Act of 1986, the President shall revise the National Contingency Plan to reflect the requirements of such amendments. The portion of such Plan known as 'the National Hazardous Substance Response Plan' shall be revised to provide procedures and standards for remedial actions undertaken pursuant to this Act which are consistent with amendments made by the Superfund Amendments and Reauthoriza- tion Act of 1986 relating to the selection of remedial action. "(c) Hazard Ranking System.— Regulations. "(1) Revision. — Not later than 18 months after the enactment of the Superfund Amendments and Reauthorization Act of 1986 14 100 STAT. 1626 PUBLIC LAW 99-499— OCT. 17, 1986 Health and medical care. Health and medical care. and after publication of notice and opportunity for submission of comments in accordance with section 553 of title 5, United States Code, the President shall by rule promulgate amend- ments to the hazard ranking system in effect on September 1, 1984. Such amendments shall assure, to the maximum extent feasible, that the hazard ranking system accurately assesses the relative degree of risk to human health and the environment posed by sites and facilities subject to review. The President shall establish an effective date for the amended hazard rank- ing system which is not later than 24 months after enactment of the Superfund Amendments and Reauthorization Act of 1986. Such amended hazard ranking system shall be applied to any site or facility to be newly listed on the National Priorities List after the effective date established by the President. Until such effective date of the regulations, the hazard ranking system in effect on September 1, 1984, shall continue in full force and effect. "(2) Health assessment of water contamination risks.— In carrying out this subsection, the President shall ensure that the human health risks associated with the contamination or poten- tial contamination (either directly or as a result of the runoff of any hazardous substance or pollutant or contaminant from sites or facilities) of surface water are appropriately assessed where such surface water is, or can be, used for recreation or potable water consumption. In making the assessment required pursu- ant to the preceding sentence, the President shall take into account the potential migration of any hazardous substance or pollutant or contaminant through such surface water to down- stream sources of drinking water. "(3) Reevaluation not required. — The President shall not be required to reevaluate, after the date of the enactment of the Suj)erfund Amendments and Reauthorization Act of 1986, the hazard ranking of any facility which was evaluated in accord- ance with the criteria under this section before the effective date of the amendments to the hazard ranking system under this subsection and which was assigned a national priority under the National Contingency Plan. "(4) New information. — Nothing in paragraph (3) shall pre- clude the President from taking new information into account in undertaking response actions under this Act. "(d) Petition for Assessment of Release. — Any f)erson who is, or may be, affected by a release or threatened release of a hazardous substance or pollutant or contaminant, may petition the President to conduct a preliminary assessment of the hazards to public health and the environment which are associated with such release or threatened release. If the President has not previously conducted a preliminary assessment of such release, the President shall, within 12 months after the receipt of any such petition, complete such assessment or provide an explanation of why the assessment is not appropriate. If the preliminary assessment indicates that the release or threatened release concerned may pose a threat to human health or the environment, the President shall promptly evaluate such release or threatened release in accordance with the hazard ranking system referred to in paragraph (8)(A) of subsection (a) to determine the national priority of such release or threatened release. "(e) Releases From Earlier Sites.— Whenever there has been, after January 1, 1985, a significant release of hazardous substances 15 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1627 or pollutants or contaminants from a site which is listed by the President as a 'Site Cleaned Up To Date' on the National Priorities List (revised edition, December 1984) the site shall be restored to the National Priorities List, without application of the hazard ranking system. "(f) Minority Contractors. — In awarding contracts under this Act, the President shall consider the availability of qualified minor- ity firms. The President shall describe, as part of any annual report Reports, submitted to the Congress under this Act, the participation of minority firms in contracts carried out under this Act. Such report shall contain a brief description of the contracts which have been awarded to minority firms under this Act and of the efforts made by the President to encourage the participation of such firms in pro- grams carried out under this Act. "(g) Special Study Wastes.— "(1) Application.— This subsection applies to facilities— "(A) which as of the date of enactment of the Superfund Amendments and Reauthorization Act of 1986 were not included on, or proposed for inclusion on, the National Priorities List; and "(B) at which special study wastes described in paragraph (2), (3)(A)(ii) or (3)(A)(iii) of section 3001(b) of the Solid Waste Disposal Act are present in significant quantities, including 42 USC 6921. any such facility from which there has been a release of a special study waste. "(2) Considerations in adding facilities to NPL.—Pending revision of the hazard ranking system under subsection (c), the President shall consider each of the following factors in adding facilities covered by this section to the National Priorities List: "(A) The extent to which hazard ranking system score for the facility is affected by the presence of any special study waste at, or any release from, such facility. "(B) Available information as to the quantity, toxicity, and concentration of hazardous substances that are constituents of any special study waste at, or released from such facility, the extent of or potential for release of such hazardous constituents, the exposure or potential exposure to human population and the environment, and the degree of hazard to human health or the environment posed by the release of such hazardous constituents at such facility. This subparagraph refers only to available information on actual concentrations of hazardous substances and not on the total quantity of special study waste at such facility. "(3) Savings provisions.— Nothing in this subsection shall be construed to limit the authority of the President to remove any facility which as of the date of enactment of the Superfund Amendments and Reauthorization Act of 1986 is included on the National Priorities List from such List, or not to list any facility which as of such date is proposed for inclusion on such list. "(4) Information gathering and analysis.— Nothing in this Act shall be construed to preclude the expenditure of monies from the Fund for gathering and analysis of information which will enable the President to consider the specific factors re- quired by paragraph (2).". 75-032 0-90 16 100 STAT. 1628 PUBLIC LAW 99-499— OCT. 17, 1986 Claims SEC. 106. REIMBURSEMENT. Post, p. 1633. Section 106(b) of CERCLA is amended as follows: (1) Insert "(1)" after "(b)". (2) Strike out "who willfully" and insert "who, without suffi- cient cause, willfully". (3) Add at the end thereof the following new paragraph: "(2XA) Any person who receives and complies with the terms of any order issued under subsection (a) may, within 60 days after completion of the required action, petition the President for reimbursement from the Fund for the reasonable costs of such action, plus interest. Any interest payable under this paragraph shall accrue on the amounts expended from the date of expenditure at the same rate as specified for interest on investments of the Hazardous Substance Superfund established under subchapter A of chapter 98 of the Internal Revenue cixle 26 use 9501. of 1954. "(B) If the President refuses to grant all or part of a petition made under this paragraph, the petitioner may within 30 days of receipt of such refusal file an action against the President in the appropriate United States district court seeking reimburse- ment from the Fund. "(C) Except as provided in subparagraph (D), to obtain re- imbursement, the petitioner shall establish by a preponderance of the evidence that it is not liable for response costs under 42 use 9607. section 107(a) and that costs for which it seeks reimbursement are reasonable in light of the action required by the relevant order. "(D) A petitioner who is liable for response costs under section 107(a) may also recover its reasonable costs of response to the extent that it can demonstrate, on the administrative record, that the President's decision in selecting the response action ordered was arbitrary and capricious or was otherwise not in accordance with law. Reimbursement awarded under this subparagraph shall include all reasonable response costs in- curred by the petitioner pursuant to the portions of the order found to be arbitrary and capricious or otherwise not in accord- ance with law. "(E) Reimbursement awarded by a court under subparagraph (C) or (D) may include appropriate costs, fees, and other ex- penses in accordance with subsections (a) and (d) of section 2412 of title 28 of the United States Code.". 42 use 9607. SEC. 107. LIABILITY. (a) Foreign Vessels. — Section 107(aXl) of CERCLA is amended by striking out "(otherwise subject to the jurisdiction of the United States)^'. Post, p. 1705. (b) Recoverable Costs and Damages. — Section 107(a) of CERCLA is amended by striking out "and" at the end of subparagraph (B), striking out the period at the end of subparagraph (C) and inserting "; and" and inserting at the end thereof the following: "(D) the costs of any health assessment or health effects Post, p. 1636. study carried out under section 104(i). 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 17 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1629 outstanding unpaid balance of the amounts recoverable under this section shall be the same rate as is specified for interest on invest- ments of the Hazardous Substance Superfund established under subchapter A of chapter 98 of the Internal Revenue Code of 1954. 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.". (c) Rendering Care or Advice; Emergency Response Actions — Section 107(d) of CERCLA is amended to read as follows: "(d) Rendering Care or Advice. — "(1) In general. — Except as provided in paragraph (2), no person shall be liable under this title for costs or damages as a result of actions taken or omitted in the course of rendering care, assistance, or advice in accordance with the National Contingency Plan ('NCP') or at the direction of an onscene coordinator appointed under such plan, with respect to an incident creating a danger to public health or welfare or the environment as a result of any releases of a hazardous sub- stance or the threat thereof. This paragraph shall not preclude liability for costs or damages as the result of negligence on the part of such person. "(2) State and local governments. — No State or local government shall be liable under this title for costs or damages as a result of actions taken in response to an emergency created by the release or threatened release of a hazardous substance generated by or from a facility owned by another person. This paragraph shall not preclude liability for costs or damages as a result of gross negligence or intentional misconduct by the State or local government. For the purpose of the preceding sentence, reckless, willful, or wanton misconduct shall constitute gross negligence. "(3) Savings provision. — This subsection shall not alter the liability of any person covered by the provisions of paragraph (1), (2), (3), or (4) of subsection (a) of this section with respect to the release or threatened release concerned.". (d) Natural Resources — (1) Designation of federal and state officials.— Section 107(f) of CERCLA is amended by inserting "(1) Natural Resources Liability. — " after "(f)" and by adding at the end thereof the following new paragraphs: "(2) Designation of federal and state officials. — "(A) Federal. — The President shall designate in the Na- tional Contingency Plan published under section 105 of this Act the Federal officials who shall act on behalf of the public as trustees for natural resources under this Act and section 311 of the Federal Water Pollution Control Act. Such officials shall assess damages for injury to, destruction of, or loss of natural resources for purposes of this Act and such section 311 for those resources under their trusteeship and may, upon reouest of and reimbursement from a State and at the Federal officials' discretion, assess damages for those natural resources under the State's trusteeship. "(B) State.— The Governor of each State shall designate State officials who may act on behalf of the public as trustees for natural resources under this Act and section 311 of the Federal Water Pollution Control Act and shall 26 use 9501. Claims. 42 use 9607. Health and medical care. Post, p. 1705. President of U.S. 33 use 1321. 18 100 STAT. 1630 PUBLIC LAW 99-499— OCT. 17, 1986 use 1321. 33 use 1321. 42 use 9651. 42 use 9607. President of U.S. 42 use 9651. 42 use 9607. eiaims. Real property. notify the President of such designations. Such State offi- cials shall assess damages to natural resources for the purposes of this Act and such section 311 for those natural resources under their trusteeship. "(C) Rebuttable presumption.— Any determination or assessment of damages to natural resources for the pur- poses of this Act and section 311 of the Federal Water Pollution Control Act made by a Federal or State trustee in accordance with the regulations promulgated under section 301(c) of this Act shall have the force and effect of a rebuttable presumption on behalf of the trustee in any administrative or judicial proceeding under this Act or section 311 of the Federal Water Pollution Control Act.". (2) Use of recovered funds.— Section 107(fKl) of CERCLA (as designated by paragraph (1) of this subsection) is amended by striking out the third sentence and inserting in lieu thereof the following: "Sums recovered by the United States Government as trustee under this subsection shall be retained by the trustee, without further appropriation, for use only to restore, replace, or acquire the equivalent of such natural resources. Sums recov- ered by a State as trustee under this subsection shall be avail- able for use only to restore, replace, or acquire the equivalent of such natural resources by the State. The measure of damages in any action under subparagraph (C) of subsection (a) shall not be limited by the sums which can be used to restore or replace such resources. There shall be no double recovery under this Act for natural resource damages, including the costs of damage assess- ment or restoration, rehabilitation, or acquisition for the same release and natural resource". (3) Deadune for section 301 regulations.— Section 301(cHl) of CERCLA is amended by adding the following at the end thereof: "Notwithstanding the failure of the President to promulgate the regulations required under this subsection on the required date, the President shall promulgate such regula- tions not later than 6 months after the enactment of the Superfund Amendments and Reauthorization Act of 1986.". (e) Federal Agencies.— Section 107(g) of CERCLA is amended to read as follows: "(g) Federal Agencies. — For provisions relating to Federal agen- cies, see section 120 of this Act." (0 Federal Lien —Section 107 of CERCLA is amended by adding at the end thereof the following new subsection: "(1) Federal Lien. — "(1) In general.— All costs and damages for which a pereon is liable to the United States under subsection (a) of this section (other than the owner or operator of a vessel under paragraph (1) of subsection (a)) shall constitute a lien in favor of the United States upon all real property and rights to such property which — "(A) belong to such person; and "(B) are subject to or affected by a removal or remedial action. "(2) Duration.— The lien imposed by this subsection shall arise at the later of the following: "(A) The time costs are first incurred by the United States with respect to a response action under this Act. 19 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1631 "(B) The time that the person referred to in paragraph (1) is provided (by certified or registered mail) written notice of potential habihty. Such lien shall continue until the liability for the costs (or a judgment against the person arising out of such liability) is satisfied or becomes unenforceable through operation of the statute of limitations provided in section 113. "(3) Notice and vaudity.— The lien imposed by this subsec- tion shall be subject to the rights of any purchaser, holder of a security interest, or judgment lien creditor whose interest is perfected under applicable State law before notice of the lien has been filed in the appropriate office within the State (or county or other governmental subdivision), as designated by State law, in which the real property subject to the lien is located. Any such purchaser, holder of a security interest, or judgment lien creditor shall be afforded the same protections against the lien imposed by this subsection as are afforded under State law against a judgment lien which arises out of an unsecured obligation and which arises as of the time of the filing of the notice of the lien imposed by this subsection. If the State has not by law designated one office for the receipt of such notices of liens, the notice shall be filed in the office of the clerk of the United States district court for the district in v/hich the real property is located. For purposes of this subsection, the terms 'purchaser' and 'security interest' shall have the defini- tions provided under section 6323(h) of the Internal Revenue Code of 1954. "(4) Action in rem.— The costs constituting the lien may be recovered in an action in rem in the United States district court for the district in which the removal or remedial action is occurring or has occurred. Nothing in this subsection shall affect the right of the United States to bring an action against any person to recover all costs and damages for which such person is liable under sul^ection (a) of this section. "(m) Maritime Lien.— All costs and damages for which the owner or operator of a vessel is liable under subsection (aXD with respect to a release or threatened release from such vessel shall constitute a maritime hen in favor of the United States on such vessel. Such costs may be recovered in an action in rem in the district court of the United States for the district in which the vessel may be found. Nothing in this subsection shall affect the right of the United States to bring an action against the owner or operator of such vessel in any court of competent jurisdiction to recover such costs.". SEC. 108. FINANCIAL RESPONSIBILITY. (a) Evidence of Financial Responsibility.- Section 108(bX2) of CERCLA is amended by adding the following at the end thereof: "Financial responsibility may be established by any one, or any combination, of the following: insurance, guarantee, surety bond, letter of credit, or qualification as a self-insurer. In promulgating requirements under this section, the President is authorized to specify policy or other contractual terms, conditions, or defenses which are necessary, or which are unacceptable, in establishing such evidence of financial responsibility in order to effectuate the pur- (b) Phase-In Period.— Section 108(bX3) of CERCLA is amended by striking out "over a period of not less than three and no more than Post, 1647. State and local governments. 26 use 6323. 42 use 9608. President of U.S 20 100 STAT. 1632 PUBLIC LAW 99-499— OCT. 17, 1986 six years" and inserting in lieu thereof "as quickly as can reason- ably be achieved but in no event more than 4 years". Claims. (c) DiRECT AcTiON; LiABiUTY.— Subsections (c) and (d) of section 42 use 9608 108 of CERCLA are amended to read as follows: "(c) Direct Action. — "(1) Releases from vessels.— In the case of a release or threatened release from a vessel, any claim authorized by sec- tion 107 or 111 may be asserted directly against any guarantor providing evidence of financial responsibility for such vessel under subsection (a). In defending such a claim, the guarantor may invoke all rights and defenses which would be available to the owner or operator under this title. The guarantor may also invoke the defense that the incident was caused by the willful misconduct of the owner or operator, but the guarantor may not invoke any other defense that the guarantor might have been entitled to invoke in a proceeding brought by the owner or operator against him. "(2) Releases from faciuties.— In the case of a release or threatened release from a facility, any claim authorized by section 107 or 111 may be asserted directly against any guaran- tor providing evidence of financial responsibility for such facil- ity under subsection (b), if the person liable under section 107 is in bankruptcy, reorganization, or arrangement pursuant to the 11 use 101 et Federal Bankruptcy Code, or if, with reasonable diligence, juris- ««9 diction in the Federal courts cannot be obtained over a person liable under section 107 who is likely to be solvent at the time of judgment. In the case of any action pursuant to this paragraph, the guarantor shall be entitled to invoke all rights and defenses which would have been available to the person liable under section 107 if any action had been brought against such person by the claimant and all rights and defenses which would have been available to the guarantor if an action had been brought against the guarantor by such person. "(d) Limitation of Guarantor Liability.— "(1) Total uabiltty.- The total liability of any guarantor in a direct action suit brought under this section shall be limited to the aggregate amount of the monetary limits of the policy of insurance, guarantee, surety bond, letter of credit, or similar instrument obtained from the guarantor by the person subject to liability under section 107 for the purpose of satisfying the requirement for evidence of financial responsibility. "(2) Other uabiltty.- Nothing in this subsection shall be construed to limit any other State or Federal statutory, contrac- tual, or common law liability of a guarantor, including, but not limited to, the liability of such guarantor for bad faith either in negotiating or in failing to negotiate the settlement of any claim. Nothing in this subsection shall be construed, inter- preted, or applied to diminish the liability of any person under section 107 of this Act or other applicable law.". 42 use 9603. SEC. 109. PENALTIES. (a) Violations and Criminal Penalties.— (1) Notice.— Section 103(b) of CERCLA is amended as follows: (A) Insert after "knowledge of such release" the follow- ing: "or who submits in such a notification any information which he knows to be false or misleading". 21 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1633 (B) Strike out "not more than $10,000 or imprisoned for not more than one year, or both" and insert in lieu thereof "in accordance with the applicable provisions of title 18 of the United States Code or imprisoned for not more than 3 years (or not more than 5 years in the case of a second or subsequent conviction), or both". (2) Destruction of records.— Section 103(dX2) of CERCLA is amended by striking out "not more than $20,000, or imprisoned for not more than one year or both." and inserting in lieu thereof "in accordance with the applicable provisions of title 18 of the United States Code or imprisoned for not more than 3 years (or not more than 5 years in the case of a second or subsequent conviction), or both.". (3) False information.— Section 112(bXl) of CERCLA is amended by striking out "up to $5,000 or imprisoned for not more than one year, or both" and inserting in lieu thereof "in accordance with the applicable provisions of title 18 of the United States Code or imprisoned for not more than 3 years (or not more than 5 years in the case of a second or subsequent conviction), or both". (b) Section 106 Penalty.— Section 106(b) of CERCLA is amended by striking out "$5,000" and inserting in lieu thereof "$25,000". (c) Civil Penalties and Awards.— Section 109 of CERCLA is amended to read as follows: "SEC. 109. CIVIL PENALTIES AND AWARDS. "(a) Class I Administrative Penalty.— "(1) Violations. — A civil penalty of not more than $25,000 per violation may be assessed by the President in the case of any of the following — "(A) A violation of the requirements of section 103 (a) or (b) (relating to notice). "(B) A violation of the requirements of section 103(dX2) (relating to destruction of records, etc.). "(C) A violation of the requirements of section 108 (relat- ing to financial responsibility, etc.), the regulations issued under section 108, or with any denial or detention order under section 108. "(D) A violation of an order under section 122(dX3) (relat- ing to settlement agreements for action under section 1040t))). "(E) Any failure or refusal referred to in section 122(1) (relating to violations of administrative orders, consent de- crees, or agreements under section 120). "(2) Notice and hearings. — No civil penalty may be assessed under this subsection unless the person accused of the violation is given notice and opportunity for a hearing with respect to the violation. "(3) Determining amount.— In determining the amount of any penalty assessed pursuant to this subsection, the President shall take into account the nature, circumstances, extent and gravity of the violation or violations and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any) result- ing from the violation, and such other matters as justice may require. 42 use 9603. 42 use 9612. 42 use 9606. President of U.S. 42 use 9609. 22 100 STAT. 1634 PUBLIC LAW 99-499— OCT. 17, 1986 Records. Ante, p. 1632. Ante, p. 1633. "(4) Review. — Any person against whom a civil penalty is assessed under this subsection may obtain review thereof in the appropriate district court of the United States by filing a notice of appeal in such court within 30 days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the President. The President shall promptly file in such court a certified copy of the record upon which such violation was found or such penalty imposed. If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order or after the appropriate court has entered final judgment in favor of the United States, the Presi- dent may request the Attorney General of the United States to institute a civil action in an appropriate district court of the United States to collect the penalty, and such court shall have jurisdiction to hear and decide any such action. In hearing such action, the court shall have authority to review the violation and the assessment of the civil penalty on the record. "(5) Subpoenas.— The President may issue srbpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, or documents in connection with hear- ings under this subsection. In case of contumacy or refusal to obey a subpoena issued pursuant to this paragraph and served upon any person, the district court of the United States for any district in which such person is found, resides, or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requir- ing such person to appear and give testimony before the administrative law judge or to appear and produce documents before the administrative law judge, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof "(b) Class II Administrative Penalty.— A civil penalty of not more than $25,000 per day for each day during which the violation continues may be assessed by the President in the case of any of the following — "(1) A violation of the notice requirements of section 103 (a) or (b). "(2) A violation of section 103(d)(2) (relating to destruction of records, etc.). "(3) A violation of the requirements of section 108 (relating to financial responsibility, etc.), the regulations issued under sec- tion 108, or with any denial or detention order under section 108. "(4) A violation of an order under section 122(d)(3) (relating to settlement agreements for action under section 104(b)). "(5) Any failure or refusal referred to in section 122(1) (relat- ing to violations of administrative orders, consent decrees, or agreements under section 120). In the case of a second or subseauent violation the amount of such penalty may be not more than $75,000 for each day during which the violation continues. Any civil penalty under this subsection shall be assessed and collected in the same manner, and subject to the same provisions, as in the case of civil penalties assessed and collected after notice and opportunity for hearing on the record in accordance with section 554 of title 5 of the United States Code In any proceeding for the assessment of a civil penalty under this subsection the President may issue subpoenas for the attendance 23 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1635 and testimony of witnesses and the production of relevant papers, books, and documents and may promulgate rules for discovery procedures. Any person who requested a hearing with respect to a civil penalty under this subsection and who is aggrieved by an order assessing the civil penalty may file a petition for judicial review of such order with the United States Court of Appeals for the District of Columbia Circuit or for any other circuit in which such person resides or transacts business. Such a petition may only be filed within the 30-day period beginning on the date the order making such assessment was issued. "(c) Judicial Assessment. — The President may bring an action in the United States district court for the appropriate district to assess and collect a penalty of not more than $25,000 per day for each day during which the violation (or failure or refusal) continues in the case of any of the following— "(1) A violation of the notice requirements of section 103 (a) or (b). "(2) A violation of section 103(d)(2) (relating to destruction of records, etc.). "(3) A violation of the requirements of section 108 (relating to financial responsibility, etc.), the regulations issued under sec- tion 108, or with any denial or detention order under section 108. "(4) A violation of an order under section 122(d)(3) (relating to settlement agreements for action under section 104(b)). "(5) Any failure or refusal referred to in section 122(1) (relat- ing to violations of administrative orders, consent decrees, or agreements under section 120). In the case of a second or subsequent violation (or failure or refusal), the amount of such penalty may be not more than $75,000 for each day during which the violation (or failure or refusal) continues. For additional provisions providing for judicial assessment of civil pen- alties for failure to comply with a request or order under section 104(e) (relating to information gathering and access authorities), see section 104(e). "(d) Awards. — The President may pay an award of up to $10,000 to any individual who provides information leading to the arrest and conviction of any person for a violation subject to a criminal penalty under this Act, including any violation of section 103 and any other violation referred to in this section. The President shall, by regula- tion, prescribe criteria for such an award and may pay any award under this subsection from the Fund, as provided in section 111. "(e) Procurement Procedures. — Notwithstanding any other provision of law, any executive agency may use competitive proce- dures or procedures other than competitive procedures to procure the services of experts for use in preparing or prosecuting a civil or criminal action under this Act, whether or not the expert is ex- pected to testify at trial. The executive agency need not provide any written justification for the use of procedures other than competi- tive procedures when procuring such expert services under this Act and need not furnish for publication in the Commerce Business Daily or otherwise any notice of solicitation or synopsis with respect to such procurement. "(0 Savings Clause.— Action taken by the President pursuant to this section shall not affect or limit the President's authority to enforce any provisions of this Act.". District of Columbia. ;N^ o.v>: Ante, p. Ante, p. 1632. 1633. 42 use 9603. Regulations. 24 100 STAT. 1636 PUBLIC LAW 99-499— OCT. 17, 1986 SEC. 110. HEALTH-RELATED AUTHORITIES. 42 use 9604. Section 104(i) of CERCLA is amended as follows: (1) Insert "(1)" after "(i)" and redesignate paragraphs (1), (2), (3), (4), and (5) as subparagraphs (A), (B), (C), (D), and (E). (2) In paragraph (1), strike "and" after "Health Administra- tion," and insert after "Social Security Administration," the following: "the Secretary of Transportation, and appropriate State and local health officials,". (3) Insert after "chromosomal testing" in subparagraph (D) (as redesignated by paragraph (1) of this subsection) the following: "where appropriate". (4) Add the following new paragraphs at the end thereof: "(2XA) Within 6 months after the enactment of the Superfund Amendments and Reauthorization Act of 1986, the Administrator of the Agency for Toxic Substances and Disease Registry (ATSDR) and the Administrator of the Environmental Protection Agency (EPA) shall prepare a list, in order of priority, of at least 100 hazardous substances which are most commonly found at facilities on the National Priorities List and which, in their sole discretion, they determine are posing the most significant potential threat to human health due to their known or suspected toxicity to humans and the potential for human exposure to such substances at facilities on the National Priorities List or at facilities to which a response to a release or a threatened release under this section is under consideration. "(B) Within 24 months after the enactment of the Superfund Amendments and Reauthorization Act of 1986, the Administrator of ATSDR and the Administrator of EPA shall revise the list prepared under subparagraph (A). Such revision shall include, in order of priority, the addition of 100 or more such hazardous substances. In each of the 3 consecutive 12-month periods that follow, the Adminis- trator of ATSDR and the Administrator of EPA shall revise, in the same manner as provided in the 2 preceding sentences, such list to include not fewer than 25 additional hazardous substances per revision. The Administrator of ATSDR and the Administrator of EPA shall not less often than once every year thereafter revise such list to include additional hazardous substances in accordance with the criteria in subparagraph (A). "(3) Based on al) 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 toxi- cological profiles shall be prepared in accordance with guidelines developed by the Administrator of ATSDR and the Administrator of EPA. Such profiles shall include, but not be limited to each of the following: "(A) An examination, summary, and interpretation of avail- able toxicological information and epidemiologic evaluations on a hazardous substance in order to ascertain the levels of signifi- cant human exposure for the substance and the associated acute, subacute, and chronic health effects. "(B) A determination of whether adequate information on the health effects of each substance is available or in the process of development to determine levels of exposure which present a 25 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1637 significant risk to human health of acute, subacute, and chronic health effects. "(C) Where appropriate, an identification of toxicological test- ing needed to identify the types or levels of exposure that may present significant risk of adverse health effects in humans. Any toxicological profile or revision thereof shall reflect the 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 enact- ment of the Superfund Amendments and Reauthorization Act of 1986. A profile required on a substance listed pursuant to subpara- graph (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 para- graph (2) for which profiles have not previously been prepared. Profiles required under this paragraph shall be revised and repub- lished 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. "(4) The Administrator of the ATSDR shall provide consultations upon request on health issues relating to exposure to hazardous or toxic substances, on the basis of available information, to the Administrator of EPA, State officials, and local officials. Such con- sultations to individuals may be provided by States under coopera- tive agreements established under this Act. "(5)(A) For each hazardous substance listed pursuant to paragraph (2), the Administrator of ATSDR (in consultation with the Adminis- trator of EPA and other agencies and programs of the Public Health Service) shall assess whether adequate information on the health effects of such substance is available. For any such substance for which adequate information is not available (or under development), the Administrator of ATSDR, in cooperation with the Director of the National Toxicology Program, shall assure the initiation of a pro- gram of research designed to determine the health effects (and techniques for development of methods to determine such health effects) of such substance. Where feasible, such program shall seek to develop methods to determine the health effects of such substance in combination with other substances with which it is commonly found. Before assuring the initiation of such program, the Adminis- trator of ATSDR shall consider recommendations of the Interagency Testing Committee established under section 4(e) of the Toxic Sub- stances Control Act on the types of re&earch that should be done. 15 USC 2603 Such program shall include, to the extent necessary to supplement existing information, but shall not be limited to — "(i) laboratory and other studies to determine short, inter- mediate, and long-term health effects; "(ii) laboratory and other studies to determine organ-specific, site-specific, and system-specific acute and chronic toxicity; "(iii) laboratory and other studies to determine the manner in which such substances are metabolized or to otherwise develop an understanding of the biokinetics of such substances; and "(iv) where there is a possibility of obtaining human data, the collection of such information. State a.nd local governments. Research and development. 26 100 STAT. 1638 PUBLIC LAW 99-499— OCT. 17. 1986 15 use 2601 note. 7 use 136 note. Regulations. '« I "(B) In assessing the need to perform laboratory and other studies, as required by subparagraph (A), the Administrator of ATSDR shall consider — "(i) the availability and quality of existing test data concern- ing the substance on the suspected health effect in question; "(ii) the extent to which testing already in progress will, in a timely fashion, provide data that will be adequate to support the preparation of toxicological profiles as required by paragraph (3); and "(iii) such other scientific and technical factors as the Administrator of ATSDR may determine are necessary for the effective implementation of this subsection. "(C) In the development and implementation of any research program under this paragraph, the Administrator of ATSDR and the Administrator of EPA shall coordinate such research program implemented under this paragraph with the National Toxicology Program and with programs of toxicological testing established under the Toxic Substances Control Act and the Federal Insecticide, Fungicide and Rodenticide Act. The purpose of such coordination shall be to avoid duplication of effort and to assure that the hazardous substances listed pursuant to this subsection are tested thoroughly at the earliest practicable date. Where appropriate, consistent with such purpose, a research program under this para- graph may be carried out using such programs of toxicological testing. "(D) It is the sense of the Congress that the costs of research programs under this paragraph be borne by the manufacturers and processors of the hazardous substance in question, as required in programs of toxicological testing under the Toxic Substances Con- trol Act. Within 1 year after the enactment of the Superfund Amendments and Reauthorization Act of 1986, the Administrator of EPA shall promulgate regulations which provide, where appro- priate, for payment of such costs by manufacturers and processors under the Toxic Substances Control Act, and registrants under the Federal Insecticide, Fungicide, and Rodenticide Act, and recovery of such costs from responsible parties under this Act. "(6)(A) The Administrator of ATSDR shall perform a health assessment for each facility on the National Priorities List estab- Ushed under section 105. Such health assessment shall be completed not later than December 10, 1988, for each facility proposed for inclusion on such list prior to the date of the enactment of the Superfund Amendments and Reauthorization Act of 1986 or not later than one year after the date of proposal for inclusion on such list for each facility proposed for inclusion on such list after such date of enactment. "(B) The Administrator of ATSDR may perform health assess- ments for releases or facilities where individual persons or licensed physicians provide information that individuals have been exposed to a hazardous substance, for which the probable source of such exposure is a release. In addition to other methods (formal or informal) of providing such information, such individual persons or licensed physicians may submit a petition to the Administrator of ATSDR providing such information and requesting a health assess- ment. If such a petition is submitted and the Administrator of ATSDR does not initiate a health assessment, the Administrator of ATSDR shall provide a written explanation of why a health assess- ment is not appropriate. 27 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1639 "(C) In determining the priority in which to conduct health assess- ments under this subsection, the Administrator of ATSDR, in con- sultation with the Administrator of EPA, shall give priority to those facilities at which there is documented evidence of the release of hazardous substances, at which the potential risk to human health appears highest, and for which in the judgment of the 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 Environ- mental Protection Agency and other Federal agencies pursuant to schedules for remedial investigation and feasibility studies. "(D) Where a health assessment is done at a site on the National Priorities List, the Administrator of ATSDR shall complete such assessment promptly and, to the maximum extent practicable, before the completion of the remedial investigation and feasibility study at the facility concerned. "(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. "(F) For the purposes of this subsection and section lll(cX4), the term 'health assessments' shall include preliminary assessments of the potential risk to human health posed by individual sites and facilities, based on such factors as the nature and extent of contami- nation, the existence of potential pathways of human exposure (including ground or surface water contamination, air emissions, and food chain contamination), the size and potential susceptibility of the community within the likely pathways of exposure, the comparison of expected human exposure levels to the short-term and long-term health effects associated with identified hazardous substances and any available recommended exposure or tolerance limits for such hazardous substances, and the comparison of existing morbidity and mortality data on diseases that may be associated with the observed levels of exposure. The Administrator of ATSDR shall use appropriate data, risk assessments, risk evaluations and studies available from the Administrator of EPA. "(G) The purpose of health assessments under this subsection shall be to assist in determining whether actions under paragraph (11) of this subsection should be taken to reduce human exposure to hazardous substances from a facility and whether additional information on human exposure and associated health risks is needed and should be acquired by conducting epidemiological studies under paragraph (7), establishing a registry under paragraph (8), establishing a health surveillance program under paragraph (9), or through other means. In using the results of health assessments for determining additional actions to be taken under this section, the Administrator of ATSDR may consider additional information on the risks to the potentially affected population from all sources of Reports. State and local governments. 28 100 STAT. 1640 PUBLIC LAW 99-499— OCT. 17, 1986 111 ' such hazardous substances including known point or nonpoint sources other than those from the faciHty in question. "(H) At the completion of each health assessment, the Adminis- trator of ATSDR shall provide the Administrator of EPA and each affected State with the results of such assessment, together with any recommendations for further actions under this subsection or other- wise under this Act. In addition, if the health assessment indicates that the release or threatened release concerned may pose a serious threat to human health or the environment, the Administrator of ATSDR shall so notify the Administrator of EPA who shall promptly evaluate such release or threatened release in accordance with the hazard ranking system referred to in section 105(aK8)(A) to determine whether the site shall be placed on the Naiional Prior- ities List or, if the site is already on the list, the Administrator of ATSDR may recommend to the Administrator of EPA that the site be accorded a higher priority. "(7XA) Whenever in the judgment of the Administrator of ATSDR it is appropriate on the basis of the results of a health assessment, the Administrator of ATSDR shall conduct a pilot study of health effects for selected groups of exposed individuals in order to deter- mine the desirability of conducting full scale epidemiological or other health studies of the entire exposed population. "(B) Whenever in the judgment of the Administrator of ATSDR it is appropriate on the basis of the results of such pilot study or other study or health assessment, the Administrator of ATSDR shall conduct such full scale epidemiological or other health studies as may be necessary to determine the health effects on the population exposed to hazardous substances from a release or threatened re- lease. If a significant excess of disease in a population is identified, the letter of transmittal of such study shall include an assessment of other risk factors, other than a release, that may, in the judgment of the peer review group, be associated with such disease, if such risk factors were not taken into account in the design or conduct of the study. "(8) In any case in which the results of a health assessment indicate a potential significant risk to human health, the Adminis- trator of ATSDR shall consider whether the establishment of a registry of exposed persons would contribute to accomplishing the purposes of this subsection, taking into account circumstances bear- ing on the usefulness of such a registry, including the seriousness or unique character of identified diseases or the likelihood of popu- lation migration from the affected area. "(9) Where the Administrator of ATSDR has determined that there is a significant increased risk of adverse health effects in humans from exposure to hazardous substances based on the results of a health assessment conducted under paragraph (6), an epidemio- logic study conducted under paragraph (7), or an exposure registry that has been established under paragraph (8), and the Adminis- trator of ATSDR has determined that such exposure is the result of a release from a facility, the Administrator of ATSDR shall initiate a health surveillance program for such population. This program shall include but not be limited to — "(A) periodic medical testing where appropriate of population subgroups to screen for diseases for which the population or subgroup is at significant increased risk; and 29 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1641 "(B) a mechanism to refer for treatment those individuals within such population who are screened positive for such "(10) Two years after the date of the enactment of the Superfund Reports. Amendments and Reauthorization Act of 1986, and every 2 years thereafter, the Administrator of ATSDR shall prepare and submit to the Administrator of EPA and to the Congress a report on the results of the activities of ATSDR regarding— "(A) health assessments and pilot health effects studies conducted; "(B) epidemiologic studies conducted; "(C) hazardous substances which have been listed under para- graph (2), toxicological profiles which have been developed, and toxicologic testing which has been conducted or which is being conducted under this subsection; "(D) registries established under paragraph (8); and "(E) an overall assessment, based on the results of activities conducted by the Administrator of ATSDR, of the linkage be- tween human exposure to individual or combinations of hazard- ous substances due to releases from facilities covered by this Act or the Solid Waste Disposal Act and any increased incidence or prevalence of adverse health effects in humans. "(11) If a health assessment or other study carried out under this subsection contains a finding that the exposure concerned presents a significant risk to human health, the President shall take such steps as may be necessary to reduce such exposure and eliminate or substantially mitigate the significant risk to human health. Such steps may include the use of any authority under this Act, including, but not limited to — "(A) provision of alternative water supplies, and "(B) permanent or temporary relocation of individuals. In any case in which information is insufficient, in the judgment of the Administrator of ATSDR or the President to determine a signifi- cant human exposure level with respect to a hazardous substance, the President may take such steps as may be necessary to reduce the exposure of any person to such hazardous substance to such level as the President deems necessary to protect human health. "(12) In any case which is the subject of a petition, a health assessment or study, or a research program under this subsection, nothing in this subsection shall be construed to delay or otherwise affect or impair the authority of the President, the Administrator of ATSDR, or the Administrator of EPA to exercise any authority vested in the President, the Administrator of ATSDR or the Administrator of EPA under any other provision of law (including, but not limited to, the imminent hazard authority of section 7003 of the Solid Waste Disposal Act) or the response and abatement authorities of this Act. "(13) All studies and results of research conducted under this subsection (other than health assessments) shall be reported or adopted only after appropriate peer review. Such peer review shall be completed, to the maximum extent practicable, within a period of 60 days. In the case of research conducted under the National Toxicology Program, such peer review may be conducted by the Board of Scientific Counselors. In the case of other research, such peer review shall be conducted by panels consisting of no less than three nor more than seven members, who shall be disinterested scientific experts selected for such purpose by the Administrator of 42 use 6901 note. President of U.S. 42 use 6973. Reports. Research and development. 30 100 STAT. 1642 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 6939a. President of U.S. Employment and unemplo3mient. 42 use 9611. Appropriation authorization. 99 Stat. 916. ATSDR or the Administrator of EPA, as appropriate, on the basis of their reputation for scientific objectivity and the lack of institu- tional ties with any person involved in the conduct of the study or research under review. Support services for such panels shall be provided by the Agency for Toxic Substances and Disease Registry, or by the Environmental Protection Agency, as appropriate. "(14) In the implementation of this subsection and other health- related authorities of this Act, the Administrator of ATSDR shall assemble, develop as necessary, and distribute to the States, and upon request to medical colleges, physicians, and 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. "(15) The activities of the Administrator of ATSDR described in this subsection and section lll(cX4) shall be carried out by the Administrator of ATSDR, either directly or through cooperative agreements with States (or political subdivisions thereof) which the Administrator of ATSDR determines are capable of carrying out such activities. Such activities shall include provision of consulta- tions on health information, the conduct of health assessments, including those required under section 3019(b) of the Solid Waste Disposal Act, health studies, registries, and health surveillance. "(16) The President shall provide adequate personnel for ATSDR, which shall not be fewer than 100 employees. For purposes of determining the number of employees under this subsection, an employee employed by ATSDR on a part-time career employment basis shall be counted as a fraction which is determined by dividing 40 hours into the average number of hours of such employee's regularly scheduled workweek. "(17) In accordance with section 120 (relating to Federal facilities), the Administrator of ATSDR shall have the same authorities under this section with respect to facilities owned or operated by a depart- ment, agency, or instrumentality of the United States as the Administrator of ATSDR has with respect to any nongovernmental entity. "(18) If the Administrator of ATSDR determines that it is appro- priate for purp)oses of this section to treat a pollutant or contami- nant as a hazardous substance, such pollutant or contaminant shall be treated as a hazardous substance for such purpose.". SEC. 111. USES OF FUND. (a) Amount of Fund.— Section 111 of CERCLA is amended by inserting after "(a)" the following: "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 enact- ment of the Superfund Amendments and Reauthorization Act of 1986, and such sums shall remain available until expended. The preceding sentence constitutes a specific authorization for the funds appropriated under title II of Public Law 99-160 (relating to pay- ment to the Hazardous Substances Trust Fund).". (b) Uses of Funds Under Section 111(a).— Section 111(a) of CERCLA is amended by striking out "; and" at the end of paragraoh 31 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1643 42 use 9611. President of U.S. 42 use 9607. (3) and inserting a period, by striking out the semicolons at the end of paragraphs (1) and (2) and inserting in Heu thereof a period, by capitalizing the first letter in paragraphs (1) through (4), and by adding at the end thereof the following: "(5) Grants for technical assistance.— The cost of grants under section 117(e) (relating to public participation grants for technical assistance). "(6) Lead contaminated soil. — Payment of not to exceed $15,000,000 for the costs of a pilot program for removal, decon- tamination, or other action with respect to lead-contaminated soil in one to three different metropolitan areas.". (c) Natural Resource Damage Claims.— (1) Limitation.— Section 111(b) of CERCLA is amended by inserting "(1) In General.—" after "(b)" and by adding at the end thereof the following new paragraph: "(2) Limitation on payment of natural resource claims.— "(A) General requirements.— No natural resource claim may be paid from the Fund unless the President 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.". (2) Conforming amendment— Section 111(h) of CERCLA is repealed. (d) Subsection (c) Amendments.— (1) Section u kch 4 i.— Section lll(cK4) of CERCLA is amended by striking out "the costs of epidemiologic studies" and inserting "Any costs incurred in accordance with subsec- tion (m) of this section (relating to ATSDR) and section 104(i), Ante, p. 1636. including the costs of epidemiologic and laboratory studies, health assessments, preparation of toxicologic profiles". (2) New paragraphs in section iiko.— Section 111(c) of CERCLA is amended by striking out "; and" at the end of paragraph (5) and inserting a period, by striking out the semi- colons at the end of paragraphs (1) through (4) and inserting in lieu thereof a period, by capitalizing the first letter in para- graphs (1), (2), (3), (5), and (6), and by adding at the end thereof the following: "(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 i04(aKi).— 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 over- sight of remedial activities at National Priorities List sites resulting from consent orders or settlement agreements. "(9) Acquisition costs under section i04(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). 32 100 STAT. 1644 PUBLIC LAW 99-499— OCT. 17, 1986 Post, p. 1708. 42 use 9611. 31 use 7501 note. Reports. Post. p. 1706. "(10) Research, development, and demonstration costs UNDER SECTION 311.— The cost of Carrying out section 311 (relat- ing to research, development, and demonstration), except that the amounts available for such purposes shall not exceed the amounts specified in subsection (n) of this section. "(11) Local government reimbursement.— Reimbursements to local governments under section 123, except that during the 5-fiscal-year period beginning October 1, 1986, not more than 0.1 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 work- ers to the extent that such costs do not exceed $10,000,000 for each of the fiscal years 1987, 1988, 1989, 1990, and 1991. "(13) Awards under section i09.— 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 th^ Superfund Amendments and Reauthorization Act of 1986 (relating to lead poisoning in children).". (e) Limitation on Certain Claims.— Section lll(eX2) of CERCLA is amended by adding at the end the following: "No money in the Fund may be used for the payment of any claim under subsection (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.". (f) Fund Use Outside Federal Property Boundaries.— Section 111(e)(3) of CERCLA is amended by inserting the following before the period: "; except that money in the Fund shall be available for the provision of alternative water supplies (including the reimburse- ment of costs incurred by a municipality) in any case involving groundwater contamination outside the boundaries of a federally owned facility in which the federally owned facility is not the only potentially responsible party". (g) Inspector General —Section lll(k) of CERCLA is amended to read as follows: "(k) Inspector General.— In each fiscal year, the Inspector Gen- eral of each department, agency, or instrumentality of the United States which is carrying out any authority of this Act shall conduct an annual audit of all payments, obligations, reimbursements, or other uses of the Fund in the prior fiscal year, to assure that the Fund is being properly administered and that claims are being appropriately and expeditiously considered. The audit shall include an examination of a sample of agreements with States (in accord- ance with the provisions of the Single Audit Act) carrying out response actions under this title and an examination of remedial investigations and feasibility studies prepared for remedial actions. The Inspector General shall submit to the Congress an annual report regarding the audit report required under this subsection. The report shall contain such recommendations as the Inspector General deems appropriate. Each department, agency, or instrumentality of the United States shall cooperate with its inspec- tor general in carrying out this subsection". (h) New Subsections.— Section 111 of CERCLA is amended by adding after subsection (1) the following new subsections: 33 PUBLIC LAW 99-499-OCT. 17, 1986 100 STAT. 1645 Ante, pp. 1636. 1643. "(m) Agency for Toxic Substances and Disease Registry.- There shall be directly available to the Agency for Toxic Substances and Disease Registry to be used for the purpose of carrying out activities described in subsection (c)(4) and section 104(0 not less than $50,000,000 per fiscal year for each of fiscal years 1987 and 1988, not less than $55,000,000 for fiscal year 1989, and not less than $60,000,000 per fiscal year for each of fiscal years 1990 and 199L Any funds so made available which are not obligated by the end of the fiscal year in which made available shall be returned to the ""n) Limitations on Research, Development, and Demonstra- "(1) Section 3ii(b).— For each of the fiscal years 1987, 1988, 1989 1990 and 1991, not more than $20,000,000 of the amounts available in the Fund may be used for the purposes of carrying out the applied research, development, and demonstration pro- gram for alternative or innovative technologies and training program authorized under section 311(b) (relating to research, development, and demonstration) other than basic research. Post, p. 1708 Such amounts shall remain available until expended. "(2) Section siKa).— From the amounts available in the Fund, not more than the following amounts may be used tor 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 the fiscal year 1991. $35,000,000. No more than 10 percent of such amounts shall be used tor training under section 311(a) in any fiscal year. "(3) Section snid).— For each of the fiscal years 1987, 1988, 1989 1990 and 1991, not more than $5,000,000 of the amounts available in the Fund may be used for the purposes of section 311(d) (relating to university hazardous substance research centers). ^ „ "(o) Notification Procedures for Limitations on Certain Jb'AY- ments.— Not later than 90 days after the enactment of this subsec- tion the President shall develop and implement procedures to adequately notify, as soon as practicable after a site is included on the National Priorities List, concerned local and State officials and other concerned persons of the limitations, set forth in subsection (a)(2) of this section, on the payment of claims for necessary response costs incurred with respect to such site.". (i) Authorization of Appropriations.— Section 111 ot c^kcla is amended by adding the following subsection after subsection (o): "(p) General Revenue Share of Superfund.— "(1) In general.— The following sums are authorized to be appropriated, out of any money in the Treasury not otherwise aopropriated, 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. addition there is authorized to be appropriated to the President of U.S. State and local governments. Claims. Post, p. 1706. In Hazardous Substance Superfund for each fiscal year an amount 34 100 STAT. 1646 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 9631. 26 use 9507. 42 use 9612. 42 use 9607. President of U.S. President of US 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. "(2) Computation.— The amounts authorized to be appro- priated under paragraph (1) of this subsection in a given fiscal year shall be available only to the extent that such amount exceeds the amount determined by the Secretary under section 9507(b)(2) of the Internal Revenue Code of 1986 for the prior fiscal year.". SEC. 112. CLAIMS PROCEDURE. (a) Claims Against the Fund for Response Costs.— Section 112(a) of CERCLA is amended to read as follows: "(a) Claims Against the Fund for Response Costs.— No claim may be asserted against the Fund pursuant to section 111(a) unless such claim is presented in the first instance to the owner, operator, or guarantor of the vessel or facility from which a hazardous substance has been released, if known to the claimant, and to any other person known to the claimant who may be liable under section 107. In any case where the claim has not been satisfied within 60 days of presentation in accordance with this subsection, the claim- ant may present the claim to the Fund for payment. No claim against the Fund may be approved or certified during the pendency of an action by the claimant in court to recover costs which are the subject of the claim.". (b) Procedures.— Section 1120)) is amended by striking "(b)(1)" and inserting "(b)(1) Prescribing Forms and Procedures.—" and by striking paragraphs (2), (3), and (4) and inserting the following: "(2) Payment or Request for Hearing.— The President may, if satisfied that the information developed during the processing of the claim warrants it, make and pay an award of the claim, except that no claim may be awarded to the extent that a judicial judgment has been made on the costs that are the subject of the claim. If the President declines to pay all or part of the claim, the claimant may, within 30 days after receiving notice of the President's decision, request an administrative hearing. "(3) Burden of Proof.— In any proceeding under this subsection, the claimant shall bear the burden of proving his claim. "(4) Decisions. — All administrative decisions made hereunder shall be in writing, with notification to all appropriate parties, and shall be rendered within 90 days of submission of a claim to an administrative law judge, unless all the parties to the claim agree in writing to an extension or unless the President, in his discretion, extends the time limit for a period not to exceed sixty days. "(5) Finality and Appeal. — All administrative decisions here- under shall be final, and any party to the proceeding may appeal a decision within 30 days of notification of the award or decision. Any such appeal shall be made to the Federal district court for the district where the release or threat of release took place. In any such appeal, the decision shall be considered binding and conclusive, and shall not be overturned except for arbitrary or capricious abuse of discretion. "(6) Payment.— Within 20 days after the expiration of the appeal period for any administrative decision concerning an award, or within 20 days after the final judicial determination of any appeal 35 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1647 taken pursuant to this subsection, the President shall pay any such award from the Fund. The President shall determine the method, terms, and time of payment.". ^ (c) Statute of Limitations.— Section 112(d) of CERCLA is 42 USC 9612 amended to read as follows: "(d) Statute of Limitations.— "(1) Claims for recovery of costs— No claim may be pre- sented under this section for recovery of the costs referred to in section 107(a) after the date 6 years after the date of completion of all response action. "(2) Claims for recovery of damages— No claim may be presented under this section for recovery of the damages re- ferred to in section 107(a) unless the claim is presented within 3 years after the later of the following: "(A) The date of the discovery of the loss and its connec- tion with the release in question. "(B) The date on which final regulations are promulgated under section 301(c). 42 USC 9651. "(3) Minors and incompetents— The time limitations con- tained herein shall not begin to run— "(A) against a minor until the earlier of the date when such minor reaches 18 years of age or the date on which a legal representative is duly appointed for the minor, or "(B) against an incompetent person until the earlier of the date on which such person's incompetency ends or the date on which a legal representative is duly appointed for such incompetent person.". (d) Double Recovery Prohibited— Section 112 of CERCLA is amended by adding the following new subsection at the end thereof: "(f) Double Recovery Prohibited —Where the President has paid out of the Fund for any response costs or any costs specified under section 111(c) (1) or (2), no other claim may be paid out of the Fund for the same costs.". SEt:. 1 13. I.ITKiATION. Jl KISDICTION, AND VKNUK. 42 USC 9613 (a) Nationwide Service of Process —Section 113 of CERCLA is amended by adding the following new subsection at the end thereof: "(e) Nationwide Service of Process— In any action by the United States under this Act, process may be served in any district where the defendant is found, resides, transacts business, or has appointed an agent for the service of process". (b) Contribution; Statute of Limitations.— Section 113 of Claims. CERCLA is amended by adding the following new subsections after subsection (e): "(f) Contribution — "(1) Contribution —Any person may seek contribution from any other person who is liable or potentially liable under section 107(a), during or following any civil action under section 106 or under section 107(a). Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contri- bution in the absence of a civil action under section 106 or section 107. 36 State and local governments. 100 STAT. 1648 PUBLIC LAW 99-499-OCT. 17, 1986 "(2) Settlement.— A person who has resolved its hability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribu- tion regarding matters addressed in the settlement. Such settle- ment does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement. "(3) Persons not party to settlement.— (A) If the United States or a State has obtained less than complete relief from a person who has resolved its liability to the United States or the State in an administrative or judicially approved settlement, the United States or the State may bring an action against any person who has not so resolved its liability. "(B) A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement referred to in para- graph (2). "(C) In any action under this paragraph, the rights of any person who has resolved its liability to the United States or a State shall be subordinate to the rights of the United States or the State. Any contribution action brought under this para- graph shall be governed by Federal law. "(g) Period in Which Action May Be Brought.— "(1) Actions for natural resource damages.— Except as provided in paragraphs (3) and (4), no action may be commenced for damages (as defined in section 101(6)) under this Act, unless that action is commenced within 3 years after the later of the following: "(A) The date of the discovery of the loss and its connec- tion with the release in question. "(B) The date on which regulations are promulgated under section 301(c). With respect to any facility listed on the National Priorities List (NPL), any Federal facility identified under section 120 (relating to Federal facilities), or any vessel or facility at which a re- medial action under this Act is otherwise scheduled, an action for damages under this Act must be commenced within 3 years after the completion of the remedial action (excluding operation and maintenance activities) in lieu of the dates referred to in subparagraph (A) or (B). In no event may an action for damages under this Act with respect to such a vessel or facility be commenced (i) prior to 60 days after the Federal or State natural resource trustee provides to the President and the potentially responsible party a notice of intent to file suit, or (ii) before selection of the remedial action if the President is dili- gently proceeding with a remedial investigation and feasibility study under section 104(b) or section 120 (relating to Federal facilities). The limitation in the preceding sentence on commencing an action before giving notice or before selection of the remedial action does not apply to actions filed on or before the enactment of the Superfund Amendments and Reauthoriza- tion Act of 1986. "(2) Actions for recovery of costs. — An initial action for recovery of the costs referred to in section 107 must be com- menced — 42 use 9601. 42 use 9651. Vessels. 37 PUBLIC LAW 99-499-OCT. 17, 1986 100 STAT. 1649 "(A) for a removal action, within 3 years after completion of the removal action, except that such cost recovery action must be brought within 6 years after a determination to grant a waiver under section 104(cXl)(C) for continued re- sponse action; and "(B) for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action, except that, if the remedial action is initiated within 3 years after the completion of the removal action, costs incurred in the removal action may be recovered in the cost recovery action brought under this subparagraph. In any such action described in this subsection, the court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or actions to recover further response costs or damages. A subse- quent action or actions under section 107 for further response costs at the vessel or facility may be maintained at any time during the response action, but must be commenced no later than 3 years after the date of completion of all response action. Except as otherwise provided in this paragraph, an action may be commenced under section 107 for recovery of costs at any time after such costs have been incurred. "(3) Contribution.— No action for contribution for any re- sponse costs or damages may be commenced more than 3 years after — "(A) the date of judgment in any action under this Act for recovery of such costs or damages, or "(B) the date of an administrative order under section 122(g) (relating to de minimis settlements) or 122(h) (relat- ing to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or damages. "(4) Subrogation.— No action based on rights subrogated pursuant to this section by reason of payment of a claim may be commenced under this title more than 3 years after the date of payment of such claim. "(5) Actions to recover indemnification payments —Not- withstanding any other provision of this subsection, where a payment pursuant to an indemnification agieement with a response action contractor is made under section 119, an action under section 107 for recovery of such indemnification payment from a potentially responsible party may be brought at any time before the expiration of 3 years from the date on which such payment is made. "(6) Minors and incompetents. — The time limitations con- tained herein shall not begin to run — "(A) against a minor until the earlier of the date when such minor reaches 18 years of age or the date on which a legal representative is duly appointed for such minor, or "(B) against an incompetent person until the earlier of the date on which such incompetent's incompetency ends or the date on which a legal representative is duly appointed for such incompetent.", (c) Pre-Enforcement Review.— (1) Conforming amendment —Section 1130t)) of CERCLA is amended by striking out "subsection" and inserting in lieu thereof "subsections' and inserting "and (h)" after "(a) '. 42 use 9613. 38 100 STAT. 1650 PUBLIC LAW 99-499— OCT. 17, 1986 'ill ■iillj 42 use 9613. (2) Timing of review; administrative record.— Section 113 of CERCLA is amended by adding at the end thereof the following new subsections: "(h) Timing of Review. — No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 of the United States Code (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 121 (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 104, or to review any order issued under section 106(a), in any action except one of the following: "(1) An action under section 107 to recover response costs or damages or for contribution. "(2) An action to enforce an order issued under section 106(a) or to recover a penalty for violation of such order. "(3) An action for reimbursement under section 106(bK2). "(4) An action under section 310 (relating to citizens suits) alleging that the removal or remedial action taken under sec- tion 104 or secured under section 106 was in violation of any requirement of this Act. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site. "(5) An action under section 106 in which the United States has moved to compel a remedial action. "(i) Intervention. — In any action commenced under this Act or 42 use 9201 under the Solid Waste Disposal Act in a court of the United States, note. any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situated that the disposition of the action may, as a practical matter, impair or impede the person's ability to protect that interest, unless the President or the State shows that the person's interest is adequately represented by existing parties. "(j) Judicial Review.— "(1) Limitation. — In any judicial action under this Act, ju- dicial review of any issues concerning the adequacy of any response action taken or ordered by the President shall be limited to the administrative record. Otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court. (2) Standard— In considering objections raised in any judicial action under this Act, the court shall uphold the President's decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law. "(3) Remedy —If the court finds that the selection of the response action was arbitrary and capricious or otherwise not in accordance with law, the court shall award (A) only the re- sponse costs or damages that are not inconsistent with the national contingency plan, and (B) such other relief as is consist- ent with the National Contingency Plan. "(4) Procedural errors.— In reviewing alleged procedural errors, the court may disallow costs or damages only if the errors were so serious and related to matters of such central relevance to the action that the action would have been signifi- cantly changed had such errors not been made. President of US "(k) ADMINISTRATIVE ReCORD AND PARTICIPATION PROCEDURES.— 39 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1651 "(1) Administrative record.— The President shall establish Public an administrative record upon which the President shall base information the selection of a response action. The administrative record shall be available to the public at or near the facility at issue. The President also may place duplicates of the administrative record at any other location. "(2) Participation procedures.— "(A) Removal action.— The President shall promulgate Regulations regulations in accordance with chapter 5 of title 5 of the United States Code establishing procedures for the appro- 5 USC 500 et seq. priate participation of interested persons in the develop- ment of the administrative record on which the President will base the selection of removal actions and on which judicial review of removal actions will be based. "(B) Remedial action.— The President shall provide for the participation of interested persons, including poten- tially responsible parties, in the development of the administrative record on which the President will base the selection of remedial actions and on which judicial review of remedial actions will be based. The procedures developed under this subparagraph shall include, at a minimum, each of the following: "(i) Notice to potentially affected persons and the public, which shall be accompanied by a brief analysis of the plan and alternative plans that were considered, "(ii) A reasonable opportunity to comment and pro- vide information regarding the plan. "(iii) An opportunity for a public meeting in the affected area, in accordance with section 117(aX2) (relating to public participation). "(iv) A response to each of the significant comments, criticisms, and new data submitted in v/ritten or oral presentations. "(v) A statement of the basis and purpose of the selected action. For purposes of this subparagraph, the administrative record shall include all items developed and received under this subparagraph and all items described in the second sentence of section 117(d). The President shall promulgate Regulations regulations in accordance with chapter 5 of title 5 of the United States Code to carry out the requirements of this 5 USC 500 et seq. subparagraph. "(C) Interim record.— Until such regulations under sub- paragraphs (A) and (B) are promulgated, the administrative record shall consist of all items developed and received pursuant to current procedures for selection of the response action, including procedures for the participation of in- terested parties and the public. The development of an administrative record and the selection of response action under this Act shall not include an adjudicatory hearing. "(D) Potentially responsible parties.— The President shgdl make reasonable efforts to identify and notify poten- tially responsible parties as early as possible before selec- tion of a response action. Nothing in this paragraph shall be construed to be a defense to liability. "(1) Notice of Actions.— Whenever any action is brought under this Act in a court of the United States by a plaintiff other than the 40 100 STAT. 1652 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 9614. 42 use 6935. I 42 use 6903. Regulations. 42 use 6921, 6991. 42 use 9601. United States, the plaintiff shall provide a copy of the complaint to the Attorney General of the United States and to the Administrator of the Environmental Protection Agency.". SEC. 114. RKLATIONSHIP TO OTHER LAW. (a) Used Oil.— Section 114(c) of CERCLA is amended to read as follows: "(c) Recycled Oil — "(1) Service station dealers, etc —No person (including the United States or any State) may recover, under the 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 author ity 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. Nothing in this paragraph shall affect or modify in any way the obligations or liability of any person under any other provision of State or Federal law, including common law, for damages, injury, or loss resulting from a release or threatened release of any hazardous substance or for removal or remedial action or the costs of removal or remedial action. "(2) Presumption.— Solely for the purposes of this subsection, a service station dealer may presume that a small quantity of used oil is not mixed with other hazardous substances if it — "(A) has been removed from the engine of a light duty motor vehicle or household appliances by the owner of such vehicle or appliances, and "(B) is presented, by such owner, to the dealer for collec- tion, accumulation, and delivery to an oil recycling facility. "(3) Definition— For purposes of this subsection, the terms 'used oil' and 'recycled oil' have the same meanings as set forth in sections 1004(36) and 1004(37) of the Solid Waste Disposal Act and regulations promulgated pursuant to that Act. "(4) Effective date. — The effective date of paragraphs (1 ) and (2) of this subsection shall be the effective date of regulations or standards promulgated under section 3014 of the Solid Waste Disposal Act that include, among other provisions, a require- ment to conduct corrective action to respond to any releases of recycled oil under subtitle C or subtitle I of such Act.". (b) Definition of Service Station Dealer— Section 101 of CERCLA is amended by inserting the following at the end thereof: "(37)(A) The term 'service station dealer' means any person— "(i) who owns or operates a motor vehicle service station, filling station, garage, or similar retail establishment en- gaged in the business of selling, repairing, or servicing motor vehicles, where a significant percentage of the gross revenue of the establishment is derived from the fueling, repairing, or servicing of motor vehicles, and "(ii) who accepts for collection, accumulation, and deliv- ery to an oil recycling facility, recycled oil that (I) has been 41 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1653 removed from the engine of a light duiy motor vehicle or household appliances by the owner of such vehicle or appli- ances, and (II) is presented, by such owner, to such person for collection, accumulation, and delivery to an oil recycling facility. "(B) For purposes of section 114(c), the term service station dealer' shall, notwithstanding the provisions of subparagraph (A), include any government agency that establishes a facility solely for the purpose of accepting recycled oil that satisfies the criteria set forth in subclauses (I) and (II) of subparagraph (A)(ii), and, with respect to recycled oil that satisfies the criteria set forth in subclauses (I) and (II), owners or operators of refuse collection services who are compelled by State law to collect, accumulate, and deliver such oil to an oil recycling facility. "(C) The President shall promulgate regulations regarding the determination of what constitutes a significant percentage of the gross revenues of an establishment for purposes of this paragraph.". SEC. 115. DELEGATION; REGULATIONS. Section 115 of CERCLA is not amended. SEC. 116. SCHEDULES. Title I of CERCLA is amended by adding the following new section after section 115: "SEC. 116. SCHEDULES. "(a) Assessment and Listing of Facilities.— It shall be a goal of this Act that, to the maximum extent practicable— "(1) not later than January 1, 1988, the President shall com- plete preliminary assessments of all facilities that are contained (as of the date of enactment of the Superfund Amendments and Reauthorization Act of 1986) on the Comprehensive Environ- mental Response, Compensation, and Liability Information System (CERCLIS) including in each assessment a statement as to whether a site inspection is necessary and by whom it should be carried out; and "(2) not later than January 1, 1989, the President shall assure the completion of site inspections at all facilities for which the President has stated a site inspection is necessary pursuant to paragraph (1). "(b) Evaluation.— Within 4 years after enactment of the Superfund Amendments and Reauthorization Act of 1986, each facility listed (as of the date of such enactment) in the CERCLIS shall be evaluated if the President determines that such evaluation is warranted on the basis of a site inspection or preliminary assess- ment. The evaluation shall be in accordance with the criteria estab- lished in section 105 under the National Contingency Plan for determining priorities among release for inclusion on the National Priorities List. In the case of a facility listed in the CERCLIS after the enactment of the Superfund Amendments and Reauthorization Act of 1986, the facility shall be evaluated within 4 years after the date of such listing if the President determines that such evaluation is warranted on the basis of a site inspection or preliminary assessment. "(c) Explanations.— If any of the goals established by subsection (a) or (b) are not achieved, the President shall publish an expla- President of U.S. Regulations. President of U.S. 42 use 9616. Public information. 42 100 STAT. 1654 PUBLIC LAW 99-499— OCT. 17, 1986 IS President of U. State and local ii^^^M '"i" governments. 42 use 9617. "if iii natk,n of why such action could not be completed hy the specified ^2^1^?'^'^''''^^'^''^'^ ^^ RI/FS.-The President shall assure that mPn.Hf 'T'Vf^'^T' T"^ feasibility studies (RI/FS) are com- tTon to thni^''^''^^' ^'"'i °" '^^ N^^^«"^^ P"«"ties List, in aSd^- tion to those commenced prior to the date of enactment of the Superfund Amendments and Reauthorization Act of 1986 in accord ance with the following schedule: accora "(1) not fewer than 275 by the date 36 months after the date of AcrofT986,tnd ^"^^"^""^ Amendments and Reauthorization fhllf^.'^^^!^'?'^"'?7'^^rPl°^P^''^^^P^ ^1^ is "ot met, not fewer than an additional 175 by the date 4 years after such date of enactment, an additional 200 by the date 5 years after such date ^, d1tro7enaTt'm:nt ' '^'^^ °' ''' '^ ^^^ '^^^ ' ^^^ ^^^^ ^^^ "(e) Commencement of Remedial Action.— The President shall assure that substantial and continuous physical on-site remedfa action commences at facilities on the National Priorities ITstin addition to those facilities on which remedial action has commenced prior to the date of enactment of the Superfund Amendm^ts a^ Reauthorization Act of 1986, at a rate not fewer than- rr.J\^ ^fi^^'^'^u'^^ ^"""^ ^^^ ^''■^^ 36-month period after enact- ment of this subsection; and .rtlrl^^u ^a^'^'^'^u^ facilities during the following 24 months atter such 36-month period. . SEC. 117. PUBLIC PARTICIPATION. aftir iect^oi??!^^^ '' amended by adding the following new section •SEC. 117. PUBLIC PARTICIPATION. ''(a) Proposed PLAN.-Before adoption of any plan for remedial action te be undertaken by the President, by a State, or by any other person, under section 104, 106, 120, or 122, the President or State, as appropriate, shall take both of the following actions: ''(l; Publish a notice and brief analysis of the proposed plan and make such plan available to the public. "(2) Provide a reasonable opportunity for submission of writ- ten and oral comments and an opportunity for a public meeting at or near the facility at issue regarding the proposed plan and regarding any proposed findings under section 121(dX4) (relating te cleanup standards). The President or the State shall keep a transcript of the meeting and make such transcript available to the public. The notice and analysis published under paragraph (1) shall include suHicient information as may be necessary to provide a reasonable consfdered" proposed plan and alternative proposals "(b) Final Plan .-Notice of the final remedial action plan adopted shall be published and the plan shall be made available to the public before commencement of any remedial action. Such final plan shall be accompanied by a discussion of any significant changes (and the reasons for such changes) in the proposed plan and a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations under subsection (a) 43 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1655 "(c) Explanation of Differences.— After adoption of a final remedial action plan— "(1) if any remedial action is taken, "(2) if any enforcement action under section 106 is taken, or "(3) if any settlement or consent decree under section 106 or section 122 is entered into, and if such action, settlement, or decree differs in any significant respects from the final plan, the President or the State shall publish an explanation of the significant differences and the reasons such changes were made. ., ^ "(d) PuBUCATiON.— For the purposes of this section, publication shall include, at a minimum, publication in a major local newspaper of general circulation. In addition, each item developed, received, published, or made available to the public under this section shall be available for public inspection and copying at or near the facility at issue. "(e) Grants FOR Technical Assistance.— . , . "(1) Authority.— Subject to such amounts as are provided in appropriations Acts and in accordance with rules promulgated by the President, the President may make grants available to any group of individuals which may be affected by a release or threatened release at any facility which is listed on the Na- tional Priorities List under the National Contingency Plan. Such grants may be used to obtain technical assistance in interpreting information with regard to the nature of the hazard, remedial investigation and feasibility study, record of decision, remedial design, selection and construction of remedial action, operation and maintenance, or removal action at such facility. "(2) Amount.— The amount of any grant under this subsec- tion may not exceed $50,000 for a single grant recipient. The President may waive the $50,000 limitation in any case where such waiver is necessary to carry out the purposes of this subsection. Each grant recipient shall be required, as a condi- tion of the grant, to contribute at least 20 percent of the total of costs of the technical assistance for which such grant is made. The President may waive the 20 percent contribution require- ment if the grant recipient demonstrates financial need and such waiver is necessary to facilitate public participation in the selection of remedial action at the facility. Not more than one grant may be made under this subsection with respect to a single facility, but the grant may be renewed to facilitate public participation at all stages of remedial action.". SF:C. 118. MISCELLANEOLS PROVISIONS. (a) Priority for Drinking Water Supplies— Title I of CERCLA is amended by adding the following new section after section 117: "SEC. 118. HIGH PRIORITY FOR DRINKING WATER SI PPLIES. "For purposes of taking action under section 104 or 106 and listing facilities on the National Priorities List, the President shall give a high priority to facilities where the release of hazardous substances or pollutants or contaminants has resulted in the closing of drinking water wells or has contaminated a principal drinkmg water supply". (b) Removal and Temporary Storage of Containers of Radon Contaminated Soil.— Not later than 90 days after the enactment of President of U.S. President of U.S. 42 use 9618. Grants. New Jersey. 44 100 STAT. 1656 PUBLIC LAW 99-499— OCT. 17. 1986 Waste disposal. Law enforcement and crime. 33 use 1319. 33 use 1311. Reports. Waste disposal. 42 use 6925. this Act, the Administrator shall make a grant of $7,500,000 to the State of New Jersey for transportation from residential areas in the State of New Jersey and temporary storage of approximately 14,000 containers of radon contaminated soil which is the subject of a remedial action for which a remedial investigation and feasibility study has been initiated before such date. Such containers shall be transported to and temporarily stored at any site in the State of New Jersey designated by the Governor of such State. For purposes of section 111(a) of CERCLA, the grant under this subsection for transportation and storage of such containers shall be treated as payment of governmental response cost incurred pursuant to section 104 of CERCLA. (c) Unconsoudated Quaternary Aquifer.— Notwithstanding any other provision of law, no person may — (1) locate or authorize the location of a landfill, surface impoundment, waste pile, injection well, or land treatment facility over the Unconsolidated Quaternary Aquifer, or the recharge zone or streamflow source zone of such aquifer, in the Rockaway River Basin, New Jersey (as such aquifer and zones are described in the Federal Register, January 24, 1984, pages 2946-2948); or (2) place or authorize the placement of solid waste in a landfill, surface impoundment, waste pile, injection well, or land treatment facility over such aquifer or zone. This subsection may be enforced under sections 309 (a) and (b) of the Federal Water Pollution Control Act. For purposes of section 309(c) of such Act, a violation of this subsection shall be considered a violation of section 301 of such Act. (d) Study of Shortages of Skilled Personnel.— The Comptroller General shall study the problem of shortages of skilled personnel in the Environmental Protection Agency to carry out response actions under CERCLA. In particular the Ck)mptroller General shall study— (1) the types of skilled personnel needed for response actions for which there are shortages in the Environmental Protection Agency, (2) the extent of such shortages, (3) pay differential between the public and private sectors for the skilled positions involved in response actions, (4) the extent to which skilled personnel of Federal and State governments involved in response actions are leaving their positions for emplojrment in the private sector, (5) the success of programs of the Department of Defense and the Office of Personnel Management in retaining skilled person- nel, and (6) the types of training required to improve the skills of employees carrying out response actions. The Comptroller General shall complete the study required by this subsection and submit a report on the results thereof to Congress not later than July 1, 1987. (e) State Requirements Not Applicable to Certain Trans- fers.— No State or local requirement shall apply to the transfer and disposal of any hazardous substance or pollutant or contaminant from a facility at which a release or threatened release has occurred to a facility for which a final permit under section 3005(a) of the Solid Waste Disposal Act is in effect if the following conditions apply— 45 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1657 (1) Such permit was issued after January 1, 1983, and before November 1, 1984. (2) The transfer and disposal is carried out pursuant to a cooperative agreement between the Administrator and the State. , , (3) The facility at which the release or threatened release has occurred is identified as the McColl Site in Fullerton, California. The terms used in this section shall have the same meaning as when usedintitlelofCERCLA. . r^^ , ^ ■ ■ . , (f) Study of Lead Poisoning in Children— (1) The Administrator of the Agency for Toxic Substances and Disease Registry shall, in consultation with the Administrator of the Environmental Protec- tion Agency and other officials as appropriate, not later than March 1, 1987, submit to the Congress, a report on the nature and extent of lead poisoning in children from environmental sources. Such report shall include, at a minimum, the following information— (A) an estimate of the total number of children, arrayed according to Standard Metropolitan Statistical Area or other appropriate geographic unit, exposed to environmental sources of lead at concentrations sufficient to cause adverse health (B) an estimate of the total number of children exposed to environmental sources of lead arrayed according to source or source types; (C) a statement of the long term consequences for public health of unabated exposures to environmental sources of lead and including but not limited to, diminution in intelligence, increases in morbidity and mortality; and (D) methods and alternatives available for reducing exposures of children to environmental sources of lead. (2) Such report shall also score and evaluate specific sites at which children are known to be exposed to environmental sources of lead due to releases, utilizing the Hazard Ranking system of the National Priorities List. (3) The costs of preparing and submitting the report required by this section shall be borne by the Hazardous Substance Superfund established under subchapter A of chapter 98 of Internal Revenue Code of 1954. ^^^^^ ^ . ^ (g) Federally Licensed Dam— For purposes of CERCLA in the case of the Milltown Dam in the State of Montana licensed under part 1 of the Federal Power Act and designated as FERC license number 2543-004, if a hazardous substance, pollutant, or contaminant — (1) has been released into the environment upstream of the dam, and (2) has subsequently come to be located in the reservoir created by such dam notwithstanding section 101(20) of such Act, the term "owner or operator" does not include the owner or operator of the dam unless such owner or operator is a person who would otherwise be liable for such release or threatened release under section 107 of such Act. (h) Community Relocation at Times Beach Site.— For purposes of any Missouri dioxon site at which a temporary or permanent relocation decision has been made, or is under active consideration, by the Administrator as of the enactment of this Act, the terms "remove" and "removal" as used in CERCLA shall be deemed to include the costs of permanent relocation of residents where it is California. 42 use 9601. Reports. 26 use 9501. Montana. 42 use 9601 note. 16 use note prec. 791. Ante, p. 1615. Missouri. Health and medical care. Safety. 46 100 STAT. 1658 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 5177-5179. 26 use 1 et seq. Waste disposal. 42 use 6921. 42 use 9601 note. 42 use 6901 note. determined that such permanent relocation is cost effective or may be necessary to protect health or welfare. In the case of a business located in an area of evacuation or relocation at such facility, such terms may also include the payment of those installments of prin- cipal and interest on business debt which accrue between the date of evacuation or temporary relocation and 30 days following the date that permanent relocation is actually accomplished or, if permanent relocation is formally rejected as the appropriate response, the date on which evacuation or temporary relocation ceases. In the case of an individual unemployed as a result of such evacuation or reloca- tion, such terms may also include the provision of assistance iden- tical to that authorized by sections 407, 408, and 409 of the Disaster Relief Act of 1974; except that the costs of such assistance shall be paid from the Trust Fund established under amendments made to the Internal Revenue Code of 1954 by this Act. Section 104(c)(1) of CERCLA shall not apply to obligations from the Fund for perma- nent relocation under this paragraph. (i) Limited Waivers in State of Illinois. — (1) Mobile incinerators. — In the case of remedial actions specifically involving mobile incinerator units in the State of Illinois, if such remedial actions are undertaken by the State under the authority of a State Superfund law or equivalent authority, the State may, with the approval of the Adminis- trator, waive any permit requirement under subtitle C of the Solid Waste Disposal Act which would be otherwise applicable to such action to the extent that the following conditions are met: (A) No transfer. — The incinerator does not involve the transfer of a hazardous substance or pollutant or contami- nant from the facility at which the release or threatened release occurs to an offsite facility. (B) Remedial action.— The remedial action provides each of the following: (i) Changes in the character or composition of the hazardous substance or pollutant or contaminant con- cerned so that it no longer presents a risk to public health. (ii) Protection against accidental emissions during operation. (iii) Protection of public health considering the multi- media impacts of the treatment process. (C) Public participation.— The State provides proce- dures for public participation regarding the response action which are at least equivalent to the level of public partici- pation procedures applicable under CERCLA and under the Solid Waste Disposal Act. (2) Effect of waiver. — The waiver of any permit require- ment under this subsection shall not be construed to waive any standard or level of control which — (A) is applicable to any hazardous substance or pollutant or contaminant involved in the remedial action; and (B) would otherwise be contained in the permit. Such waiver of any permit requirement under subtitle C of the Solid Waste Disposal Act shall only apply to the extent that the facility or remedial action involves the onsite treatment with a mobile incineration unit of waste present at such site. The waiver shall not apply to any other regulated or potentially 47 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1659 regulated activity, including the use of the mobile incineration unit for actions not authorized by the State. (3) Expiration of authority.— The authority of this subsec- tion shall terminate at the end of 3 years, unless the State demonstrates, to the satisfaction of the Administrator, that the operation of mobile incinerators in the State has sufficiently protected public health and the environment and is consistent with the criteria required for a permit under subtitle C of the Solid Waste Disposal Act. (j) Study of Joint Use of Trucks.— (1) Study —The Administrator, in consultation with the Sec- retary of Transportation, shall conduct a study of problems associated with the use of any vehicle for purposes other than the transportation of hazardous substances when that vehicle is used at other times for the transportation of hazardous sub- stances. At a minimum, the Administrator shall consider— (A) whether such joint use of vehicles should be prohibited, and (B) whether, if such joint use is permitted, special safe- guards should be taken to minimize threats to public health and the environment. (2) Report.— The Administrator shall submit a report, along with recommendations, to Congress on the results of the study conducted under paragraph (1) not later than 180 days after the date of the enactment of this Act. (k) Radon Assessment and Mitigation. — (1) National assessment of radon gas —No later than one year after the enactment of this Act, the Administrator shall submit to the Congress a report which shall, to the extent possible — (A) identify the locations in the United States where radon is found in structures where people normally live or work, including educational institutions; (B) assess the levels of radon gas that are present in such structures; (C) determine the level of radon gas and radon daughters which poses a threat to human health and assess for each location identified under subparagraph (A) the extent of the threat to human health; (D) determine methods of reducing or eliminating the threat to human health of radon gas and radon daughters; and (E) include guidance and public information materials based on the findings or research of mitigating radon. (2) Radon mitigation demonstration program. — (A) Demonstration program. — The Administrator shall conduct a demonstration program to test methods and tech- nologies of reducing or eliminating radon gas and radon daughters where it poses a threat to human health. The Administrator shall take into consideration any demonstra- tion program underway in the Reading Prong of Pennsylva- nia, New Jersey, and New York and at other sites prior to enactment. The demonstration program under this section shall be conducted in the Reading Prong, and at such other sites as the Administrator considers appropriate. (B) Annual reports.— The Administrator shall submit annual reports not later than February 1 of each year 42 use C921. Reports. Reports. 42 use 7401 note. 75-032 0-90-3 48 100 STAT. 1660 PUBLIC LAW 99-499— OCT. 17, 1986 49 use 9660 note. "'in Contracts. Grants. Schools and colleges. Texas. Texas. Louisiana. Mississippi. Alabama. Florida. Ante, p. 1625. 42 use 7401 note. (beginning February 1, 1987) on the status of the dem- onstration program carried out under this subsection and on any such demonstration program initiated prior to enactment. (C) Liability.— Liability, if any, for persons undertaking activities pursuant to the radon mitigation demonstration program authorized under this subsection shall be deter- mined under principles of existing law. (3) Construction of section.— Nothing in this subsection shall be construed to authorize the Administrator to carry out any regulatory program or any activity other than research, development, and related reporting, information dissemination, and coordination activities specified in this subsection. Nothing in paragraph (1) or (2) shall be construed to limit the authority of the Administrator or of any other agency or instrumentality of the United States under any other authority of law. (1) Gulf Coast Hazardous Substance Research, Development, AND Demonstration Center. — (1) ESTABUSHMENT OF HAZARDOUS SUBSTANCE RESEARCH, DEVELOPMENT, AND DEMONSTRATION CENTER. — The Adminis- trator shall establish a hazardous substance research, develop- ment, and demonstration center (hereinafter in this subsection referred to as the "Center") for the purpose of conducting research to aid in more effective hazardous substance response and waste management throughout the Gulf Coast. (2) Purposes of the center.— The Center shall carry out a program of research, evaluation, testing, development, and dem- onstration of alternative or innovative technologies which may be utilized in response actions or in normal handling of hazard- ous wastes to achieve better protection of human health and the environment. (3) Operation of center —(A) For purposes of operatmg the Center, the Administrator is authorized to enter into contracts and cooperative agreements with, and make grants to, a univer- sity related institute involved with the improvement of waste management. Such institute shall be located in Jefferson County, Texas. (B) The Center shall be authorized to make grants, accept contributions, and enter into agreements with universities lo- cated in the States of Texas, Louisiana, Mississippi, Alabama, and Florida in order to carry out the purposes of the Center. (4) Authorization of appropriations.— There are authorized to be appropriated to the Administrator for purposes of carrying out this subsection for fiscal years beginning after Septem- ber 30, 1986, not more than $5,000,000. (m) Radon Protection at Current National Priorities List Sites.— It is the sense of the Congress that the President, in selecting response action for facilities included on the National Priorities List published under section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 because of the presence of radon, is not required by statute or regulations to use fully demonstrated methods, particularly those involving the offsite transport and disposition of contaminated material, but may use innovative or alternative methods which protect human health and the environment in a more cost-effective manner. (n) Spill Control Technology — 49 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1661 (1) Establishment of program— Within 180 days of enact- ment of this subsection, the Secretary of the United States Department of Energy is directed to carry out a program of testing and evaluation of technologies which may be utilized in responding to liquefied gaseous and other hazardous substance spills at the Liquefied Gaseous Fuels Spill Test Facility that threaten public health or the environment. (2) Technology transfer.— In carrying out the program established under this subsection, the Secretary shall conduct a technology transfer program that, at a minimum — (A) documents and archives spill control technology; (B) investigates and analyzes significant hazardous spill incidents; (C) develops and provides generic emergency action plans; (D) documents and archives spill test results; (E) develops emergency action plans to respond to spills; (F) conducts training of spill response personnel; and (G) establishes safety standards for personnel engaged in spill response activities. (3) Contracts and grants.— The Secretary is directed to Wyoming. enter into contracts and grants with a nonprofit organization in Albany County, Wyoming, that is capable of providing the necessary technical support and which is involved in environ- mental activities related to such hazardous substance related emergencies. (4) Use of site.— The Secretary shall arrange for the use of the Liquefied Gaseous Fuels Spill Test Facility to carry out the provisions of this subsection. (o) Pacific Northwest Hazardous Substance Research, Devel- opment, AND Demonstration Center. — (1) Establishment.— The Administrator shall establish a hazardous substance research, development, and demonstration center (hereinafter in this subsection referred to as the "Center") for the purpose of conducting research to aid in more effective hazardous substance response in the Pacific Northwest. (2) Purposes of center.— The Center shall carry out a pro- gram of research, evaluation, testing, development, and dem- onstration of alternative or innovative technologies which may be utilized in response actions to achieve more permanent protection of human health and welfare and the environment. (3) Operation of center. — (A) Nonprofit entity.— For the purposes of operating the Center, the Administrator is authorized to enter into con- tracts and cooperative agreements with, and make grants to, a nonprofit private entity as defined in section 201(i) of Public Law 96-517 which entity shall agree to provide the basic technical and management personnel. Such nonprofit private entity shall also agree to provide at least two permanent research facilities, one of which shall be located in Benton County, Washington, and one of which shall be located in Clallam County, Washington. (B) Authorities.— The Center shall be authorized to make grants, accept contributions, and enter into agree- ments with universities located in the States of Washing- ton, Oregon, Idaho, and Montana in order to carry out the purposes of the Center. 42 use 9660 note. Contracts. Grants. 35 use 201. Washington. Washington. Oregon. Idaho. Montana. 50 100 STAT. 1662 PUBLIC LAW 99-499— OCT. 17, 1986 Appropriation authorization. Utah. Contracts. (4) HAZARDOUS WASTE RESEARCH AT THE HANFORD SITE — Washington. (A) INTERAGENCY AGREEMENTS.— The Administrator and the Secretary of Energy are authorized to enter into inter- agency agreements with one another for the purpose of providing for research, evaluation, testing, develop- ment, and demonstration into alternative or innovative technologies to characterize and assess the nature and extent of hazardous waste (including radioactive mixed waste) contamination at the Hanford site, in the State of Washington. (B) Funding.— There is authorized to be appropriated to the Secretary of Energy for purposes of carrying out this paragraph for fiscal years beginning after September 'M) 1986, not more than $5,000,000. All sums appropriated under this subparagraph shall be provided to the Adminis- trator by the Secretary of Energy, pursuant to the inter agency agreement entered into under subparagraph (A), for the purpose of the Administrator entering into contracts and cooperative agreements with, and making grants to, the Center in order to carry out the research, evaluation^ testing, development, and demonstration described in para- graph ( 1 ). (5) Authorization of appropriations.— There is authorized to be appropriated to the Administrator for purposes of carrying out this subsection (other than paragraph (4)) for fiscal years beginning after September 30, 1986, not more than $5,000,000. (p) Silver Creek Tailings.— Effective with the date of enactment of this Act, the facility listed in Group 7 in EPA National Priorities List Update #4 (50 Federal Register 37956, September 18, 1985), the site in Park City, Utah, which is located on tailings from noncoal mining operations, shall be deemed removed from the list of sites recommended for inclusion on the National Priorities List, unless the President determines upon site specific data not used in the proposed listing of such facility, that the facility meets requirements of the Hazard Ranking System or any revised Hazard Ranking System. SEC. 119. RESPONSE ACTION CONTRACTORS. Title I of CERCLA is amended by adding the following new section after section 118: 42 use 9619. "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 threat- ened release of a hazardous substance or pollutant or contami- nant from a vessel or facility shall not be liable under this title or under any other Federal law to any person for injuries, costs, damages, expenses, or other liability (including but not limited to claims for indemnification or contribution and claims by third parties for death, personal injury, illness or loss of or damage to property or economic loss) which results from such release or threatened releese. "(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 con- stitutes intentional misconduct. 51 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1663 Ante, p. 1662. President of U.S. "(3) Effect on warranties; employer liability.— Nothing in this subsection shall affect the liability of any person under any warranty under Federal, State, or common law. Nothing in this subsection shall affect the liability of an employer who is a response action contractor to any employee of such employer under any provision of law, including any provision of any law relating to worker's compensation. "(4) Governmental employees.— A state employee or an em-- ployee of a political subdivision who provides services relating to response action while acting within the scope of his authority as a governmental employee shall have the same exemption from liability (subject to the other provisions of this section) as is provided to the response action contractor under this section. '(b) Savings Provisions.— "(1) Liability of other persons. — The defense provided by section 107(b)(3) shall not be available to any potentially respon- 42 USC 9607 sible 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, noth- ing in this section shall affect the liability under this Act or under any other Federal or State law of any person, other than a response action contractor. "(2) Burden of plaintiff. — Nothing in this section shall affect the plaintiffs burden of establishing liability under this title. '(c) Indemnification. — "(1) In general.— The President may agree to hold harmless and indemnify any response action contractor meeting the requirements of this subsection against any liability (including the expenses of litigation or settlement) for negligence arising out of the contractor's performance in carrying out response action activities under this title, unless such liability was caused by conduct of the contractor which was grossly negligent or which constituted intentional misconduct. "(2) Applicability. — This subsection shall apply only with respect to a response action carried out under written agree- ment with — "(A) the President; "(B) any Federal agency; "(C) a State or political subdivision which has entered into a contract or cooperative agreement in accordance with section 104(d)(1) of this title; or "(D) any potentially responsible party carrying out any agreement under section 122 (relating to settlements) or section 106 (relating to abatement). "(3) Source of funding. — This subsection shall not be subject to section 1301 or 1341 of title 31 of the United States Code or section 3732 of the Revised Statutes (41 U.S.C. 11) or to section 3 of the Superfund Amendments and Reauthorization Act of 1986. For purposes of section 111, amounts expended pursuant to this subsection for indemnification of any response action contractor (except with respect to federally owned or operated facilities) shall be considered governmental response costs incurred pursu- ant to section 104. If sufficient funds are unavailable in the Hazardous Substance Superfund established under subchapter A of chapter 98 of the Internal Revenue Code of 1954 to make 26 USC 9501 payments pursuant to such indemnification or if the Fund is Ante, p. 1642. Appropriation authorization. 52 \ 100 STAT. 1664 PUBLIC LAW 99-499— OCT. 17, 1986 repealed, there are authorized to be appropriated such amounts as may be necessary to make such payments. "(4) Requirements— An indemnification agreement may be provided under this subsection only if the President determines that each of the following requirements are met: "(A) The liability covered by the indemnification agree- ment exceeds or is not covered by insurance available, at a fair and reasonable price, to the contractor at the time the contractor enters into the contract to provide response action, and adequate insurance to cover such liability is not generally available at the time the response action contract is entered into. "(B) The response action contractor has made diligent efforts to obtain insurance coverage from non-Federal sources to cover such liability. "(C) In the case of a response action contract covering more than one facility, the response action contractor agrees to continue to make such diligent efforts each time the contractor begins work under the contract at a new facility. "(5) Limitations.— "(A) Liability covered —Indemnification under this subsection shall apply only to response action contractor liability which results from a release of any hazardous substance or pollutant or contaminant if such release arises out of response action activities. "(B) Deductibles and limits —An indemnification agree- ment under this subsection shall include deductibles and shall place limits on the amount of indemnification to be made available. President of U.S. "(C) CONTRACTS WITH POTENTIALLY RESPONSIBLE PARTIES — "(i) Decision to indemnify.— In deciding whether to enter into an indemnification agreement with a re- sponse action contractor carrying out a written con- tract or agreement with any potentially responsible party, the President shall determine an amount which the potentially responsible party is able to indemnify the contractor. The President may enter into such an indemnification agreement only if the President deter- mines that such amount of indemnification is inad- equate to cover any reasonable potential liability of the contractor arising out of the contractor's negligence in performing the contract or agreement with such party. The President shall make the determinations in the preceding sentences (with respect to the amount and the adequacy of the amount) taking into account the total net assets and resources of potentially responsible parties with respect to the facility at the time of such determinations. "(ii) Conditions— The President may pay a claim under an indemnification agreement referred to in clause (i) for the amount determined under clause (i) only if the contractor has exhausted all administrative, judicial, and common law claims for indemnification agamst all potentially responsible parties participating in the clean-up of the facility with respect to the liabil- ity of the contractor arising out of the contractor's 53 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1665 42 use 6901 note. Reports. negligence in performing the contract or agreement with such party. Such indemnification agreement shall require such contractor to pay any deductible estab- lished under subparagraph (B) before the contractor may recover any amount from the potentially respon- sible party or under the indemnification agreement. "(D) RCRA FACILITIES. — No owner or operator of a facility regulated under the Solid Waste Disposal Act may be indemnified under this subsection with respect to such facility. "(E) Persons retained or hired. — A person retained or hired by a person described in subsection (e)(2)(B) shall be eligible for indemnification under this subsection only if the President specifically approves of the retaining or hiring of such person. "(6) Cost recovery. — For purposes of section 107, amounts expended pursuant to this subsection for indemnification of any person who is a response action contractor with respect to any release or threatened release shall be considered a cost of response incurred by the United States Government with re- sjject to such release. "(7) Regulations. — The President shall promulgate regula- President of U.S. tions for carrying out the provisions of this subsection. Before promulgation of the regulations, the President shall develop guidelines to carry out this section. Development of such guide- lines shall include reasonable opportunity for public comment. "(8) Study.— The Comptroller General shall conduct a study in the fiscal year ending September 30, 1989, on the application of this subsection, including whether indemnification agree- ments under this subsection are being used, the number of claims that have been filed under such agreements, and the need for this subsection. The Comptroller General shall report the findings of the study to Congress no later than Septem- ber 30, 1989. "(d) Exception.— The exemption provided under subsection (a) and the authority of the President to offer indemnification under subsection (c) shall not apply to any person covered by the provisions of paragraph (1), (2), (3), or (4) of section 107(a) with respect to the release or threatened release concerned if such person would be covered by such provisions even if such person had not carried out any actions referred to in subsection (e) of this section. "(e) Definitions. — For purposes of this section — "(1) Response action contract. — The term 'response action contract' means any written contract or agreement entered into by a response action contractor (as defined in paragraph (2XA) of this subsection) with — "(A) the President; "(B) any Federal agency; "(C) a State or political subdivision which has entered into a contract or cooperative agreement in accordance with section 104(dXl) of this Act; or "(D) any potentially responsible party carrying out an agreement under section 106 or 122; to provide any remedial action under this Act at a facility listed on the National Priorities List, or any removal under this Act, with respect to any release or threatened release of a hazardous substance or pollutant or contaminant from the facility or to 54 100 STAT. 1666 PUBLIC LAW 99-499— OCT. 17, 1986 ^ provide any evaluation, planning, engineering, surveying and mapping, design, construction, equipment, or any ancillary serv- ices thereto for such facility. "(2) Response action contractor.— The term 'response action contractor' means — "(A) any — "(i) person who enters into a response action contract with respect to any release or threatened release of a hazardous substance or pollutant or contaminant from a facility and is carrying out such contract; and "(ii) person, public or nonprofit private entity, conducting a field demonstration pursuant to section 311(b); and "(B) any person who is retained or hired by a person described in subparagraph (A) to provide any services relat- ing to a response action. "(3) Insurance.— The term 'insurance' means liability insur- ance which is fair and reasonably priced, as determined by the President, and which is made available at the time the contrac- tor enters into the response action contract to provide response action. ; "(f) Competition— Response action contractors and subcontrac- tors for program management, construction management, architec- tural and engineering, surveying and mapping, and related services shall be selected in accordance with title IX of the Federal Property 40 use 541. and Administrative Services Act of 1949. The Federal selection procedures shall apply to appropriate contracts negotiated by all Federal governmental agencies involved in carrying out this Act. Such procedures shall be followed by response action contractors and subcontractors.". SEC. 120. FEDERAL FACILITIES. (a) In General.— Title I of CERCLA is amended by adding the following new section after section 119: 42 use 9620 "SEC. 120. FEDERAL FACILITIES. "(a) Application of Act to Federal Government.— "(1) In general.— Each department, agency, and instrumen- tality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this Act in the same manner and to the same extent, both procedurally and substantively, as any nongovern- mental entity, including liability under section 107 of this Act. Nothing in this section shall be construed to affect the liability of any person or entity under sections 106 and 107. "(2) Application of requirements to federal facilities.— All guidelines, rules, regulations, and criteria which are ap- plicable to preliminary assessments carried out under this Act for facilities at which hazardous substances are located, ap- plicable to evaluations of such facilities under the National Contingency Plan, applicable to inclusion on the National Prior- ities List, or applicable to remedial actions at such facilities shall also be applicable to facilities which are owned or operated by a department, agency, or instrumentality of the United States in the same manner and to the extent as such guidelines, rules, regulations, and criteria are applicable to other facilities. No department, agency, or instrumentality of the United States 55 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1667 may adopt or utilize any such guidelines, rules, regulations, or criteria which are inconsistent with the guidelines, rules, regu- lations, and criteria established by the Administrator under this Act. "(3) Exceptions. — This subsection shall not apply to the extent otherwise provided in this section with respect to ap- plicable time periods. This subsection shall also not apply to any requirements relating to bonding, insurance, or financial responsibility. Nothing in this Act shall be construed to require a State to comply with section 104(cX3) 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 re- medial 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 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 require- ment to such facilities which is more stringent than the stand- ards and requirements applicable to facilities which are not owned or operated by any such department, agency, or instrumentality. "(b) Notice.— Each department, agency, and instrumentality of the United States shall add to the inventory of Federal agency hazardous waste facilities required to be submitted under section 3016 of the Solid Waste Disposal Act (in addition to the information required under section 3016(aX3) of such Act) information on contamination from each facility owned or operated by the depart- ment, agency, or instrumentality if such contamination affects contiguous or adjacent property owned by the department, agency, or instrumentality or by any other person, including a description of the monitoring data obtained. "(c) Federal Agency Hazardous Waste Compuance Docket.— The Administrator shall establish a special Federal Agency Hazard- ous Waste Compliance Docket (hereinafter in this section referred to as the 'docket') which shall contain each of the following: "(1) All information submitted under section 3016 of the Solid Waste Disposal Act and subsection (b) of this section regarding any Federal facility and notice of each subsequent action taken under this Act with respect to the facility. "(2) Information submitted by each department, agency, or instrumentality of the United States under section 3005 or 3010 of such Act. "(3) Information submitted by the department, agency, or instrumentality under section 103 of this Act. The docket shall be available for public inspection at reasonable times. Six months after establishment of the docket and every 6 months thereafter, the Administrator shall publish in the Federal Register a list of the Federal facilities which have been included in the docket during the immediately preceding 6-month period. Such publication shall also indicate where in the appropriate regional office of the Environmental Protection Agency additional informa- tion may be obtained with respect to any facility on the docket. The Administrator shall establish a program to provide information to the public with respect to facilities which are included in the docket under this subsection. State and local governments. Ante, p. 1619. 42 use 6937. 42 use 6925, 6930. 42 use 9603. Public information. Federal Register, publication. 56 100 STAT. 1668 PUBLIC LAW 99-499— OCT. 17, 1986 State and local governments. "(d) Assessment and Evaluation.— Not later than 18 months after the enactment of the Superfund Amendments and Reauthor- ization Act of 1986, the Administrator shall take steps to assure that a preliminary assessment is conducted for each facility on the docket. Following such preliminary assessment, the Administrator shall, where appropriate — "(1) evaluate such facilities in accordance with the criteria established in accordance with section 105 under the National Contingency Plan for determining priorities among releases; and "(2) include such facilities on the National Priorities List maintained under such plan if the facility meets such criteria. Such criteria shall be applied in the same manner as the criteria are applied to facilities which are owned or operated by other persons. Evaluation and listing under this subsection shall be completed not later than 30 months after such date of enactment. Upon the receipt of a petition from the Governor of any State, the Administrator shall make such an evaluation of any facility included in the docket. "(e) Required Action by Department. — "(1) RI/FS.— Not later than 6 months after the inclusion of any facility on the National Priorities List, the department, agency, or instrumentality which owns or operates such facility shall, in consultation with the Administrator and appropriate State authorities, commence a remedial investigation and fea- sibility study for such facility. In the case of any facility which is listed on such list before the date of the enactment of this section, the department, agency, or instrumentality which owns or operates such facility shall, in consultation with the Adminis- trator and appropriate State authorities, commence such an investigation and study for such facility within one year after such date of enactment. The Administrator and appropriate State authorities shall publish a timetable and deadlines for expeditious completion of such investigation and study. "(2) Commencement of remedial action; interagency agreement.— The Administrator shall review the results of each investigation and study conducted as provided in para- graph (1). Within 180 days thereafter, the head of the depart- ment, agency, or instrumentality concerned shall enter into an interagency agreement with the Administrator for the expedi- tious completion by such department, agency, or instrumental- ity of all necessary remedial action at such facility. Substantial continuous physical onsite remedial action shall be commenced at each facility not later than 15 months after completion of the investigation and study. All such interagency agreements, including review of alternative remedial action plans and selec- tion of remedial action, shall comply with the public participa- tion requirements of section 117. "(3) Completion of remedial actions.— Remedial actions at facilities subject to interagency agreements under this section shall be completed as expeditiously as practicable. Each agency shall include in its annual budget submissions to the Congress a review of alternative agency funding which could be used to provide for the costs of remedial action. The budget submission shall also include a statement of the hazard posed by the facility to human health, welfare, and the environment and identify the specific consequences of failure to begin and complete remedial action. 57 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1669 "(4) Contents of agreement.— Each interagency agreement under this subsection shall include, but shall not be limited to, each of the following: "(A) A review of alternative remedial actions and selec- tion of a remedial action by the head of the relevant department, agency, or instrumentality and the Adminis- trator or, if unable to reach agreement on selection of a remedial action, selection by the Administrator. "(B) A schedule for the completion of each such remedial action. "(C) Arrangements for long-term operation and mamte- nance of the facility. "(5) Annual report.— Each department, agency, or instrumentality responsible for compliance with this section shall furnish an annual report to the Congress concerning its progress in implementing the requirements of this section. Such reports shall include, but shall not be limited to, each of the following items: "(A) A report on the progress in reachmg mteragency agreements under this section. "(B) The specific cost estimates and budgetary proposals involved in each interagency agreement. "(C) A brief summary of the public comments regardmg each proposed interagency agreement. "(D) A description of the instances in which no agreement was reached. "(E) A report on progress in conducting investigations and studies under paragraph (1). "(F) A report on progress in conducting remedial actions. "(G) A report on progress in conducting remedial action at facilities which are not listed on the National Priorities List. With respect to instances in which no agreement was reached within the required time period, the department, agency, or instrumentality filing the report under this paragraph shall include in such report an explanation of the reasons why no agreement was reached. The annual report required by this State and local paragraph shall also contain a detailed description on a State- governments. by-State basis of the status of each facility subject to this section, including a description of the hazard presented by each facility, plans and schedules for initiating and completing re- sponse action, enforcement status (where appropriate), and an explanation of any postponements or failure to complete re- sponse action. Such reports shall also be submitted to the affected States. "(6) Settlements with other parties.— If the Administrator, in consultation with the head of the relevant department, agency, or instrumentality of the United States, determines that remedial investigations and feasibility studies or remedial action will be done properly at the Federal facility by another potentially responsible party within the deadlines provided in paragraphs (1), (2), and (3) of this subsection, the Administrator may enter into an agreement with such party under section 122 (relating to settlements). Following approval by the Attorney General of any such agreement relating to a remedial action, the agreement shall be entered in the appropriate United States district court as a consent decree under section 106 of this Act. 42 USC 9606. 58 100 STAT. 1670 PUBLIC LAW 99-499— OCT. 17, 1986 I (0 State and Local Participation.— The Administrator and each department, agency, or instrumentality responsible for compli- ance with this section shall afford to relevant State and local officials the opportunity to participate in the planning and selection of the remedial action, including but not limited to the review of all applicable data as it becomes available and the development of studies, reports, and action plans. In the case of State officials, the opportunity to participate shall be provided in accordance with section 121. "(g) Transfer of Authorities.— Except for authorities which are delegated by the Administrator to an officer or employee of the Environmental Protection Agency, no authority vested in the Administrator under this section may be transferred, by executive order of the President or otherwise, to any other officer or employee of the United States or to any other person. Real property "(h) PROPERTY TRANSFERRED BY FEDERAL AGENCIES.— "(1) Notice.— After the last day of the 6-month period begin- ning on the effective date of regulations under paragraph (2) of this subsection, whenever anv department, agency, or instrumentality of the United States enters into any contract for the sale or other transfer of real property which is owned by the United States and on which any hazardous substance was stored for one year or more, known to have been released, or disposed of, the head of such department, agency, or instrumen- tality shall include in such contract notice of the type and quantity of such hazardous substance and notice of the time at which such storage, release, or disposal took place, to the extent such information is available on the basis of a complete search of agency files. "(2) Form of notice; regulations.— Notice under this subsec- tion shall be provided in such form and manner as may be provided in regulations promulgated by the Administrator. As promptly as practicable after the enactment of this subsection but not later than 18 months after the date of such enactment, and after consultation with the Administrator of the General Services Administration, the Administrator shall promulgate regulations regarding the notice required to be provided under this subsection. "(3) Contents of certain deeds —After the last day of the 6- month period beginning on the effective date of regulations under paragraph (2) of this subsection, in the case of any real property owned by the United States on which any hazardous substance was stored for one year or more, known to have been released, or disposed of, each deed entered into for the transfer of such property by tht Liuted States to any other person or entity f?hall contain— "(Aj U) the extent such information is available on the basis of a complete search of agency files — "(i) a notice of the type and quantity of such hazard ous substances, "(ii) notice of the time at which such storage, release, or disposal took place, and "(iii) a description of the remedial action taken, if any, and "(B) a covenant warranting that— "(i) all remedial action necessary to protect human health and the environment with respect to any such 59 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1671 42 use 6901 note. substance remaining on the property has been taken before the date of such transfer, and "(ii) any additional remedial action found to be nec- essary after the date of such transfer shall be con- ducted by the United States. The requirements of subparagraph (B) shall not apply m any case in which the person or entity to whom the property is transferred is a potentially responsible party with respect to such real property. xt , • "(i) Obligations Under Solid Waste Disposal Act.— Nothmg m this section shall affect or impair the obligation of any department, agency, or instrumentality of the United States to comply with any requirement of the Solid Waste Disposal Act (including corrective action requirements). "(j) National Security.— ... . , „ .^ ^tto "(1) Site specific presidential orders.— The President may President of u.b. issue such orders regarding response actions at any specified site or facility of the Department of Energy or the Department of Defense as may be necessary to protect the national security interests of the United States at that site or facility. Such orders may include, where necessary to protect such interests, an exemption from any requirement contained in this title or under title III of the Superfund Amendments and Reauthoriza- tion Act of 1986 with respect to the site or facility concerned. The President shall notify the Congress within 30 days of the issuance of an order under this paragraph providing for any such exemption. Such notification shall include a statement of the reasons for the granting of the exemption. An exemption under this paragraph shall be for a specified period which may not exceed one year. Additional exemptions may be granted, each upon the President's issuance of a new order under this paragraph for the site or facility concerned. Each such addi- tional exemption shall be for a specified period which may not exceed one year. It is the intention of the Congress that when- ever an exemption is issued under this paragraph the response action shall proceed as expeditiously as practicable. The Con- gress shall be notified periodically of the progress of any re- sponse action with respect to which an exemption has been issued under this paragraph. No exemption shall be granted under this paragraph due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. "(2) Classified information.— Notwithstanding any other provision of law, all requirements of the Atomic Energy Act and all Executive orders concerning the handling of restricted data and national security information, including 'need to know' requirements, shall be applicable to any grant of access to classified information under the provisions of this Act or under title III of the Superfund Amendments and Reauthorization Act of 1986.". (b) Limited Grandfather— Section 120 of CERCLA shall not apply to any response action or remedial action for which a plan is under development by the Department of Energy on the date of enactment of this Act with respect to facilities— (1) owned or operated by the United States and subject to the jurisdiction of such Department; 42 use 2011 note. 42 use 9620 note. 60 100 STAT. 1672 PUBLIC LAW 99-499— OCT. 17, 1986 Missouri. President of U.S. 42 use 9621. 42 use 9604, 9606. I (2) located in St. Charles and St. Louis counties, Missouri, or the city of St. Louis, Missouri, and (3) published in the National Priorities List. In preparing such plans, the Secretary of Energy shall consult with the Administrator of the Environmental Protection Agency. SEC. 121. CLEANUP STANDARDS. (a) Amendment of CERCLA.— Title I of CERCLA is amended by adding the following new section after section 120: "SEC. 121. CLEANUP STANDARDS. "(a) Selection of Remedial Action.— The President shall select appropriate remedial actions determined to be necessary to be carried out under section 104 or secured under section 106 which are in accordance with this section and, to the extent practicable, the national contingency plan, and which provide for cost-effective re- sponse. In evaluating the cost effectiveness of prop)osed alternative remedial actions, the President shall take into account the total short- and long-term costs of such actions, including the costs of operation and maintenance for the entire period during which such activities will be required. "(b) General Rules.— (1) Remedial actions in which treatment which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, and contaminants is a principal element, are to be preferred over remedial actions not involving such treatment. The offsite transport and disposal of hazardous substances or contaminated materials without such treat- ment should be the least favored alternative remedial action where practicable treatment technologies are available. The President shall conduct an assessment of permanent solutions and alternative treatment technologies or resource recovery technologies that, in whole or in part, will result in a permanent and significant decrease in the toxicity, mobility, or volume of the hazardous substance, pollutant, or contaminant. In making such assessment, the Presi- dent shall specifically address the long-term effectiveness of various alternatives. In assessing alternative remedial actions, the President shall, at a minimum, take into account: "(A) the long-term uncertainties associated with land disposal; "(B) the goals, objectives, and requirements of the Solid Waste Disposal Act; "(C) the persistence, toxicity, mobility, and propensity to bioaccumulate of such hazardous substances and their constituents; "(D) short- and long-term potential for adverse health effects from human exposure; "(E) long-term maintenance costs; "(F) the potential for future remedial action costs if the alternative remedial action in question were to fail; and "(G) the potential threat to human health and the environ- ment associated with excavation, transportation, and redisposal, or containment. The President shall select a remedial action that is protective of human health and the environment, that is cost effective, and that utilizes permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent prac- ticable. If the President selects a remedial action not appropriate for 61 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1673 a preference under this subsection, the President shall publish an explanation as to why a remedial action involving such reductions was not selected. "(2) The President may select an alternative remedial action meeting the objectives of this subsection whether or not such action has been achieved in practice at any other facility or site that has similar characteristics. In making such a selection, the President may take into account the degree of support for such remedial action by parties interested in such site. "(c) Review.— If the President selects a remedial action that results in any hazardous substances, pollutants, or contaminants remaining at the site, the President shall review such remedial action no less often than each 5 years after the initiation of such remedial action to assure that human health and the environment are being protected by the remedial action being implemented. In addition, if upon such review it is the judgment of the President that action is appropriate at such site in accordance with section 104 or 106, the President shall take or require such action. The President shall report to the Congress a list of facilities for which such review is required, the results of all such reviews, and any actions taken as a result of such reviews. "(d) Degree of Cleanup. — (1) Remedial actions selected under this section or otherwise required or agreed to by the President under this Act shall attain a degree of cleanup of hazardous sub- stances, pollutants, and contaminants released into the environment and of control of further release at a minimum which assures protection of human health and the environment. Such remedial actions shall be relevant and appropriate under the circumstances presented by the release or threatened release of such substance, pollutant, or contaminant. "(2XA) With resp)ect to any hazardous substance, pollutant or contaminant that will remain onsite, if— "(i) any standard, requirement, criteria, or limitation under any Federal environmental law, including, but not limited to, the Toxic Substances Control Act, the Safe Drinking Water Act, the Clean Air Act, the Clean Water Act, the Marine Protection, Research and Sanctuaries Act, or the Solid Waste Disposal Act; or "(ii) any promulgated standard, requirement, criteria, or limitation under a State environmental or facility siting law that is more stringent than any Federal standard, requirement, criteria, or limitation, including each such State standard, requirement, criteria, or limitation contained in a program approved, authorized or del^ated by the Administrator under a statute cited in subparagraph (A), and that has been identified to the President by the State in a timely manner, is legally applicable to the hazardous substance or pollutant or contaminant concerned or is relevant and appropriate under the circumstances of the release or threatened release of such hazardous substance or pollutant or contaminant, the remedial action selected under section 104 or secured under section 106 shall require, at the completion of the remedial action, a level or standard of control for such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard, requirement, criteria, or limitation. Such remedial action shall require a level or standard of control which at least attains Maximum Contaminant Level Goals established under the Safe 42 use 9604, 9606. Reports. State and local governments. 15 use 2601 note, 42 USe 201 note. 42 use 7401 note. 33 USe 1251 note. 33 use 1401 note, 42 USe 6901 note. 62 100 STAT. 1674 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 201 note. 33 use 1314, 1313. 33 use 1251 note. { Dnnking 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. "(BXi) In determining whether or not any water quality criteria under the Clean Water Act is relevant and appropriate under the circumstances of the release or threatened release, the President shall consider the designated or potential use of the surface or groundwater, the environmental media affected, the purposes for which such criteria were developed, and the latest information available. "(ii) For the purposes of this section, a process for establishing 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 bound- ary of the facility, as defined at the conclusion of the remedial investigation and feasibility study, except where— "(I) there are known and projected points of entry of such groundwater into surface water; and ."(H) oil the basis of measurements or projections, there is or will be no statistically significant increase of such constituents from such groundwater in such surface water at the point of entry or at any point where there is reason to believe accumula- tion of constituents may occur downstream; and "(III) the remedial action includes enforceable measures that will preclude human exposure to the contaminated ground- water at any point between the facility boundary and all known and projected points of entry of such groundwater into surface water then the assumed point of human exposure may be at such known and projected points of entry. "(CXi) Clause (ii) of this subparagraph shall be applicable only in cases where, due to the Presidents selection, in compliance with subsection (bXD, of a proposed remedial action which does not permanently and significantly reduce the volume, toxicity, or mobil- ity of hazardous substances, pollutants, or contaminants, the pro- posed disposition of waste generated by or associated with the remedial action selected by the President is land disposal in a State referred to in clause (ii). "(ii) Except as provided in clauses (iii) and (iv), a State standard, requirement, criteria, or limitation (including any State siting standard or requirement) which could effectively result in the state- wide prohibition of land disposal of hazardous substances, pollut- ants, or contaminants shall not apply. "(iii) Any State standard, requirement, criteria, or limitation referred to in clause (ii) shall apply where each of the following conditions is met: "(I) The State standard, requirement, criteria, or limitation is of general applicability and was adopted by formal means. "(II) The State standard, requirement, criteria, or limitation was adopted on the basis of hydrologic, geologic, or other rel- evant considerations and was not adopted for the purpose of precluding onsite remedial actions or other land disposal for reasons unrelated to protection of human health and the environment. 63 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1675 42 use 6924, 6925. 15 use 2601 note. "(m) The State arranges for, and assures payment of the incremental costs of utilizing, a facility for disposition of the hazardous substances, pollutants, or contaminants concerned. "(iv) Where the remedial action selected by the President does not conform to a State standard and the State has initiated a law suit against the Environmental Protection Agency prior to May 1, 1986, to seek to have the remedial action conform to such standard, the President shall conform the remedial action to the State standard. The State shall assure the availability of an offsite facility for such remedial action. "(3) In the case of any removal or remedial action involving the transfer of any hazardous substance or pollutant or contaminant offsite, such hazardous substance or pollutant or contaminant shall only be transferred to a facility which is operating in compliance with section 3004 and 3005 of the Solid Waste Disposal Act (or, where applicable, in compliance with the Toxic Substances Control Act or other applicable Federal law) and all applicable State requirements. Such substance or pollutant or contaminant may be transferred to a land disposal facility only if the President deter- mines that both of the following requirements are met: "(A) The unit to which the hazardous substance or pollutant or contaminant is transferred is not releasing any hazardous waste, or constituent thereof, into the groundwater or surface water or soil. "(B) All such releases from other units at the facility are being controlled by a corrective action program approved by the Administrator under subtitle C of the Solid Waste Disposal Act. 42 USC 6921. The President shall notify the owner or operator of such facility of determinations under this paragraph. "(4) The President may select a remedial action meeting the requirements of paragraph (1) that does not attain a level or stand- ard of control at least equivalent to a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation as required by paragraph (2) (including subparagraph (B) thereof), if the President finds that — "(A) the remedial action selected is only part of a total remedial action that will attain such level or standard of control when completed; "(B) compliance with such requirement at that facility will result in greater risk to human health and the environment than alternative options; "(C) compliance with such requirements is technically imprac- ticable from an engineering perspective; "(D) the remedial action selected will attain a standard of performance that is equivalent to that required under the otherwise applicable standard, requirement, criteria, or limita- tion, through use of another meth(>d or approach; "(E) with respect to a State standard, requirement, criteria, or limitation, the State has not consistently applied (or dem- onstrated the intention to consistently apply) the standard, requirement, criteria, or limitation in similar circumstances at other remedial actions within the State; or "(F) in the case of a remedial action to be undertaken solely under section 104 using the Fund, selection of a remedial action 42 use 9604. that attains such level or standard of control will not provide a balance between the need for protection of public health and welfare and the environment at the facility under consider- •:-v 64 100 STAT. 1676 PUBLIC LAW 99-499— OCT. 17, 1986 Public information. State and local governments. Regulations. State and local governments. ation, and the availability of amounts from the Fund to respond to other sites which present or may present a threat to public health or welfare or the environment, taking into consideration the relative immediacy of such threats. The President shall publish such findings, together with an expla- nation and appropriate documentation. "(e) Permits and Enforcement.— (1) No Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected and carried out in compliance with this section. "(2) A State may enforce any Federal or State standard, require- ment, criteria, or limitation to which the remedial action is required to conform under this Act in the United States district court for the district in which the facility is located. Any consent decree shall require the parties to attempt expeditiously to resolve disagree- ments concerning implementation of the remedial action informally with the appropriate Federal and State agencies. Where the parties agree, the consent decree may provide for administrative enforce- ment. Each consent decree shall also contain stipulated penalties for violations of the decree in an amount not to exceed $25,000 per day, which may be enforced by either the President or the State. Such stipulated penalties shall not be construed to impair or affect the authority of the court to order compliance with the specific terms of any such decree. "(f) State Involvement.— (1) The President shall promulgate regulations providing for substantial and meaningful involvement by each State in initiation, development, and selection of remedial actions to be undertaken in that State. The regulations, at a mini- mum, shall include each of the following: "(A) State involvement in decisions whether to perform a preliminary assessment and site inspection. "(B) Allocation of responsibility for hazard ranking system scoring. "(C) State concurrence in deleting sites from the National Priorities List. "(D) State participation in the long-term planning process for all remedial sites within the State. "(E) A reasonable opportunity for States to review and com- ment on each of the following: "(i) The remedial investigation and feasibility study and all data and technical documents leading to its issuance. "(ii) The planned remedial action identified in the re- medial investigation and feasibility study. "(iii) The engineering design following selection of the final remedial action. "(iv) Other technical data and reports relating to im- plementation of the remedy. "(v) Any proposed finding or decision by the President to exercise the authority of subsection (dX4). "(F) Notice to the State of negotiations with potentially responsible parties regarding the scope of any response action at a facility in the State and an opportunity to participate in such negotiations and, subject to paragraph (2), be a party to any settlement. "(G) Notice to the State and an opportunity to comment or the President's proposed plan for remedial action as well as on alternative plans under consideration. The President's proposed 65 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1677 decision regarding the selection of remedial action shall be accompanied by a response to the comments submitted by the State, including an explanation regarding any decision under subsection (dX4) on compliance with promulgated State stand- ards A copy of such response shall also be provided to the btate. "(H) Prompt notice and explanation of each proposed action to the State in which the facility is located. j . u n Prior to the promulgation of such regulations, the President shall provide notice to the State of negotiations with potentially respon- sible parties regarding the scope of any response action at a facility in the State, and such State may participate in such negotiations and, subject to paragraph (2), any settlements. "(2XA) This paragraph shall apply to remedial actions secured under section 106. At least 30 days prior to the entering of any consent decree, if the President proposes to select a remedial action that does not attain a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation, under the authority ot subsection (dX4), the President shall provide an opportunity for the State to concur or not concur in such selection. If the State concurs, the State may become a signatory to the consent decree. "(B) If the State does not concur in such selection, and the btate desires to have the remedial action conform to such standard, requirement, criteria, or limitation, the State shall intervene in the action under section 106 before entry of the consent decree to seek to have the remedial action so conform. Such intervention shall be a matter of right. The remedial action shall conform to such standard, requirement, criteria, or limitation if the State establishes, on the administrative record, that the finding of the President was not supported by substantial evidence. If the court determines that the remedial action shall conform to such standard, requirement cri- teria, or limitation, the remedial action shall be so modified and the State may become a signatory to the decree. If the court determines that the remedial action need not conform to such standard, require- ment, criteria, or limitation, and the State pays or assures the payment of the additional costs attributable to meeting such stand- ard requirement, criteria, or limitation, the remedial action shall be so modified and the State shall become a signatory to the decree "(C) The President may conclude settlement negotiations with potentially responsible parties without State concurrence. "(3XA) This paragraph shall apply to remedial actions at facilities owned or operated by a department, agency, or instrumentality of the United States. At least 30 days prior to the publication of the President's final remedial action plan, if the President proposes to select a remedial action that does not attain a legally applicable or relevant and appropriate standard, requirement, criteria, or limita- tion under the authority of subsection (dX4), the President shall provide an opportunity for the State to concur or not concur in such selection. If the State concurs, or does not act withm 30 days, the remedial action may proceed. , , . j j • "(B) If the State does not concur m such selection as provided in subparagraph (A), and desires to have the remedial action conform to such standard, requirement, criteria, or limitation, the State may maintain an action as follows: „ , , „ r ^ ^- c u "(i) If the President has notified the State of selection of such a remedial action, the State may bring an action within 30 days of such notification for the sole purpose of determining whether the finding of the President is supported by substantial evi- 42 use 9606. 66 100 STAT. 1678 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 9621 note. President of U.S. 42 use 9622. Ante, p. 1618. dence. Such action shall be brought in the United States district court for the district in which the facility is located. "(ii) If the State establishes, on the administrative record, that the President's finding is not supported by substantial evidence, the remedial action shall be modified to conform to such standard, requirement, criteria, or limitation. "(iii) If the State fails to establish that the President's finding was not supported by substantial evidence and if the State pays, within 60 days of judgment, the additional costs attributable to meeting such standard, requirement, criteria, or limitation, the remedial action shall be selected to meet such standard, require- ment, criteria, or limitation. If the State fails to pay within 60 days, the remedial action selected by the President shall pro- ceed through completion. "(C) Nothing in this section precludes, and the court shall not enjoin, the Federal agency from taking any remedial action unre- lated to or not inconsistent with such standard, requirement, cri- teria, or limitation.". (b) Effective Date. — With respect to section 121 of CERCLA, as added by this section — (1) The requirements of section 121 of CERCLA shall not apply to any remedial action for which the Record of Decision (hereinafter in this section referred to as the "ROD") was signed, or the consent decree was lodged, before date of enact- ment. (2) If the ROD was signed, or the consent decree lodged, within the 30-day period immediately following enactment of the Act, the Administrator shall certify in writing that the portion of the remedial action covered by the ROD or consent decree complies to the maximum extent practicable with section 121 of CERCLA. Any ROD signed before enactment of this Act and reopened after enactment of this Act to modify or supplement the selection of remedy shall be subject to the requirements of section 121 of CERCLA. SEC. 122. SETTLEMENTS. (a) New Section.— Title I of CERCLA is amended by adding the following new section after section 121: "SEC. 122. SETTLEMENTS. "(a) Authority To Enter Into Agreements. — The President, in his discretion, may enter into an agreement with any person (includ- ing the owner or operator of the facility from which a release or substantial threat of release emanates, or any other potentially responsible person), to perform any response action (including any action described in section 104(b)) if the President determines that such action will be done properly by such person. Whenever prac- ticable and in the public interest, as determined by the President, the President shall act to facilitate agreements under this section that are in the public interest and consistent with the National Contingency Plan in order to expedite effective remedial actions and minimize litigation. If the President decides not to use the proce- dures in this section, the President shall notify in writing poten- tially responsible parties at the facility of such decision and the reasons why use of the procedures is inappropriate. A decision of the 67 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1679 President to use or not to use the procedures in this section is not subject to judicial review. "(b) Agreements With Potentially Responsible Parties.— "(1) Mixed funding.— An agreement under this section may provide that the President will reimburse the parties to the agreement from the Fund, with interest, for certain costs of actions under the agreement that the parties have agreed to perform but which the President has agreed to finance. In any case in which the President provides such reimbursement, the President shall make all reasonable efforts to recover the amount of such reimbursement under section 107 or under 42USC9607 other relevant authorities. "(2) Reviewability.— The President's decisions regarding the availability of fund financing under this subsection shall not be subject to judicial review under subsection (d). "(3) Retention of funds.— If, as part of any agreement, the President will be carrying out any action and the parties will be paying amounts to the President, the President may, notwith- standing any other provision of law, retain and use such amounts for purposes of carrying out the agreement. "(4) Future Obugation of fund. — In the case of a completed remedial action pursuant to an agreement described in para- graph (1), the Fund shedl be subject to an obligation for subse- quent remedial actions at the same facility but only to the extent that such subsequent actions are necessary by reason of the failure of the original remedial action. Such obligation shall be in a proportion equal to, but not exceeding, the proportion contributed by the Fund for the original remedial action. The Fund's obligation for such future remedial action may be met through Fund expenditures or through payment, following settlement or enforcement action, by parties who were not signatories to the original agreement. "(c) Effect of Agreement.— "(1) Liability.— Whenever the President has entered into an agreement under this section, the liability to the United States under this Act of each party to the agreement, including any future liability to the United States, arising from the release or threatened release that is the subject of the agreement shall be limited as provided in the agreement pursuant to a covenant not to sue in accordance with subsection (f). A covenant not to sue may provide that future liability to the United States of a settling potentially responsible party under the agreement may be limited to the same proportion as that established in the original settlement agreement. Nothing in this section shall limit or otherwise affect the authority of any court to review in the consent decree process under subsection (d) any covenant not to sue contained in an agreement under this section. In determining the extent to which the liability of parties to an agreement shall be limited pursuant to a covenant not to sue, the President shall be guided by the principle that a more complete covenant not to sue «hall be provided for a more permanent remedy undertaken by such parties. "(2) Actions against other persons— If an agreement has been entered into under this section, the President may take any action under section 106 against any person who is not a 42 USC 9606. party to the agreement, once the period for submitting a pro- 68 100 STAT. 1680 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 9606, 9607. posal under subsection (eX2XB) has expired. Nothing in this section shall be construed to affect either of the following: "(A) The liability of any person under section 106 or 107 with respect to any costs or damages which are not included in the agreement. "(B) The authority of the President to maintain an action under this Act against any person who is not a party to the agreement. "(d) Enforcement. — "(1) Cleanup agreements. — "(A) Consent decree.— Whenever the President enters into an agreement under this section with any potentially responsible party with respect to remedial action under section 106, following approval of the agreement by the Attorney General, except as otherwise provided in the case of certain administrative settlements referred to in subsec- tion (g), the agreement shall be entered in the appropriate United States district court as a consent decree. The Presi- dent need not make any finding regarding an imminent and substantial endangerment to the public health or the environment in connection with any such agreement or consent decree. "(B) Effect. — The entry of any consent decree under this subsection shall not be construed to be an acknowledgment by the parties that the release or threatened release con- cerned constitutes an imminent and substantial endangerment to the public health or welfare or the environment. Except as otherwise provided in the Federal Rules of Evidence, the participation by any party in the process under this section shall not be considered an admis- sion of liability for any purpose, and the fact of such participation shall not be admissible in any judicial or administrative proceeding, including a subsequent proceed- ing under this section. "(C) Structure. — The President may fashion a consent decree so that the entering of such decree and compliance with such decree or with any determination or agreement made pursuant to this section shall not be considered an admission of liability for any purpose. "(2) PuBUC participation. — "(A) FiUNG OF PROPOSED JUDGMENT.— At least 30 days before a final judgment is entered under paragraph (1), the proposed judgment shall be filed with the court. "(B) Opportunity for comment. — The Attorney General shall provide an opportunity to persons who are not named as parties to the action to comment on the proposed judg- ment before its entry by the court as a final judgment. The Attorney General shall consider, and file with the court, any written comments, views, or allegations relating to the proposed judgment. The Attorney General may withdraw or withhold its consent to the proposed judgment if the comments, views, and allegations concerning the judgment disclose facts or considerations which indicate that the proposed judgment is inappropriate, improper, or inadequate. "(3) 104(b) agreements. — Whenever the President enters into an agreement under this section with any potentially respon- 69 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1681 Public information. Classified information. sible^ party with respect to action under section 104(b), the Ante, p. 1617. President shall issue an order or enter into a decree setting forth the obligations of such party. The United States district court for the district in which the release or threatened release occurs may enforce such order or decree. '(e) Special Notice Procedures.— "(1) Notice.— Whenever the President determines that a period of negotiation under this subsection would facilitate an agreement with potentially responsible parties for taking re- sponse action (including any action described in section 104(b)) and would expedite remedial action, the President shall so notify all such parties and shall provide them with information concerning each of the following: "(A) The names and addresses of potentially responsible parties (including owners and operators and other persons referred to in section 107(a)), to the extent such information is available. "(B) To the extent such information is available, the volume and nature of substances contributed by each poten- tially responsible party identified at the facility. "(C) A ranking by volume of the substances at the facil- ity, to the extent such information is available. The President shall make the information referred to in this paragraph available in advance of notice under this paragraph upon the request of a potentially responsible party in accord- ance with procedures provided by the President. The provisions of subsection (e) of section 104 regarding protection of confiden- tial information apply to information provided under this para- graph. Disclosure of information generated by the President under this section to persons other than the Congress, or any duly authorized Committee thereof, is subject to other privileges or protections provided by law, including O^ut not limited to) those applicable to attorney work product. Nothing contained in this paragraph or in other provisions of this Act shall be construed, interpreted, or applied to diminish the required disclosure of information under other provisions of this or other Federal or State laws. "(2) Negotiation.— "(A) Moratorium.— Except as provided in this subsec- tion, the President may not commence action under section 104(a) or take any action under section 106 for 120 days after providing notice and information under this subsec- tion with respect to such action. Except as provided in this subsection, the President may not commence a remedial investigation and feasibility study under section 104(b) for 90 days after providing notice and information under this subsection with respect to such action. The President may commence any additional studies or investigations au- thorized under section 104(b), including remedial design, during the negotiation period. "(B) Proposals. — Persons receiving notice and informa- tion under paragraph (1) of this subsection with respect to action under section 106 shall have 60 days from the date of receipt of such notice to make a proposal to the President for undertaking or financing the action under section 106. Persons receiving notice and information under paragraph (1) of this subsection with respect to action under section 42 use 9606. 70 100 STAT. 1682 PUBLIC LAW 99-499— OCT. 17, 1986 Courts, U.S. 104(b) shall have 60 days from the date of receipt of such notice to make a proposal to the President for undertaking or financing the action under section 104(b). "(C) Additional parties.— If an additional potentially responsible party is identified during the negotiation period or after an agreement has been entered into under this subsection concerning a release or threatened release, the President may bring the additional party into the negotia- tion or enter into a separate agreement with such party. '(3) Preliminary allocation of responsibiuty. — "(A) In general.— The President shall develop guidelines for preparing nonbinding preliminary allocations of respon- sibility. In developing these guidelines the President may include such factors as the President considers relevant, such as: volume, toxicity, mobility, strength of evidence, ability to pay, litigative risks, public interest consider- ations, precedential value, and inequities and aggravating factors. When it would expedite settlements under this section and remedial action, the President may, after completion of the remedial investigation and feasibility study, provide a nonbinding preliminary allocation of responsibility which allocates percentages of the total cost of response among potentially responsible parties at the facility. "(B) Collection of information.— To collect information necessary or appropriate for performing the allocation under subparagraph (A) or for otherwise implementing this section, the President may by subpoena require the attend- ance and testimony of witnesses and the production of reports, papers, documents, answers to questions, and other information that the President deems necessary. Witnesses shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In the event of contumacy or failure or refusal of any person to obey any such subpoena, any district court of the United States in which venue is proper shall have jurisdiction to order any such f)erson to comply with such subpoena. Any failure to obey such an order of the court is punishable by the court as a contempt thereof. "(C) Effect. — The nonbinding preliminary allocation of responsibility shall not be admissible as evidence in any proceeding, and no court shall have jurisdiction to review the nonbinding preliminary allocation of responsibility. The nonbinding preliminary allocation of responsibility shall not constitute an apportionment or other statement on the divisibility of harm or causation. "(D) Costs. — The costs incurred by the President in producing the nonbinding preliminary allocation of respon- sibility shall be reimbursed by the potentially responsible parties whose offer is accepted by the President. Where an offer under this section is not accepted, such costs shall be considered costs of response. "(E) Decision to reject offer.— Where the President, in his discretion, has provided a nonbinding preliminary allocation of responsibility and the potentially responsible parties have made a substantial offer providing for response to the President which he rejects, the reasons for the 71 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1683 rejection shall be provided in a written explanation. The President's decision to reject such an offer shall not be subject to judicial review. . . . < . ^u "/ " "(4) Failure to propose.— If the President determines that a good faith proposal for undertaking or financing action under section 106 has not been submitted within 60 days of the provision of notice pursuant to this subsection, the President may thereafter commence action under section 104(a) or take an action against any person under section 106 of this Act. If the President determines that a good faith proposal for undertaking or financing action under section 104(b) has not been submitted within 60 days after the provision of notice pursuant to this subsection, the President may thereafter commence action under section 104(b). "(5) Significant threats.— Nothing in this subsection shall limit the President's authority to undertake response or enforcement action regarding a significant threat to public health or the environment within the negotiation period estab- lished by this subsection. "(6) Inconsistent response action.— When either the i'resi- dent, or a potentially responsible party pursuant to an adminis- trative order or consent decree under this Act, has initiated a remedial investigation and feasibility study for a particular facility under this Act, no potentially responsible party may undertake any remedial action at the facility unless such re- medial action has been authorized by the President. '(f) Covenant Not To Sue.— . "(1) Discretionary covenants.— The President may, in his discretion, provide any person with a covenant not to sue concerning any liability to the United States under this Act including future liability, resulting from a release or threatened release of a hazardous substance addressed by a remedial action, whether that action is onsite or offsite, if each of the following conditions is met: "(A) The covenant not to sue is in the public interest. "(B) The covenant not to sue would expedite response action consistent with the National Contingency Plan under section 105 of this Act. "(C) The person is in full compliance with a consent decree under section 106 (including a consent decree en- tered into in accordance with this section) for response to the release or threatened release concerned. "(D) The response action has been approved by the President. "(2) Special covenants not to sue.— In the case ot any person to whom the President is authorized under paragraph (1) of this subsection to provide a covenant not to sue, for th.e portion of remedial action — . . "(A) which involves the transport and secure disposition offsite of hazardous substances in a facility meeting the requirements of sections 3004 (c), (d), (e), (0, (g), (m), (o), (p), (u), and (v) and 3005(c) of the Solid Waste Disposal Act, where the President has rejected a proposed remedial action that is consistent with the National Contingency Plan that does not include such offsite disposition and has thereafter required offsite disposition; or 42 use 9606. Ante, p. 1617. 42 use 9605. 42 use ^92 4, 6925. 72 100 STAT. 1684 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 9606, 9607. \ "(B) which involves the treatment of hazardous sub- stances so as to destroy, eliminate, or permanently immo- bilize the hazardous constituents of such substances, such that, in the judgment of the President, the substances no longer present any current or currently foreseeable future significant risk to public health, welfare or the environ- ment, no byproduct of the treatment or destruction process presents any significant hazard to public health, welfare or the environment, and all byproducts are themselves treated, destroyed, or contained in a manner which assures that such byproducts do not present any current or cur- rently foreseeable future significant risk to public health, welfare or the environment, the President shall provide such person with a covenant not to sue with respect to future liability to the United States under this Act for a future release or threatened release of hazardous substances from such facility, and a person provided such cov- enant not to sue shall not be liable to the United States under section 106 or 107 with respect to such release or threatened release at a future time. "(3) Requirement that remedial action be completed.— A covenant not to sue concerning future liability to the United States shall not take effect until the President certifies that remedial action has been completed in accordance with the requirements of this Act at the facility that is the subject of such covenant. "(4) Factors.— In assessing the appropriateness of a covenant not to sue under paragraph (1) and any condition to be included in a covenant not to sue under paragraph (1) or (2), the Presi- dent shall consider whether the covenant or condition is in the public interest on the basis of such factors as the following: "(A) The effectiveness and reliability of the remedy, in light of the other alternative remedies considered for the facility concerned. "(B) The nature of the risks remaining at the facility. "(C) The extent to which performance standards are in- cluded in the order or decree. "(D) The extent to which the response action provides a complete remedy for the facility, including a reduction in the hazardous nature of the substances at the facility. "(E) The extent to which the technology used in the response action is demonstrated to be effective. "(F) Whether the Fund or other sources of funding would be available for any additional remedial actions that might eventually be necessary at the facility. "(G) Whether the remedial action will be carried out, in whole or in significant part, by the responsible parties themselves. "(5) Satisfactory performance.— Any covenant not to sue under this subsection shall be subject to the satisfactory performance by such party of its obligations under the agree- ment concerned. "(6) Additional condition for future uabiuty— (A) Except for the portion of the remedial action which is subject to a covenant not to sue under paragraph (2) or under subsection (g) (relating to de minimis settlements), a covenant not to sue a person concerning future liability to the United States shall 73 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1685 42 use 9606, 9607. include an exception to the covenant that allows the President to sue such person concerning future liability resulting from the release or threatened release that is the subject of the covenant where such liability arises out of conditions which are unknown at the time the President certifies under paragraph (3) that remedial action has been completed at the facility concerned. "(B) In extraordinary circumstances, the President may deter- mine, after assessment of relevant factors such as those referred to in paragraph (4) and volume, toxicity, mobility, strength of evidence, ability to pay, litigative risks, public interest consider- ations, precedential value, and inequities and aggravating fac- tors, not to include the exception referred to in subparagraph (A) if other terms, conditions, or requirements of the agreement containing the covenant not to sue are sufficient to provide all reasonable assurances that public health and the environment will be protected from any future releases at or from the 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 appro- priate to assure protection of public health, welfare, and the environment. "(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 con- cerned and, in the judgment of the President, the conditions in either of the following subparagraph (A) or (B) are met: "(A) Both of the following are minimal in comparison to other hazardous substances at the facility: "(i) The amount of the hazardous substances contrib- uted by that party to the facility. "(ii) The toxic or other hazardous effects of the sub- stances contributed by that party to the facility. "(B) The potentially responsible party— "(i) is the owner of the real property on or in which Real property, 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 dis- posal 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 (0. o;^! Real property. 74 100 STAT. 1686 PUBLIC LAW 99-499— OCT. 17, 1986 Claims. Clfiims. 42 use 9607. Regulations. "(3) Expedited agreement. — The President shall reach any such settlement or grant any such covenant not to sue as soon as possible after the President has available the information necessary to reach such a settlement or grant such a covenant. "(4) Consent decree or administrative order. — A settle- ment under this subsection shall be entered as a consent decree or embodied in an administrative order setting forth the terms of the settlement. In the case of any facility where the total response costs exceed $500,000 (excluding interest), if the settle- ment is embodied as an administrative order, the order may be issued only with the prior written approval of the Attorney Cj^eneral. If the Attorney General or his designee has not ap- proved 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 threat- ened 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 terins so provide, but it reduces the potential liability of the others by the amount of the settlement. "(6) Settlements with other potentially responsible par- ties.— Nothing in this subsection shall be construed to affect the authority of the President to reach settlements with other potentially responsible parties under this Act. "(h) Cost Recovery Settlement Authority.— "(1) Authority to settle. — The head of any department or agency with authority to undertake a response action under this Act pursuant to the national contingency plan may consider, compromise, and settle a claim under section 107 for costs incurred by the United States Government if the claim has not been referred to the Department of Justice for further action. In the case of any facility where the total response costs exceed $500,000 (excluding interest), any claim referred to in the preceding sentence may be compromised and settled only with the prior written approval of the Attorney General. "(2) Use of arbitration.— Arbitration in accordance with regulations promulgated under this subsection may be used as a method of settling claims of the United States where the total response costs for the facility concerned do not exceed $500,000 (excluding interest). After consultation with the Attorney Gen- eral, the department or £^ency head may establish and publish regulations for the use of arbitration or settlement under this subsection. "(3) Recovery of claims.— If any person fails to pay a claim that has been settled under this subsection, the department or agency head shall request the Attorney General to bring a civil action in an appropriate district court to recover the amount of such claim, plus costs, attorneys' fees, and interest from the date of the settlement. In such an action, the terms of the settlement shall not be subject to review. "(4) Claims for contribution. — A person who has resolved its liability to the United States under this subsection shall not be liable for claims for contribution regarding matters ad- 75 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1687 Federal Register, publication. ' dressed in the settlement. Such settlement shall not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement, "(i) Settlement Procedures.— "(1) PUBUCATION IN FEDERAL REGISTER.— At least 30 dayS before any settlement (including any settlement arrived at through arbitration) may become final under subsection (h), or under subsection (g) in the case of a settlement embodied in an administrative order, the head of the department or agency which has jurisdiction over the proposed settlement shall pub- lish in the Federal Register notice of the proposed settlement. The notice shall identify the facility concerned and the parties to the proposed settlement. "(2) Comment period.— For a 30-day period beginning on the date of publication of notice under paragraph (1) of a proposed settlement, the head of the department or agency which has jurisdiction over the proposed settlement shall provide an opportunity for persons who are not parties to the proposed settlement to file written comments relating to the proposed settlement. "(3) Consideration of comments.— The head of the depart- ment or agency shall consider any comments filed under para- graph (2) in determining whether or not to consent to the proposed settlement and may withdraw or withhold consent to the proposed settlement if such comments disclose facts or considerations which indicate the proposed settlement is inappropriate, improper, or inadequate. "(j) Natural Resources.— "(1) Notification of trustee. — Where a release or threat- ened release of any hazardous substance that is the subject of negotiations under this section may have resulted in damages to natural resources under the trusteeship of the United States, the President shall notify the Federal natural resource trustee of the negotiations and shall encourage the participation of such trustee in the negotiations. "(2) Covenant not to sue. — An agreement under this section may contain a covenant not to sue under section 107(aX4KC) for 42 USC 9607. damages to natural resources under the trusteeship of the United States resulting from the release or threatened release of hazardous substances that is the subject of the agreement, but only if the Federal natural resource trustee has agreed in writing to such covenant. The Federal natural resource trustee may agree to such covenant if the potentially responsible party agrees to undertake appropriate actions necessary to protect and restore the natural resources damaged by such release or threatened release of hazardous substances. "(k) Section Not Appucable to Vessels. — The provisions of this section shall not apply to releases from a vessel. "(1) Civil Penalties. — A potentially responsible party which is a party to an administrative order or consent decree entered pursuant to an agreement under this section or section 120 (relating to Federal facilities) or which is a party to an agreement under section 120 and which fails or refuses to comply with any term or condition of the order, decree or agreement shall be subject to a civil penalty in accordance with section 109. 76 100 STAT. 1688 PUBLIC LAW 99-499— OCT. 17, 1986 "(m) Appucability of General Principles of Law.— In the case of consent decrees and other settlements under this section (includ- ing covenants not to sue), no provision of this Act shall be construed to preclude or otherwise affect the applicability of general principles of law regarding the setting aside or modification of consent decrees or other settlements.". 42 use 9657. (b) CONTRIBUTION.— Section 308 of CERCLA is amended by adding the following at the end thereof: "If an administrative settlement under section 122 has the effect of limiting any person's right to obtain contribution from any party to such settlement, and if the effect of such limitation would constitute a taking without just compensation in violation of the fifth amendment of the Constitu- tion of the United States, such person shall not be entitled, under other laws of the United States, to recover compensation from the United States for such taking, but in any such case, such limitation on the right to obtain contribution shall be treated as having no force and effect.". 42 use 9623. SEC. 123. REIMBURSEMENT TO LOCAL GOVERNMENTS. (a) Title I of CERCLA is amended by adding the following after section 122: "SEC. 123. REIMBURSEMENT TO LOCAL GOVERNMENTS. "(a) Appucation. — Any general purpose unit of local government for a political subdivision which is affected by a release or threat- ened release at any facility may apply to the President for re- imbursement under this section. "(b) Reimbursement.— President of U.S. "(1) TEMPORARY EMERGENCY MEASURES.— The President is au- thorized to reimburse local community authorities for expenses incurred (before or after the enactment of the Superfund Amendments and Reauthorization Act of 1986) in carrying out temporary emergency measures necessary to prevent or miti- gate injury to human health or the environment associated with the release or threatened release of any hazardous substance or pollutant or contaminant. Such measures may include, where appropriate, security fencing to limit access, response to fires and explosions, and other measures which require immediate response at the local level. "(2) Local funds not supplanted. — Reimbursement under this section shall not supplant local funds normally provided for response. "(c) Amount. — The amount of any reimbursement to any local authority under subsection (bXD may not exceed $25,000 for a single response. The reimbursement under this section with respect to a single facility shall be limited to the units of local government having jurisdiction over the political subdivision in which the facil- ity is located. "(d) Procedure. — Reimbursements authorized pursuant to this section shall be in accordance with rules promulgated by the Administrator within one year after the enactment of the Superfund Amendments and Reauthorization Act of 1986.". SEC. 124. METHANE RECOVERY. (a) In General.— Title I of CEIRCLA is amended by adding the following new section after section 123: 77 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1689 "SEC. 124. METHANE RECOVERY. "(a) In General.— In the case of a facility at which equipment for the recovery or processing (including recirculation of condensate) of methane has been installed, for purposes of this Act: "(1) The owner or operator of such equipment shall not be considered an 'owner or operator', as defined in section 101(20), with respect to such facility. "(2) The owner or operator of such equipment shall not be considered to have arranged for disposal or treatment of any hazardous substance at such facility pursuant to section 107 of this Act. "(3) The owner or operator of such equipment shall not be subject to any action under section 106 with respect to such facility. "(b) Exceptions.— Subsection (a) does not apply with respect to a release or threatened release of a hazardous substance from a facility described in subsection (a) if either of the following cir- cumstances exist: "(1) The release or threatened release was primarily caused by activities of the owner or operator of the equipment de- scribed in subsection (a). "(2) The owner or operator of such equipment would be covered by paragraph (1), (2), (3), or (4) of subsection (a) of section 107 with respect to such release or threatened release if he were not the owner or operator of such equipment. In the case of any release or threatened release referred to in paragraph (1), the owner or operator of the equipment described in subsection (a) shall be liable under this Act only for costs or dam- ages primarily caused by the activities of such owner or operator", flt)) Regulation Under the Soud Waste Disposal Act— Unless the Administrator of the Environmental Protection Agency promul- gates regulations under subtitle C of the Solid Waste Disposal Act addressing the extraction of wastes from landfills as part of the process of recovering methane from such landfills, the owner and operator of equipment used to recover methane from a landfill shall not be deemed to be managing, generating, transporting, treating, storing, or disposing of hazardous or liquid wastes within the mean- ing of that subtitle. If the aqueous or hydrocarbon phase of the condensate or any other waste material removed from the gas recovered from the landfill meets any of the characteristics identi- fied under section 3001 of subtitle C of the Solid Waste Disposal Act, the preceding sentence shall not apply and such condensate phase or other waste material shall be deemed a hazardous waste under that subtitle, and shall be regulated accordingly. SEC. 125. CERTAIN SPECIAL STUDY WASTES. Title I of CERCLA is amended by adding the following new section after section 124: "SEC. 125. SECTION 3001(bK3KA)(i) WASTE. "(a) Revision of Hazard Ranking System— This section shall apply only to facilities which are not included or proposed for inclusion on the National Priorities List and which contain substan- tial volumes of waste described in section 3001(bX3XAXi) of the Solid Waste Disposal Act. As expeditiously as practicable, the President shall revise the hazard ranking system in effect under the National Contingency Plan with respect to such facilities in a manner which Waste disposal. 42 use 9624. 42 use 9607. 42 use 9606. 42 use 6921 note. 42 use 6921. 42 use 6921. President of U.S. 42 use 9625. 78 100 STAT. 1690 PUBLIC LAW 99-499— OCT. 17, 1986 assures appropriate consideration of each of the following site- specific characteristics of such facilities: "(1) The quantity, toxicity, and concentrations of hazardous constituents which are present in such waste and a comparison thereof with other wastes. "(2) The extent of, and potential for, release of such hazardous constituents into the environment. "(3) The degree of risk to human health and the environment posed by such constituents. "(b) Inclusion Prohibited. — Until the hazard ranking system is revised as required by this section, the President may not include on the National Priorities List any facility which contains substantial volumes of waste described in section 3001(b)(3XAXi) of the Solid 42 use 6921. Waste Disposal Act on the basis of an evaluation made principally on the volume of such waste and not on the concentrations of the hazardous constituents of such waste. Nothing in this section shall be construed to affect the President's authority to include any such facility on the National Priorities List based on the presence of other substances at such facility or to exercise any other authority of this Act with respect to such other substances.". SEC. 126. WORKER PROTECTION STANDARDS. 29 use 655 note (a) PROMULGATION— Within One year after the date of the enact- ment of this section, the Secretary of Labor shall, pursuant to 29 use 655 section 6 of the Occupational Safety and Health Act of 1970, promul- gate standards for the health and safety protection of employees engaged in hazardous waste operations. Regulations. (b) PROPOSED STANDARDS. — The Secretary of Labor shall issue proposed regulations on such standards which shall include, but need not be limited to, the following worker protection provisions: (1) Site analysis.— Requirements for a formal hazard analy- sis of the site and development of a site specific plan for worker protection. (2) Training.— Requirements for contractors to provide initial and routine training of workers before such worke;-s are per- mitted to engage in hazardous waste operations which would expose them to toxic substances. (3) Medical surveillance. — A program of regular medical examination, monitoring, and surveillance of workers engaged in hazardous waste operations which would expose them to toxic substances. (4) Protective equipment. — Requirements for appropriate personal protective equipment, clothing, and respirators for work in hazardous waste operations. (5) Engineering controls. — Requirements for engineering controls concerning the use of equipment and exposure of work- ers engaged in hazardous waste operations. (6) Maximum exposure umits. — Requirements for maximum exposure limitations for workers engaged in hazardous waste operations, including necessary monitoring and assessm.ent procedures. (7) Informational program.— A program to inform workers engaged in hazardous waste operations of the nature and degree of toxic exposure likely as a result of such hazardous waste operations. (8) Handung.— Requirements for the handling, transporting, labeling, and disposing of hazardous wastes. 79 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1691 (9) New technology program.— A program for the introduc- tion of new equipment or technologies that will maintain worker protections. r j (10) Decontamination procedures.— Procedures tor decon- tamination. (11) EiifERGENCY response.— Requirements for emergency re- sponse and protection of workers engaged in hazardous waste operations. , ^ , ^ (c) Final Regulations.— Final regulations under subsection (a) shall take effect one year after the date they are promulgated. In promulgating final regulations on standards under subsection (a), the Secretary of Labor shall include each of the provisions listed in paragraphs (1) through (11) of subsection (b) unless the Secretary determines that the evidence in the public record considered as a whole does not support inclusion of any such provision. (d) Specific Training Standards.— (1) Offsite instruction; field experience. — Standards promulgated under subsection (a) shall include training stand- ards requirinjg that general site workers (such as equipment operators, general laborers, and other supervised personnel) engaged in hazardous substance removal or other activities which expose or potentially expose such workers to hazardous substances receive a minimum of 40 hours of initial instruction off the site, and a minimum of three days of actual field experience under the direct supervision of a trained, experi- enced supervisor, at the time of assignment. The requirements of the preceding sentence shall not apply to any general site worker who has receive<^ the equivalent of such training. Work- ers who may be exposed to unique or special hazards shall be provided additional training. (2) Training of supervisors.— Standards promulgated under subsection (a) shall include training standards requiring that onsite managers and supervisors directly responsible for the hazardous waste operations (such as foremen) receive the same training as general site workers set forth in paragraph (1) of this subsection and at least eight additional hours of specialized training on managing hazardous waste operations. The require- ments of the preceding sentence shall not apply to any person who has received the equivalent of such training. (3) Certification; enforcement.— Such training standards shall contain provisions for certifying that general site workers, onsite managers, and supervisors have received the specified training and shall prohibit any individual who has not received the specified training from engaging in hazardous waste oper- ations covered by the standard. (4) Training of emergency response personnel.— Such training standards shall set forth requirements for the training of workers who are responsible for responding to hazardous emergency situations who may be exposed to toxic substances in carrying out their responsibilities. (e) Interim Regulations.— The Secretary of Labor shall issue interim final r^ulations under this section within 60 days after the enactment of this section which shall provide no less protection under this section for workers employed by contractors and emer- gency response workers than the protections contained in the Environmental Protection Agency Manual (1981) "Health and Safety Requirements for Employees Engaged in Field Activities Effective date. 75-032 0-90 80 100 STAT. 1692 PUBLIC LAW 99-499— OCT. 17, 1986 and existing standards under the Occupational Safety and Health 29 use 651 note. Act of 1970 found in subpart C of part 1926 of title 29 of the Code of Effective date. Federal Regulations. Such interim final regulations shall take effect upon issuance and shall apply until final regulations become effec- tive under subsection (c). Waste disposal (f) COVERAGE OF CERTAIN StATE AND LoCAL EMPLOYEES. — Not later Safety than 90 days after the promulgation of final regulations under subsection (a), the Administrator shall promulgate standards iden- tical to those promulgated by the Secretary of Labor under subsec- tion (a). Standards promulgated under this subsection shall apply to employees of State and local governments in each State which does not have in effect an approved State plan under section 18 of the 29 use 667. Occupational Safety and Hejdth Act of 1970 providing for standards for the health and safety protection of employees engaged in hazard- ous waste operations. 42 use 9660a. (g) Grant PROGRAM.— (1) Grant purposes. — Grants for the training and education of workers who are or may be engaged in activities related to hazardous waste removal or containment or emergency re- sponse may be made under this subsection. (2) Administration. — Grants under this subsection shall be administered by the National Institute of Environmental Health Sciences. Waste disposal. (3) Grant RECIPIENTS. — Grants shall be awarded to nonprofit organizations which demonstrate experience in implementing and operating worker health and safety training and education programs and demonstrate the ability to reach and involve in training programs target populations of workers who are or will be engaged in hazardous waste removal or containment or ( emergency response operations. SEC. 127. LIABILITY LIMITS FOR OCEAN INCINERATION VESSELS. 42 use 9601. (a) Definition of Incineration Vessel.— Section 101 of CERCLA is amended by adding the following after paragraph (37): "(38) The term 'incineration vessel' means any vessel which carries hazardous substances for the purpose of incineration of such substances, so long as such substances or residues of such substances are on board.". 42 use 9607. (b) Liability— Section 107 of CERCLA is amended as follows: (1) Subsection (aX3) is amended by inserting "or incineration vessel" after "facility". (2) Subsection (aX4) is amended by inserting ", incineration vessels" after "facilities". (3) Subparagraph (A) of subsection (cXl) is amended by insert- ing ", other than an incineration vessel," after "vessel". (4) Subparagraph (B) of subsection (cXD is amended by insert- ing "other than an incineration vessel," after "other vessel,". (5) Subparagraph (D) of subsection (cXD is amended by insert- ing "any incineration vessel or" before "any facility". 42 use 9608. (c) Financial Responsibility.— Section 108(a) of CERCLA is amended as follows: (1) Paragraph (1) is amended by inserting "to cover the liabil- ity prescribed under paragraph (1) of section 107(a) of this Act" after "whichever is greater)"; President of U.S. (2) Add a new paragraph to read as follows: "(4) In addition to the financial responsibility provisions of paragraph (1) of this subsection, the President shall require 81 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1693 additional evidence of financial responsibility for incineration vessels in such amounts, and to cover such liabilities recognized by law, as the President deems appropriate, taking into account the potential risks posed by incineration and transport for incineration, and any other factors deemed relevant.". (d) Savings Clause.— Section 106 of the Marine Protection, Research, and Sanctuaries Act of 1972 is amended by adding the following new subsection at the end thereof: "(g) Savings Clause.— Nothing in this Act shall restrict, affect or modify the rights of any person (1) to seek damages or enforcement of any standard or limitation under State law, including State common law, or (2) to seek damages under other Federal law, including maritime tort law, resulting from noncompliance with any requirement of this Act or any permit under this Act.". (e) Maritime Tort.— Section 107(h) of CERCLA is amended by inserting ", under maritime tort law," after "with this section" and by inserting before the period "or the absence of any physical damage to the proprietary interest of the claimant". TITLE II— MISCELLANEOUS PROVISIONS 33 use 1416. State and local governments. 42 use 9607. 42 use 9641. SEC. 201. POST-CLOSURE LIABILITY PROGRAM STUDY, REPORT TO CON- GRESS, AND SUSPENSION OF LIABILITY TRANSFERS. Subsection (k) of section 107 of CERCLA is amended by adding at 42 USC 9607 the end the following new paragraphs: "(5) Suspension of uabiuty transfer.— Notwithstanding paragraphs (1), (2), (3), and (4) of this subsection and subsection 0*) 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 Con- gress 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, stor- age, and disposal sites after their closure which com- plements 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. 42 use 6901 note. 82 100 STAT. 1694 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 6925. 42 use 6901 note. 42 use 6921. 6991. 42 use 9641. "(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, oper- ate, 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 Sec- retary of the Treasury, and the heads of other appropriate Federal agencies. "(E) (Consideration of options.— In conducting the study under this paragraph, the Comptroller (^neral shall con- sider various mechanisms and combinations of mechanisms to complement the policies set forth in the Hazardous and Solid Waste Amendments of 1984 to serve the purposes set forth in subparagraph (B) and to assure that the current and future costs associated with hazardous waste facilities, including post-closure costs, will be adequately financed and, to the greatest extent possible, borne by the owners and operators of such facUities. Mechanisms to be consid- ered 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 conditicr s for transfer of liability under this subsection, incluciing 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; 83 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1695 "(vii) coinsurance, reinsurance, or pooled-risk insur- ance, whether provided by the private sector or pro- vided 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.". SEC. 202. HAZARDOUS MATERIALS TRANSPORTATION. 42 USC 9656. (a) Regulation Requirement.— Section 306(a) of CERCLA is amended (1) by striking out "within ninety days after the date of enactment of this Act" and inserting in lieu thereof "within 30 days after the enactment of the Superfund Amendments and Reauthor- ization Act of 1986" and (2) by inserting "and regulated" before "as a hazardous material". (b) Conforming Amendment.— Section 306(b) of CERCLA is 42 use 9656. amended by inserting "and regulation" after "prior to the effective date of the listing". SEC. 203. STATE PROCEDURAL REFORM. (a) In General.— Title III of CERCLA is amended by adding the following new section at the end thereof: "SEC. 309. ACTIONS UNDER STATE LAW FOR DAMAGES FROM EXPOSURE 42 USC 9658 TO HAZARDOUS SUBSTANCES. "(a) State Statutes of Limitations for Hazardous Substance Cases.— "(1) Exception to state statutes. — In the case of any action brought under State law for personal injury, or property dam- ages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commence- ment date, such period shall commence at the federally re- quired commencement date in lieu of the date specified in such State statute. "(2) State law generally appucable.— Except as provided in paragraph (1), the statute of limitations established under State law shall apply in all actions brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility. "(3) Actions under section i07. — Nothing in this section shall apply with respect to any cause of action brought under section 107 of this Act. 42 USC 9607. "(b) Definitions. — As used in this section — "(1) Title i terms. — The terms used in this section shall have the same meaning as when used in title I of this Act. 42 use 9601 "(2) Appucable umitations period. — The term 'applicable limitations period' means the period specified in a statute of 84 , 100 STAT. 1696 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 9658 note. 42 use 9631. Post, p. 1774. Post, p. 1774. 26 use 9501. Ante, p. 1642. 42 use 6991. 42 use 6991a. limitations during which a civil action referred to in subsection (aXD may be brought. "(3) Commencement date.— The term 'commencement date' means the date specified in a statute of limitations as the beginning of the applicable limitations period. "(4) Federally required commencement date.— "(A) In general.— Except as provided in subparagraph (B), the term 'federally required commencement date' means the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (aXD were caused or contributed to by the hazardous substance or pollutant or contaminant concerned. "(B) Special rules.— In the case of a minor or incom- petent plaintiff, the term 'federally required commence- ment date' means the later of the date referred to in subparagraph (A) or the following: "(i) In the case of a minor, the date on which the minor reaches the age of majority, as determined by State law, or has a legal representative appointed. "(ii) In the case of an incompetent individual, the date on which such individual becomes competent or has had a legal representative appointed.". (b) Effective Date.— The amendment made by subsection (a) of this section shall take effect with respect to actions brought after December 11, 1980. SEC. 204. CONFORMING AMENDMENT TO FUNDING PROVISIONS. (a) Hazardous Substances Superfund.— Section 221(a) of CERCLA is amended by striking out "Hazardous Substance Re- sponse Trust F'und" and inserting in lieu thereof "Hazardous Sub- stances Superfund". (b) Cross Reference to Funding Provisions.— Section 221(c) of CERCLA is amended to read as follows: "(c) Expenditures From Trust Fund.— Amounts in the Hazard- ous Substances Superfund established under subchapter A of chap- ter 98 of the Internal Revenue Code of 1954 shall be available for expenditure only as provided in section 111 of this Act.". SEC. 205. CLEANUP OF PETROLEUM FROM LEAKING UNDERGROUND STOR- AGE TANKS. (a) Definition of Petroleum.— Section 9001(2XB) of the Solid Waste Disposal Act is amended by striking out all that follows "petroleum" and inserting in lieu thereof a period. Section 9001 of such Act is amended by adding at the end thereof the following: "(8) The term 'petroleum means petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute).". (b) State Inventories.— Section 9002 of the Solid Waste Disposal Act is amended by adding the following new subsection at the end thereof: "(c) State Inventories. —Each State shall make 2 separate inven- tories of all underground storage tanks in such State containing regulated substances. One inventory shall be made with respect to petroleum and one with respect to other regulated substances. In making such inventories, the State shall utilize and aggregate the 85 PUBUC LAW 99-499— OCT. 17, 1986 100 STAT. 1697 data in the notification forms submitted pursuant to subsections (a) and (b) of this section. Each State shall submit such aggregated data to the Administrator not later than 270 days after the enactment of the Superfund Amendments and Reauthorization Act of 1986. . (c) Financial Responsibility.— ^ tj «r . T^ (1) Requirements.— Section 9003(c) of the Solid Waste Dis- posal Act is amended by striking "and" at the end of paragraph (4) striking the period at the end of paragraph (5) and substitut- ing "; and" and by adding the following new paragraph at the end thereof: "(6) requirements for maintaining evidence of financial responsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by sudden and nonsudden accidental^ releases arising from operat- ing an underground storage tank.'*. ^^^„,^, ^ U A X (2) CoNFORBHNG AMENDMENT.— Section 9003(d) of such Act is amended by striking out paragraph (1) and renumbering paragraphs (2) through (5) as paragraphs (1) through (4), resnectivelv (3) Other mitthods.- Section 9003(dXl) of such Act (as redesignated by paragraph (2) of this subsection) is amended by striking out "or'^ after "credit," and by striking out the period at the end thereof and inserting in lieu thereof the followmg: "or any other method satisfactory to the Administrator. . (4) Section 9003(d) of such Act is further amended by adding at the end thereof the following new paragraph: "(5XA) The Administrator, in promulgating financial respon- sibUity regulations under this section, may establish an amount of coverage for particular classes or categories of underground storage tanks containing petroleum which shall satisfy such regulations and which shall not be less than $1,000,000 for each occurrence with an appropriate aggregate requirement. "(B) The Administrator may set amounts lower than the amounts required by subparagraph (A) of this paragraph for underground storage tanks containing petroleum which are at facilities not engaged in petroleum production, refining, or marketing and which are not used to handle substantial quan- tities of petroleum. "(C) In establishing classes and categories for purposes of this paragraph, the Administrator may consider the following factors: "(i) The size, type, location, storage, and handling capac- ity of underground storage tanks in the class or category and the volume of petroleum handled by such tanks. "(ii) The likelihood of release and the potential extent of damage from any release from imderground storage tanks in the class or category. "(iii) The economic impact of the limits on the owners and operators of each such class or category, particularly relat- ing to the small business segment of the petroleum marketing industry. "(iv) The availability of methods of financial responsibil- ity in amounts greater than the amount established by this paragraph. "(v) Such other factors as the Administrator deems pertinent. 42 use 6991b. Regulations. Small business. Marketing. 86 100 STAT. 1698 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 6991c. 42 use 6991b. State and local governments. "(D) The Administrator may suspend enforcement of the financial responsibility requirements for a particular class or category of underground storage tanks or in a particular State, if the Administrator makes a determination that methods of financial responsibility satisfying the requirements of this subsection are not generally available for underground storage tanks in that class or category, and— "(i) steps are being taken to form a risk retention group for such class of tanks; or "(ii) such State is taking steps to establish a fund pursu- ant to section 9004(cXl) of this Act to be submitted as evidence of financial responsibility. A suspension by the Administrator pursuant to this paragraph shall extend for a period not to exceed 180 days. A determina- tion to suspend may be made with respect to the same class or category or for the same State at the end of such period, but only if substantial progress has been made in establishing a risk retention group, or the owners or operators in the class or category demonstrate, and the Administrator finds, that the formation of such a group is not possible and that the State is unable or unwilling to establish such a fund pursuant to clause (ii).". (d) EPA Response Program.— Section 9003 of the Solid Waste Disposal Act is amended by adding after subsection (g) the following new subsection: "(h) EPA Response Program for Petroleum.— "(1) Before regulations.— Before the effective date of regula- tions under subsection (c), the Administrator (or a State pursu- ant to paragraph (7)) is authorized to — "(A) require the owner or operator of an underground storage tank to undertake corrective action with respect to any release of petroleum when the Administrator (or the State) determines that such corrective action will be done properly and promptly by the owner or operator of the underground storage tank from which the release occurs; or "(B) undertake corrective action with respect to any re- lease of petroleum into the environment from an under- ground storaige tank if such action is necessary, in the judgment of the Administrator (or the State), to protect human health and the environment. The corrective action undertaken or required under this para- graph shall be such as may be necessary to protect human health and the environment. The Administrator shall use funds in the Leaking Underground Storage Tank Trust Fund for payment of costs incurred for corrective action under subpara- graph (B), enforcement action under subparagraph (A), and cost recovery under paragraph (6) of this subsection. Subject to the priority requirements of paragraph (3), the Administrator (or the State) shall give priority in undertaking such actions under subparagraph (B) to cases where the Administrator (or the State) cannot identify a solvent owner or operator of the tank who will undertake action properly. "(2) After regulations.— Following the effective date of regulations under subsection (c), all actions or orders of the Administrator (or a State pursuant to paragraph (7)) described in paragraph (1) of this subsection shall be in conformity with such regulations. Following such effective date, the Adminis- 87 PUBUC LAW 99-499— OCT. 17, 1986 100 STAT. 1699 trator (or the State) may undertake corrective action with respect to any release of petroleum into the environment from an underground storage tank only if such action is necessary, in the judgment of the Administrator (or the State), to protect human health and the environment and one or more of the following situations exists: ,.,.««. v "(A) No person can be found, withm 90 days or such shorter period as may be necessary to protect human health and the environment, who is — "(i) an owner or operator of the tank concerned, "(ii) subject to such corrective action regulations, and "(iii) capable of carrying out such corrective action properly. "(B) A situation exists which requires prompt action by the Administrator (or the State) under this paragraph to protect human health and the environment. "(O (Corrective action costs at a facility exceed the amount of coverage required by the Administrator pursu- ant to the provisions of subsections (c) and (dX5) of this section and, considering the class or category of under- ground storage tank from which the release occurred, expenditures from the Leaking Underground Storage Tank Trust Fund are necessary to assure an effective corrective action. /• -i j "(D) The owner or operator of the tank has failed or refused to comply with an order of the Administrator under this subsection or section 9006 or with the order of a State 42 USC 699ie. under this subsection to comply with the corrective action regulations. ^ * , . .. i. / "(3) Priority of corrbctive actions.— The Administrator (or a State pureuant to paragraph (7)) shall give priority in under- taking corrective actions under this subsection, and in issuing ordera requiring owners or operators to undertake such actions, to releases of petroleum from underground storage tanks which poee the greatest threat to human health and the environment. "(4) (CoRRBcnvE action orders.— The Administrator is au- thorized to issue orders to the owner or operator of an under- ground storage tank to carry out subparagraph (A) of paragraph (1) or to carry out r^ulations issued under subsection (cX4). A State acting pursuant to paragraph (7) of this subsection is authorized to carry out subparagraph (A) of paragraph (1) only until the State's program is approved by the Administrator under section 9004 of this subtitle. Such orders shall be issued and enforced in the same manner and subject to the same requirements as orders under section 9006. ''(5) Allowable corrective actions.— The corrective actions undertaken by the Administrator (or a State pursuant to para- graph a)) under paragraph (1) or (2) may include temporary or permanent relocation of residents and alternative household water supplies. In connection with the performance of any corrective action under paragraph (1) or (2), the Administrator may undertake an exposure assessment as defined in paragraph (10) of this subsection or provide for such an assessment in a cooperative agreement with a State pursuant to paragraph (7) of this subsection. The costs of any such assessment may be treated as corrective action for purposes of paragraph (6), relat- ing to cost recovery. 42 USC 6991c. 88 100 STAT. 1700 PUBLIC LAW 99-499-OCT. 17. 1986 83 use 1821. I Contracts. "(6) Recovery or costs.— "(A) In general.— Whenever costs have been incurred by the Administrator, or by a State pursuant to paragraph (7), for undertaking corrective action or enforcement action with respect to the release of petroleum from an under- ground storage tank, the owner or operator of such tank shall be liable to the Administrator or the State for such costs. The liability under this paragraph shall be construed to be the standard of liability which obtains under section 311 of the Federal Water Pollution Control Act. "(B) Recovery.— In determining the equities for seeking the recovery of costs under subparagraph (A), the Adminis- trator (or a State pursuant to paragraph (7) of this subsec- tion) may consider the amount of financial responsibility required to be maintained under subsections (c) and (dX5) of this section and the factors considered in establishing such amount under subsection (dX5). "(C) Effect on uability.— "(i) No TRANSFERS OF UABiUTY.— No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or opera- tor of any underground storage tank or from any person who may be liable for a release or threat of release under this subsection, to any other person the liability imposed under this subsection. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section. "(ii) No BAR TO CAUSE OF ACTION.— Nothing in this subsection, including the provisions of clause (i) of this subparagraph, shall bar a cause of action that an owner or operator or any other person subject to liability under this section, or a guarantor, has or would have, by reason of subrogation or otherwise against any person. "(D) Faciuty.— For purposes of this paragraph, the term 'facility' means, with respect to any owner or operator, all underground storage tanks used for the storage of petro- leum which are owned or operated by such owner or opera- tor and located on a single parcel of property (or on any contiguous or adjacent property). *(7) State authorities.— "(A) General.— A State may exercise the authorities in paragraphs (1) and (2) of this subsection, subject to the terms and conditions of paragraphs (3), (5), (9), (10), and (11), and including the authorities of paragraphs (4), (6), and (8) of this subsection if— "(i) the Administrator determines that the State has the capabilities to carry out effective corrective actions and enforcement activities; and "(ii) the Administrator enters into a cooperative agreement with the State setting out the actions to be undertaken by the State. The Administrator may provide funds from the Leaking Underground Storage Tank Trust Fund for the reasonable costs of the State's actions under the cooperative agreement. 89 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1701 "(B) Cost share.— Following the effective date of the regulations under subsection (c) of this section, the State shall pay 10 per centum of the cost of corrective actions undertaken either by the Administrator or by the State under a cooperative agreement, except that the Adminis- trator may take corrective action at a facility where imme- diate action is necessary to respond to an imminent and substantial endangerment to human health or the environ- ^ ment if the State fails to pay the cost share. "(8) Emergency procurement powers.— Notwithstanding any other provision of law, the Administrator may authorize the use of such emergency procurement powers as he deems necessary. "(9) Definition of owner. — As used in this subsection, the term 'owner' does not include any person who, without partici- pating in the management of an underground storage tank and otherwise not engaged in petroleum production, refining, and marketing, holds indicia of ownership primarily to protect the owner's security interest in the tank. "(10) Definition of exposure assessment.— As used in this subsection, the term 'exposure assessment' means an assess- ment to determine the extent of exposure of, or potential for exposure of, individuals to petroleum from a release from an underground storage tank based on such factors as the nature and extent of contamination and the existence of or potential for pathways of human exposure (including ground or surface water contamination, air emissions, and food chain contamina- tion), the size of the community within the likely pathways of exposure, and the comparison of expected human exposure levels to the short-term and long-term health effects associated with identified contaminants and any available recommended exposure or tolerance limits for such contaminants. Such assess- ment shall not delay corrective action to abate immediate haz- ards or reduce exposure. "(11) Faciuties without financial responsibility. — At any facility where the owner or operator has failed to maintain evidence of financial responsibility in amounts at least equal to the amounts established by subsection (dX5XA) of this section (or a lesser amount if such amount is applicable to such facility as a result of subsection (dX5XB) of this section) for whatever reason the Administrator shall expend no monies from the Leaking Underground Storage Tank Trust Fund to clean up releases at such facility pursuant to the provisions of paragraph (1) or (2) of this subsection. At such facilities the Administrator shall use the authorities provided in subparagraph (A) of paragraph (1) and paragraph (4) of this subsection and section 9006 of this subtitle to order corrective action to clean up such releases. States acting pursuant to paragraph (7) of this subsection shall use the authorities provided in subparagraph (A) of paragraph (1) and paragraph (4) of this subsection to order corrective action to clean up such releases. Notwithstanding the provisions of this paragraph, the Administrator may use monies from the fund to take the corrective actions authorized by paragraph (5) of this subsection to protect human health at such facilities and shall seek full recovery of the costs of all such actions pursuant to the provisions of paragraph (6XA) of this subsection and without consideration of the factors in paragraph (6XB) of this 42 use 6991e. 90 100 STAT. 1702 PUBLIC LAW 99-499— OCT. 17, 1986 *i subsection. Nothing in this paragraph shall prevent the Administrator (or a State pursuant to paragraph (7) of this subsection) from taking corrective action at a facility where there is no solvent owner or operator or where immediate action is necessary to respond to an imminent and substantial endangerment of human health or the environment.". 42 use 6991c. (e) FINANCIAL ReSPONSIBIUTY IN StATE PROGRAMS. — (1) Section 9004(cXl) of the Solid Waste Disposal Act is amended by striking out "financed by fees on tank owners and operators and". (2) Section 9004(cX2) of the Solid Waste Disposal Act is amended by striking out "or" after "credit," in the first sen- tence and by striking out the period at the end thereof and inserting in lieu thereof the following: "or any other method satisfactory to the Administrator.". Such section is further amended by adding after the word "terms" in the second sen- tence the following: "including the amount of coverage required for various classes and categories of underground storage tanks Ante, p. 1697. pursuant to section 9003(d)(5)". 42 use 6991d. (0 AUTHORITY TO EnTER FOR CORRECTIVE ACTIONS. — (1) Section 9005(a) of the Solid Waste Disposal Act is amended by inserting the words "taking any corrective action" after the word "study", inserting the words "acting pursuant to subsec- tion (hX7) of section 9003 or" after the words "or representative of a State", striking the word "and" before the words "permit such officer", and inserting the words "and permit such officer to have access for corrective action" after the words "relating to such tanks" in the first sentence thereof. Such section is further amended by inserting the words "taking corrective action," after the word "study," in the second sentence thereof. (2) Section 9005(a) of the Solid Waste Disposal Act is amended by striking the word "and" at the end of paragraph (2), striking out the period at the end of paragraph (3) and inserting "; and", and adding the following new paragraph at the end thereof— "(4) to take corrective action.". (3) Section 9005 of the Solid Waste Disposal Act is amended by changing the heading thereof to read as follows — "inspections, monitoring, testing and CORRECTIVE ACTION". (g) Coordination With Other Laws. — Section 9008 of the Solid Waste Disposal Act is amended to read as follows: "state authority 42 use 699lg. "Sec 9008. Nothing in this subtitle shall preclude or deny any right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance respecting underground storage tanks that is more stringent than a regulation, requirement, or standard of performance in effect under this sub- title or to impose any additional liability with respect to the release of regulated substances within such State or political subdivision". 42 use 6991b (h) POLLUTION LlABIUTY INSURANCE.— "ote (1) Study. — The Comptroller General shall conduct a study of the availability of pollution liability insurance, leak insurance, and contamination insurance for owners and operators of petro- leum storage and distribution facilities. The study shall assess 91 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1703 Vessels. 33 use 1251 note. the current and projected extent to which private insurance can contribute to the financial responsibihty of owners and opera- tors of underground storage tanks and the ability of owners and operators of underground storage tanks to maintain financial responsibility through other methods. The study shall consider the experience of owners and operators of marine vessels in getting insurance for their liabilities under the Federal Water Pollution Control Act and the operation of the Water Quality Insurance Syndicate. (2) Report.— The Comptroller General shall report the find- ings under this subsection to the Congress within 15 months after the enactment of this subsection. Such report shall include recommendations for legislative or administrative changes that will enable owners and operators of underground storage tanks to maintain financial responsibility sufficient to provide all clean-up costs and damages that may result from reasonably foreseeable releases and events, (i) Criminal Penalties Relating to Used Oil.— Subtitle C of the 42 USC 6928 Solid Waste Disposal Act is amended as follows: (1) In paragraphs (4) and (5) of section 3008(d) after "hazard- ous waste" insert "or any used oil not identified or listed as a hazardous waste under this subtitle". (2) Delete "accompanied by a manifest; ; or" in paragraph (5) and insert "accompanied by a manifest;". (3) Insert "; or" after paragraph (6). (4) Add the following new paragraph after paragraph (6): "(7) knowingly stores, treats, transports, or causes to be trans- ported, disposes of, or otherwise handles any used oil not identi- fied or listed as a hazardous waste under subtitle C of the Solid Waste Disposal Act— "(A) in knowing violation of any material condition or requirement of a j)ermit under this subtitle C; or "(B) in knowing violation of any material condition or requirement of any applicable regulations or standards under this Act;". (5) In section 3008(e): (A) Insert "or used oil not identified or listed as a hazard- ous waste under this subtitle" immediately after "this subtitle". (B) Strike "or" immediately before "(6)". (C) Insert ", or (7)" immediately after "(6)". (j) State Programs for Used Oil.— Section 3006 of the Solid Waste Disposal Act is amended by adding the following new subsec- tion at the end thereof: "(h) State Programs for Used Oil.— In the case of used oil which is not listed or identified under this subtitle as a hazardous waste but which is regulated under section 3014, the provisions of this section regarding State programs shall apply in the same manner and to the same extent as such provisions apply to hazardous waste identified or listed under this subtitle.". SEC. 206. CITIZENS SUITS. Title III of CERCLA is amended by adding the following new section after section 309: 42 USC 6921. 42 USC 6926. 42 USC 6935. 92 100 STAT. 1704 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 9659. Ante, -p. 1650. District of Columbia. Law enforcement and crime. President of U.S. Regulations. 42 use 6901 note. "SEC. 310. CITIZENS SUITS. "(a) Authority to Bring Civil Actions.— Except as provided in subsections (d) and (e) of this section and in section 413(h) (relating to timing of judicial review), any person may commence a civil action on his own behalf — "(1) against any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condi- tion, requirement, or order which has become effective pursuant to this Act (including any provision of an agreement under section 120, relating to Federal facilities); or "(2) against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency and the Administrator of the ATSDR) where there is alleged a failure of the President or of such other officer to perform any act or duty under this Act, including an act or duty under section 120 (relating to Federal facilities), which is not discretionary with the President or such other officer. Paragraph (2) shall not apply to any act or duty under the provisions of section 311 (relating to research, development, and demonstration). "(b) Venue. — "(1) Actions under subsection (an it.— Any action under subsection (a)(1) shall be brought in the district court for the district in which the alleged violation occurred. "(2) Actions under subsection (aK2).— Any action brought under subsection (a)(2) may be brought in the United States District Court for the District of Columbia. "(c) Relief. — The district court shall have jurisdiction in actions brought under subsection (a)(1) to enforce the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 120), to order such action as may be necessary to correct the violation, and to impose any civil penalty provided for the violation. The district court shall have jurisdiction in actions brought under subsection (a)(2) to order the President or other officer to perform the act or duty concerned. "(d) Rules Applicable to Subsection (a)(1) Actions. — "(1) Notice. — No action may be commenced under subsection (a)(1) of this section before 60 days after the plaintiff has given notice of the violation to each of the following: "(A) The President. "(B) The State in which the alleged violation occurs. "(C) Any alleged violator of the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 120). Notice under this paragraph shall be given in such manner as the President shall prescribe by regulation. "(2) Diligent prosecution.— No action may be commenced under paragraph (1) of subsection (a) if the President has com- menced and is diligently prosecuting an action under this Act, or under the Solid Waste Disposal Act to require compliance with the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under sec- tion 120). 93 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1705 "(e) Rules Appucable to Subsection (aX2) Actions.— No action may be commenced under paragraph (2) of subsection (a) before the 60th day following the date on which the plaintiff gives notice to the Administrator or other department, agency, or instrumentality that the plaintiff will commence such action. Notice under this subsec- tion shall be given in such manner as the President shall prescribe by regulation. "(0 Costs.— The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or the substantially prevailing party whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure. "(g) Intervention. — In any action under this section, the United States or the State, or both, if not a party may intervene as a matter of right. For other provisions regarding intervention, see section 113. "(h) Other Rights.— This Act does not affect or otherwise impair the rights of any person under Federal, State, or common law, except with respect to the timing of review as provided in section 113(h) or as otherwise provided in section 309 (relating to actions under State law). , „ , , "(i) Definitions.— The terms used in this section shall have the same meanings as when used in title I.". SEC. 207. INDIAN TRIBES. (a) Definition.— For definition of Indian tribe, see the amend- ments made by section 101 of this Act. (b) Future Maintenance and Cost Sharing.— Section 104(cX3) of CERCLA is amended by adding at the end thereof the following: "In the case of remedial action to be taken on land or water held by an Indian tribe, held by the United States in trust for Indians, held by a member of an Indian tribe (if such land or water is subject to a trust restriction on alienation), or otherwise within the borders of an Indian reservation, the requirements of this paragraph for assur- ances regarding future maintenance and cost-sharing shall not apply, and the President shall provide the assurance required by this paragraph regarding the availability of a hazardous waste disposal facility.". (c) Liability.— Section 107 of CERCLA is amended as follows: (1) In subsection (a) by inserting "or an Indian tribe" after "State"; (2) In subsection (f): (A) Insert after "State" the third time that word appears the following: "and to any Indian tribe for natural re- sources belonging to, managed by, controlled by, or ap- pertaining to such tribe, or held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust restriction on alienation". (B) Insert "or Indian tribe" after "State" the fourth time that word appears. (C) Add before the period at the end of the first sentence the following: ", so long as, in the case of damages to an Indian tribe occurring pursuant to a Federal permit or license, the issuance of that permit or license was not President of U.S. Regulations. 18 use app. Ante, p. 1650. 42 use 9601. 42 use 9604. 42 use 9607. 94 100 STAT. 1706 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 9611. 42 use 9626. 42 use 9603. 42 use 9604. Ante, p. 1636; 42 use 9605. President of U.S. Health and medical care. Real property. President of U.S. Reports. inconsistent with the fiduciary duty of the United States with respect to such Indian tribe". (D) Insert "or the Indian tribe" after "State government". (3) In subsection (i) insert "or Indian tribe" after "State" the first time it appears. (4) In subsection (j) insert "or Indian tribe" after "State" the first time it appears. (d) Natural Resources Claims, Delegation, Etc.— Section 111 of CERCLA is amended as follows: (1) In subsection (b), insert before the period at the end thereof the following: ", or by any Indian tribe or by the United States acting on behalf of any Indian tribe for natural resources belonging to, managed by, controlled by, or appertaining to such tribe, or held in trust for the benefit of such tribe, or l^longing to a member of such tribe if such resources are subject to a trust restriction on alienation"; (2) In subsection (cX2) insert "or Indian tribe" after "State". (3) In subsection (f) insert "or Indian tribe" after "State"; and (4) In subsection (i) insert after "State," the following: "and by the governing body of any Indian tribe having sustained damage to natural resources belonging to, managed by, con- trolled by, or appertaining to such tribe, or held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust restriction on alienation,". (e) Treatment of Tribes Generally.— Title I of CERCLA is amended by adding the following new section after section 125: "SEC. 126. INDIAN TRIBES. "(a) Treatment Generally.— The governing body of an Indian tribe shall be afforded substantially the same treatment as a State with respect to the provisions of section 103(a) (regarding notifica- tion of releases), section 104(c)(2) (regarding consultation on re- medial actions), section 104(e) (regarding access to information), section 104(i) (regarding health authorities) and section 105 (regard- ing roles and responsibilities under the national contingency plan and submittal of priorities for remedial action, but not including the provision regarding the inclusion of at least one facility per State on the National Priorities List). "(b) Community Relocation— Should the President determine that proper remedial action is the permanent relocation of tribal members away from a contaminated site because it is cost effective and necessary to protect their health and welfare, such finding must be concurred in by the affected tribal government before relocation shall occur. The President, in cooperation with the Secretary of the Interior, shall also assure that all benefits of the relocation program are provided to the affected tribe and that alternative land of equivalent value is available and satisfactory to the tribe. Any lands acquired for relocation of tribal members shall be held in trust by the United States for the benefit of the tribe. "(c) Study. — The President shall conduct a survey, in consultation with the Indian tribes, to determine the extent of hazardous waste sites on Indian larids. Such survey shall be included within a report which shall make recommendations on the program needs of tribes under this Act, with particular emphasis on how tribal participation in the administration of such programs can be maximized. Such report shall be submitted to Congress along with the President's budget request for fiscal year 1988. 95 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1707 "(d) Limitation. — Notwithstanding any other provision of this Act, no action under this Act by an Indian tribe shall be barred until the later of the following: "(1) The applicable period of limitations has expired. "(2) 2 years after the United States, in its capacity as trustee for the tribe, gives written notice to the governing body of the tribe that it will not present a claim or commence an action on behalf of the tribe or fails to present a claim or commence an action within the time limitations specified in this Act.". SEC. 208. INSURABILITY STUDY. Section 301 of CERCLA is amended by adding the following new subsection at the end thereof: "(g) Insurabiuty Study.— "(1) Study by comptroller general. — The Comptroller Gen- eral of the United States, in consultation with the persons described in paragraph (2), shall undertake a study to determine the insurability, and effects on the standard of care, of the liabilitv of each of the following: (A) Persons who generate hazardous substances: liability for costs and damages under this Act. "(B) Persons who own or operate facilities: liability for costs and damages under this Act. "(C) Persons liable for injury to persons or property causeid by the release of hazardous substances into the environment. "(2) Consultation.— In conducting the study under this subsection, the Comptroller General shall consult with the following: "(A) Representatives of the Administrator. "(B) Representatives of persons described in subpara- graphs (A) through (C) of the preceding paragraph. "(C) Representatives (i) of groups or organizations com- prised generally of persons adversely affected by releases or threatened releases of hazardous substances and (ii) of groups organized for protecting the interests of consumers. "(D) Representatives of property and casualty insurers. "(E) Representatives of reinsurers. "(F) Persons responsible for the regulation of insurance at the State level. "(3) Items evaluated. — The study under this section shall include, among other matters, an evaluation of the following: "(A) Current economic conditions in, and the future outlook for, the commercial market for insurance and reinsurance. "(B) Current trends in statutory and common law remedies. "(C) The impact of p>ossible changes in traditional stand- ards of liability, proof, evidence, and damages on existing statutory and common law remedies. "(D) The effect of the standard of liability and extent of the persons upon whom it is imposed under this Act on the protection of human health and the environment and on the availability, underwriting, and pricing of insurance coverage. "(E) Current trends, if any, in the judicial interpretation and construction of applicable insurance contracts, together Claims. Post 42 5t, p. use 1726. 9651. 96 100 STAT. 1708 PUBLIC LAW 99-499— OCT. 17, 1986 Reports. 42 use note. Schools and colleges. E^ducation. 42 use 9660. with the degree to which amendments in the language of such contracts and the description of the risks assumed, could affect such trends. "(F) The frequency and severity of a representative sample of claims closed during the calendar year imme- diately preceding the enactment of this subsection. "(G) Impediments to the acquisition of insurance or other means of obtaining liability coverage other than those re- ferred to in the preceding subparagraphs. "(H) The effects of the standards of liability and financial responsibility requirements imposed pursuant to this Act on the cost of, and incentives for, developing and dem- onstrating alternative and innovative treatment tech- nologies, as well as waste generation minimization. "(4) Submission.— The Comptroller General shall submit a report on the results of the study to Congress with appropriate recommendations within 12 months after the enactment of this subsection.". SEC. 209. RESEARCH, DEVELOPMENT, AND DEMONSTRATION. (a) Purpose. — The purposes of this section are as follows: (1) To establish a comprehensive and coordinated Federal program of research, development, demonstration, and training for the purpose of promoting the development of alternative and innovative treatment technologies that can be used in response actions under the CERCLA program, to provide incentives for the development and use of such technologies, and to improve the scientific capability to Eissess, detect and evaluate the effects on and risks to human health from hazardous substances. (2) To establish a basic university research and education program within the Department of Health and Human Services and a research, demonstration, and training program within the Environmental Protection Agency. (3) To reserve certain funds from the Hazardous Substance Trust Fund to support a basic research program within the Department of Health and Human Services, and an applied and developmental research program within the Environmental Protection Agency. (4) To enhance the Environmental Protection Agency's in- ternal research capabilities related to CERCLA activities, including site assessment and technology evaluation. (5) To provide incentives for the development of alternative and innovative treatment technologies in a manner that supple- ments or coordinates with, but does not compete with or dupli- cate, private sector development of such technologies. (b) Amendment of CERCLA.— Title III of CERCLA is amended by adding the following new section at the end thereof: "SEC. 311. RESEARCH. DEVELOPMENT, AND DEMONSTRATION. "(a) Hazardous Substance Research and Training.— "(1) Authorities of secretary.— The Secretary of Health and Human Services (hereinafter in this subsection referred to as the Secretary), in consultation with the Administrator, shall establish and support a basic research and training program (through grants, cooperative agreements, and contracts) consist- ing of the following: 97 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1709 "(A) Basic research (including epidemiologic and ecologic studies) which may include each of the following: "(i) Advanced techniques for the detection, assess- ment, and evaluation of the effects on human health of hazardous substances. "(ii) Methods to assess the risks to human health presented by hazardous substances. "(iii) Methods and technologies to detect hazardous substances in the environment and basic biological, chemical, and physical methods to reduce the amount and toxicity of hazardous substances. '(B) Training, which may include each of the following: "(i) Short courses and continuing education for State and local health and environment agency personnel and other personnel engaged in the handling of hazard- ous substances, in the management of facilities at which hazardous substances are located, and in the evaluation of the hazards to human health presented by such facilities. "(ii) Graduate or advanced training in environmental and occupational health and safety and in the public health and engineering aspects of hazardous waste control. "(iii) Graduate training in the geosciences, including hydrogeology, geological engineering, geophysics, geo- chemistry, and related fields necessary to meet profes- sional personnel needs in the public and private sectors and to effectuate the purposes of this Act. "(2) Director of niehs.— The Director of the National In- stitute for Environmental Health Sciences shall cooperate fully with the relevant Federal agencies referred to in subparagraph (A) of paragraph (5) in carrying out the purposes of this section. "(3) Recipients of grants, etc.— A grant, cooperative agree- ment, or contract may be made or entered into under paragraph (1) with an accredited institution of higher education. The institution may carry out the research or training under the grant, cooperative agreement, or contract through contracts, including contracts with any of the following: "(A) Generators of hazardous wastes. "(B) Persons involved in the detection, assessment, evaluation, and treatment of hazardous substances. "(C) Owners and operators of facilities at which hazard- ous substances are located. "(D) State and local governments. "(4) Procedures.— In making grants and entering into co- operative agreements and contracts under this subsection, the Secretary shall act through the Director of the National In- stitute for Environmental Health Sciences. In considering the allocation of funds for training purposes, the Director shall ensure that at least one grant, cooperative agreement, or con- tract shall be awarded for training described in each of clauses (i), (ii), and (iii) of paragraph (IXB). Where applicable, the Direc- tor may choose to operate training activities in cooperation with the Director of the National Institute for Occupational Safety and Health. The procedures applicable to grants and contracts under title IV of the Public Health Service Act shall be followed under this subsection. Grants. Contracts. 42 use 281. 98 100 STAT. 1710 PUBLIC LAW 99-499— CXrr. 17, 1986 Science and technology. I Heeilth and medical care. ^\ 26 use 501. 42 use 9604. "(5) Advisory council. — To assist in the implementation of this subsection and to aid in the coordination of research and demonstration and training activities funded from the Fund under this section, the Secretary shall appoint an advisory council (hereinafter in this subsection referred to as the 'Ad- visory Council') which shall consist of representatives of the following: "(A) The relevant Federal agencies. "(B) The chemical industry. "(C) The toxic waste management industry. "(D) Institutions of higher education. "(E) State and local health and environmental agencies. "(F) The general public. "(6) Planning. — Within nine months after the date of the enactment of this subsection, the Secretary, acting through the Director of the National Institute for Environmental Health Sciences, shall issue a plan for the implementation of paragraph (1). The plan shall include priorities for actions under para- graph (1) and include research and training relevant to sci- entific and technological issues resulting from site specific hazardous substance response experience. The Secretary shall, to the msiximum extent practicable, take appropriate steps to coordinate program activities under this plan with the activities of other Federal agencies in order to avoid duplication of effort. The plan shall be consistent with the need for the development of new technologies for meeting the goals of response actions in accordance with the provisions of this Act. The Advisory Coun- cil shall be provided an opportunity to review and comnient on the plan and priorities and assist appropriate coordination among the relevant Federal agencies referred to in subpara- graph (A) of paragraph (5). "(b) Alternative or Innovative Treatment Technology Re- search AND Demonstration Program. — "(1) Estabushment.— The Administrator is authorized and directed to carry out a program of research, evaluation, testing, development, and demonstration of alternative or innovative treatment technologies (hereinafter in this subsection referred to as the 'program') which may be utilized in response actions to achieve more permanent protection of human health and wel- fare and the environment. "(2) Administration.— The program shall be administered by the Administrator, acting through an office of technology dem- onstration and shall be coordinated with programs carried out by the Office of Solid Waste and Emergency Response and the Office of Research and Development. "(3) Contracts and grants.— In carrying out the program, the Administrator is authorized to enter into contracts and cooperative agreements with, and make grants to, persons, public entities, and nonprofit private entities which are exempt from tax under section 501(cX3) of the Internal Revenue Code of 1954. The Administrator shall, to the maximum extent possible, enter into appropriate cost sharing arrangements under this subsection. "(4) Use of sites.— In carrying out the program, the Adminis- trator may arrange for the use of sites at which a response niay be undertaken under section 104 for the purposes of carrying out research, testing, evaluation, development, and demonstra- 99 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1711 tion projects. Each such proiect shall be carried out under such Health and terms and conditions as the Administrator shall require to medical care. assure the protection of human health and the environment and to assure adequate control by the Administrator of the research, testing, evaluation, development, and demonstration activities at the site. "(5) Demonstration assistance.— "(A) Program components.— The demonstration assist- ance program shall include the following: "(i) The publication of a solicitation and the evalua- tion of applications for demonstration projects utilizing alternative or innovative technologies. "(ii) The selection of sites which are suitable for the testing and evaluation of innovative technologies. "(iii) The development of detailed plans for innova- tive technology demonstration projects. "(iv) The supervision of such demonstration projects and the providing of quality assurance for data obtained. "(v) The evaluation of the results of alternative innovative technology demonstration projects and the determination of whether or not the technologies used are effective and feasible. "(B) Soucitation.— Within 90 days after the date of the enactment of this section, and no less often than once every 12 months thereafter, the Administrator shall publish a solicitation for innovative or alternative technologies at a stage of development suitable for full-scale demonstrations at sites at which a response action may be undertaken under section 104. The purpose of any such project shall be 42 USC 9604 to demonstrate the use of an alternative or innovative treatment technology with respect to hazardous substances or pollutants or contaminants which are located at the site or which are to be removed from the site. The solicitation notice shall prescribe information to be included in the application, including technical and economic data derived from the applicant's own research and development efforts, and other information sufficient to permit the Adminis- trator to assess the technology's potential and the types of remedial action to which it may be applicable. "(C) Appucations.— Any j)erson and any public or pri- vate nonprofit entity may submit an application to the Administrator in response to the solicitation. The applica- tion shall contain a proposed demonstration plan setting forth how and when the project is to be carried out and such other information as the Administrator may require. "(D) Project selection. — In selecting technologies to be demonstrated, the Administrator shall fully review the applications submitted and shall consider at least the cri- teria specified in paragraph (7). The Administrator shall select or refuse to select a project for demonstration under this subsection within 90 days of receiving the completed application for such project. In the case of a refusal to select the project, the Administrator shall notify the applicant within such 90-day period of the reasons for his refusal. "(E) Site selection.— The Administrator shall propose 10 sites at which a response may be undertaken under section 100 100 STAT. 1712 PUBLIC LAW 99-499— OCT. 17, 1986 42 usg.9604: Contracts. Contracts. 42 use 9604. Reports. 104 to be the location of any demonstration projeet-under this subsection within 60 days after the close of the public comment period. After an opportunity for notice and public comment, the Administrator shall select such sites and projects. In selecting any such site, the Administrator shall take into account the applicant's technical data and pref- erences either for onsite operation or for utilizing the site as a source of hazardous substances or pollutants or contaminants to be treated offsite. "(F) Demonstration plan. — Within 60 days after the selection of the site under this paragraph to be the location of a demonstration project, the Administrator shall estab- lish a final demonstration plan for the project, based upon the demonstration plan contained in the application for the project. Such plan shall clearly set forth how and when the demonstration project will be carried out. "(G) Supervision and testing. — Each demonstration project under this subsection shall be performed by the applicant, or by a person satisfactory to the applicant, under the supervision of the Administrator. The Adminis- trator shall enter into a written agreement with each ap- plicant granting the Administrator the responsibility and authority for testing procedures, quality control, monitor- ing, and other measurements necessary to determine and evaluate the results of the demonstration project. The Administrator may pay the costs of testing, monitoring, quality control, and other measurements required by the Administrator to determine and evaluate the results of the demonstration project, and the limitations established by subparagraph (J) shall not apply to such costs. "(H) Project completion. — Each demonstration project under this subsection shall be completed within such time as is established in the demonstration plan. "(I) Extensions. — The Administrator may extend any deadline established under this paragraph by mutual agree ment with the applicant concerned. "(J) Funding restrictions. — The Administrator shall not provide any Federal assistance for any part of a full-scale field demonstration project under this subsection to any applicant unless such applicant can demonstrate that it cannot obtain appropriate private financing on reasonable terms and conditions sufficient to carry out such dem- onstration project without such Federal assistance. The total Federal funds for any full-scale field demonstration project under this subsection shall not exceed 50 percent of the total cost of such project estimated at the time of the award of such assistance. The Administrator shall not expend more than $10,000,000 for assistance under the program in any fiscal year and shall not expend more than $3,000,000 for any single project. "(6) Field demonstrations.— In carrying out the program, the Administrator shall initiate or cause to be initiated at least 10 field demonstration projects of alternative or innovative treatment technologies at sites at which a response may be undertaken under section 104, in fiscal year 1987 and each of the succeeding three fiscal years. If the Administrator deter- mines that 10 field demonstration projects under this subsection 101 PUBLIC LAW 99-499-OCT. 17, 1986 100 STAT. 1713 cannot be initiated consistent with the criteria set forth in paragraph (7) in any of such fiscal years, the Administrator shall transmit to the appropriate committees of Congress a report explaining the reasons for his inability to conduct such demonstration projects. , , . . , j ^ i. j "(7) Criteria.— In selecting technologies to be demonstrated under this subsection, the Administrator shall, consistent with the protection of human health and the environment, consider each of the following criteria: "(A) The potential for contributing to solutions to those waste problems which pose the greatest threat to human health, which cannot be adequately controlled under present technologies, or which otherwise pose significant management difficulties. "(B) The availability of technologies which have been sufficiently developed for field demonstration and which are likely to be cost-effective and reliable. "(C) The availability and suitability of sites for dem- onstrating such technologies, taking into account the phys- ical, biological, chemical, and geological characteristics of the sites, the extent and t)rpe of contamination found at the site, and the capability to conduct demonstration projects in such a manner as to assure the protection of human health and the environment. "(D) The likelihood that the data to be generated from the demonstration project at the site will be applicable to other sites. "(8) Technology transfer.— In carrying out the program, the Administrator shall conduct a technology transfer program including the development, collection, evaluation, coordination, and dissemination of information relating to the utilization of alternative or innovative treatment technologies for response actions. The Administrator shall establish and maintain a central reference library for such information. The information maintained by the Administrator shall be made available to the public, subject to the provisions of section 552 of title 5 of the United States Code and section 1905 of title 18 of the United States Code, and to other Government agencies in a manner that will facilitate its dissemination; except, that upon a show- ing satisfactory to the Administrator by any person that any information or portion thereof obtained under this subsection by the Administrator directly or indirectly from such person, would, if made public, divulge — "(A) trade secrets; or "(B) other proprietary information of such person, the Administrator shall not disclose such information and disclosure thereof shall be punishable under section 1905 of title 18 of the United States Code. This subsection is not authority to withhold information from (Congress or any committee of (in- gress upon the request of the chairman of such committee. "(9) Training.— The Administrator is authorized and directed to carry out, through the Office of Technology Demonstration, a program of training and an evaluation of training needs for each of the following: . , , „. "(A) Training in the procedures for the handlmg and removal of hazardous substances for employees who handle hazardous substances. Health and medical care. Public information. Classified information. Law enforcement and crime. 102 100 STAT. 1714 PUBLIC LAW 99-499--OCT. 17, 1986 Grants. Contracts. Health and medical care. Grants. "(B) Training in the management of facilities at which hazardous substances are located and in the evaluation of the hazards to human health presented by such facilities for State and local health and environment agency personnel. "(10) Definition.— For purposes of this subsection, the term 'alternative or innovative treatment technol(^8s' means those technologies, including proprietary or patented methods, which permanently alter the composition of hazardous waste through chemical, biological, or physical means so as to significantly reduce the toxicity, mobility, or volume (or any combination thereof) of the hazardous waste or contaminated matenals being treated. The term also includes technologies that characterize or assess the extent of contamination, the chemical and physical character of the contaminants, and the stresses impeded by the contaminants on complex ecosystems at sites. "(c) Hazardous Substance Research.— The Administrator mny conduct and support, through grants, cooperative agreements, and contracts, research with respect to the detection, assessment, and evaluation of the effects on and risks to human health of hazardous substances and detection of hazardous substances in the environ- ment. The Administrator shall coordinate such research w^th the Secretary of Health and Human Services, acting through the ad- visory council established under this section, in order to avoid duplication of effort. (d) Uniyersity Hazardous Substance Research Centers.— "(1) Grant program —The Administrator shall make grants to institutions of higher learning to establish and operate not fewer than 5 hazardous substance research centers in the United States. In canying out the progr«mi under this subsec- tion, the Administrator should seek to have established and operated 10 hazardous substance research centers in the United States. "(2) Responsibilities of centers. — The responsibilities of . sach hazardous substance research center established under this subsection shall include, but not be limited to, the conduct of research and training relating to the manufacture, use, transportation, disposal, and management of hazardo-:is sub- stances and publication and dissemination of the results of such research. "(3) Appucations.— Any institution of higher learning in- terested in receiving a grant under this subsection shall submit to the Administrator an application in such form and contain- ing such information as the Administrator may require by regulation. ^'(4) Selection criteria.— The Administrator shall select recipients of grants under this subsection on the basis of the following criteria: "(A) The hazardous substance research center shall be located in a State vrhich is representative of the naeds of the region in which such State is located for improved hazardous waste management. "(B) The grant recipient shall be located in an aiea which has experienced problems with hazardous .substance management. "(C) There is available to the grant recipient for carrying out this subsection demonstrated research resources. 103 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1715 "(D) The capability of the grant recipient to provide leadership in making national and regional contributions to the solution of both long-range and immediate hazardous substance management problems. "(E) The grant recipient shall make a commitment to support ongoing hazardous substance research programs with budgeted institutional funds of at least $100,000 per year. "(F) The grant recipient shall have an interdisciplinary staff with demonstrated expertise in hazardous substance management and research. "(G) The grant recipient shall have a demonstrated abil- ity to disseminate results of hazardous substance research and educational programs through an interdisciplinary continuing education program. "(H) The projects which the grant recipient proposes to carry out under the grant are necessary and appropriate. "(5) Maintenance of effort.— No grant may be made under this subsection in any fiscal year unless the recipient of such grant enters into such agreements with the Administrator as the Administrator may require to ensure that such recipient will maintain its aggregate expenditures from all other sources for establishing and operating a regional hazardous substance research center and related research activities at or above the average level of such expenditures in its 2 fiscal years preceding the date of the enactment of this subsection. "(6) Federal share.— The Federal share of a grant under this subsection shall not exceed 80 percent of the costs of establish- ing and operating the regional hazardous substance research center and related research activities carried out by the grant recipient. "(7) Limitation on use of funds.— No funds made available to carry out this subsection shall be used for acquisition of real property (including buildings) or construction of any building. "(8) Administration through the office of the adminis- trator.— Administrative responsibility for carrying out this subsection shall be in the Office of the Administrator. "(9) Equitable distribution of funds.— The Administrator shall allocate funds made available to carry out this subsection equitably among the regions of the United States. "(10) Technology transfer activities.— Not less than five percent of the funds made available to carry out this subsection for any fiscal year shall be available to carry out technology transfer activities. "(e) Report to Congress.— At the time of the submission of the annual budget request to Congress, the Administrator shall submit to the appropriate committees of the House of Representatives and the Senate and to the advisory council established under subsection (a), a report on the progress of the research, development, and demonstration program authorized by subsection (b), including an evaluation of each demonstration project completed in the preceding fiscal year, findings with respect to the efficacy of such dem- onstrated technologies in achieving permanent and significant reductions in risk from hazardous wastes, the costs of such dem- onstration projects, and the potential applicability of, and projected costs for, such technologies at other hazardous substance sites. Real property. 104 100 STAT. 1716 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 6901 note. "(0 Saving Provision.— Nothing in this section shall be construed to affect the provisions of the Solid Waste Disposal Act. "(g) Small Business Participation.— Tne Administrator shall ensure, to the maximum extent practicable, an adequate oppor- tunity for small business participation in the program established by subsection (b).". SEC. 210. POLLUTION LIABILITY INSURANCE. CERCLA is amended by adding the following new title at the end thereof: "TITLE IV— POLLUTION INSURANCE 42 use 967 1 . "SEC. 401 . DEFINITIONS. "As used in this title — "(1) Insurance.— The term 'insurance' means primary insur- ance, excess insurance, reinsurance, surplus lines insurance, and any other arrangement for shifting and distributing risk which is determined to be insurance under applicable State or Federal law. "(2) Pollution liability. — The term 'pollution liability' means liability for injuries arising from the release of hazard- ous substances or pollutants or contaminants. "(3) Risk retention group.— The term 'risk retention group' means any corporation or other limited liability association taxable as a corporation, or as an insurance company, formed under the laws of any State — "(A) whose primary activity consists of assuming and spreading all, or any portion, of the pollution liability of its group members; "(B) which is organized for the primary purpose of conducting the activity described under subparagraph (A); "(C) which is chartered or licensed as an insurance com- pany and authorized to engage in the business of insurance under the laws of any State; and "(D) which does not exclude any person from membership in the group solely to provide for members of such a group a competitive advantage over such a person. "(4) Purchasing group.— The term 'purchasing group' means any group of persons which has as one of its purposes the purchase of pollution liability insurance on a group basis. "(5) State.— The term 'State' means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Common- wealth of the Northern Marianas, and any other territory or possession over which the United States has jurisdiction. 42 use 9672. "SEC. 402. STATE LAWS; SCOPE OF TITLE. "(a) State Laws.— Nothing in this title shall be construed to affect either the tort law or the law governing the interpretation of insurance contracts of any State. 'The definitions of pollution liabil- ity and pollution liability insurance under any State law shall not be applied for the purposes of this title, including recognition or qualification of risk retention groups or purchasing groups. "(b) Scope of Title. — The authority to offer or to provide insur- ance under this title shall be limited to coverage of pollution liabil- ity risks and this title does not authorize a risk retention group or purchasing group to provide coverage of any other line of insurance. 105 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1717 "SEC. 403. RISK RETENTION GROUPS. "(a) Exemption. — Except as provided in this section, a risk reten- tion group shall be exempt from the following: "(1) A State law, rule, or order which makes unlawful, or regulates, directly or indirectly, the operation of a risk reten- tion group. "(2) A State law, rule, or order which requires or permits a risk retention group to participate in any insurance insolvency guaranty association to which an insurer licensed in the State is required to belong. "(3) A State law, rule, or order which requires any insurance policy issued to a risk retention group or any member of the group to be countersigned by an insurance agent or broker residing in the State. "(4) A State law, rule, or order which otherwise discriminates against a risk retention group or any of its members. "(b) Exceptions.— "(1) State laws generally appuc able.— Nothing in subsec- tion (a) shall be construed to affect the applicability of State laws generally applicable to persons or corporations. The State in which a risk retention group is chartered may regulate the formation and operation of the group. "(2) State regulations not subject to exemption. — Subsec- tion (a) shall not apply to any State law which requires a risk retention group to do any of the following: "(A) Comply with the unfair claim settlement practices law of the State. "(B) Pay, on a nondiscriminatory basis, applicable pre- mium and other taxes which are levied on admitted insur- ers and surplus line insurers, brokers, or policyholders under the laws of the State. "(C) Participate, on a nondiscriminatory basis, in any mechanism established or authorized under the law of the State for the equitable apportionment among insurers of pollution liability insurance losses and expenses incurred on policies written through such mechanism. "(D) Submit to the appropriate authority reports and other information required of licensed insurers under the laws of a State relating solely to pollution liability insur- ance losses and exp)enses. "(E) Register with and designate the State insurance commissioner as its agent solely for the purpose of receiving service of legal documents or process. "(F) Furnish, upon request, such commissioner a copy of any financial report submitted by the risk retention group to the commissioner of the chartering or licensing jurisdiction. "(G) Submit to an examination by the State insurance commissioner in any State in which the group is doing business to determine the group's financial condition, if — "(i) the commissioner has reason to believe the risk retention group is in a financially impaired condition; and "(ii) the commissioner of the jurisdiction in which the group is chartered has not begun or has refused to initiate an examination of the group. 42 use 9673. 106 100 STAT. 1718 PUBLIC LAW 99-499— OCT. 17, 1986 State and local governments. Discrimination, prohibition. 42 use 9674. "(H) Comply with a lawful order issued in a delinquency proceeding commenced by the State insurance commis- sioner if the commissioner of the jurisdiction in which the group is chartered has failed to initiate such a proceeding after notice of a finding of financial impairment under subparagraph (G). "(c) Appucation of Exemptions.— The exemptions specified in subsection (a) apply to — "(1) pollution liability insurance coverage provided by a risk retention group for — "(A) such group; or "(B) any person who is a member of such group; "(2) the sale of pollution liability insurance coverage for a risk retention group; and "(3) the provision of insurance related services or manage- ment services for a risk retention group or any member of such a group. "(d) Agents or Brokers.— A State may require that a person acting, or offering to act, as an agent or broker for a risk retention group obtain a license from that State, except that a State may not impose any qualification or requirement which discriminates against a nonresident agent or broker. "SEC. 404. PURCHASING GROUPS. "(a) Exemption.— Except as provided in this section, a purchasing group is exempt from the following: "(DA State law, rule, or order which prohibits the establish- ment of a purchasing g^oup. "(2) A State law, rule, or order which makes it unlawful for an insurer to provide or offer to provide insurance on a basis providing, to a purchasing group or its member, advantages, based on their loss and expense experience, not afforded to other persons with respect to rates, policy forms, coverages, or other matters. "(3) A State law, rule, or order which prohibits a purchasing group or its members from purchasing insurance on the group basis described in paragraph (2) of this subsection. "(4) A State law, rule, or order which prohibits a purchasing group from obtaining insurance on a group basis because the group has not been in existence for a minimum period of time or because any member has not belonged to the group for a minimum period of time. "(5) A State law, rule, or order which requires that a purchas- ing group must have a minimum number of members, common ownership or affiliation, or a certain legal form. "(6) A State law, rule, or order which requires that a certain percentage of a purchasing group must obtain insurance on a group basis. "(7) A State law, rule, or order which requires that any insurance policy issued to a purchasing group or any members of the group be countersigned by an insurance agent or broker residing in that State. "(8) A State law, rule, or order which otherwise discriminate against a purchasing group or any of its members. "(b) Appucation of Exemptions.— The exemptions specified in subsection (a) apply to the following: 107 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1719 "(1) Pollution liability insurance, and comprehensive general liability insurance which includes this coverage, provided to — "(A) a purchasing group; or "(B) any person who is a member of a purchasing group. "(2) The sale of any one of the following to a purchasing group or a member of the group: "(A) Pollution liability insurance and comprehensive gen- eral liability coverage. "(B) Insurance related services. "(C) Management services. "(c) Agents or Brokers. — A State may require that a person acting, or offering to act, as an agent or broker for a purchasing group obtain a license from that State, except that a State may not impose any qualification or requirement which discriminates against a nonresident agent or broker. "SEC. 405. APPLICABILITY OF SECURITIES LAWS. "(a) Ownership Interests. — The ownership interests of members of a risk retention group shall be considered to be — "(1) exempted securities for purposes of section 5 of the Securities Act of 1933 and for purposes of section 12 of the Securities Exchange Act of 1934; and "(2) securities for purposes of the provisions of section 17 of the Securities Act of 1933 and the provisions of section 10 of the Securities Exchange Act of 1934. "(b) Investment Company Act.— A risk retention group shall not be considered to be an investment company for purposes of the Investment Company Act of 1940 (15 U.S.C 80a- 1 et seq.). "(c) Blue Sky Law.— The ownership interests of members in a risk retention group shall not be considered securities for purposes of any State blue sky law.". SEC. 2n. DEPARTMENT OF DEFENSE ENVIRONMENTAL RESTORATION PROGRAM. (a) In General.— (1) Title 10, United States Code, is amended— (A) by redesignating section 2701 as section 2721; and (B) by inserting after chapter 159 the following new chapter: "CHAPTER 160— ENVIRONMENTAL RESTORATION State and local governments. Discrimination, prohibition. 42 use 9675. 15 use 77e. 15 use 78/. 15 use 77q. 15 use 78j. ;Sec. '2701. Environmental restoration program. '2702. Research, development, and demonstration program. '2703. Environmental restoration transfer account. '2704. eommonly found unregulated hazardous substances. '2705. Notice of environmental restoration activities. '2706. Annual report to eongress. '2707. Definitions. '*§ 2701. Environmental restoration program "(a) Environmental Restoration Program — "(1) In general. — The Secretary of Defense shall carry out a program of environmental restoration at facilities under the jurisdiction of the Secretary. The program shall be known as the 'Defense Environmental Restoration Program'. "(2) Appucation of section 120 OF cercla.— Activities of the program described in subsection (b)(1) shall be carried out sub- ject to, and in a manner consistent with, section 120 (relating to Federal facilities) of the Comprehensive Environmental Re- 10 use 2701. 108 100 STAT. 1720 PUBLIC LAW 99-499— OCT. 17, 1986 Ante, p. 1666. sponse, Compensation, and Liability Act of 1980 (hereinafter in this chapter referred to as 'CERCLA') (42 U.S.C. 9601 et seq.). "(3) Consultation with epa. — The program shall be carried out in consultation with the Administrator of the Environ- mental Protection Agency. "(4) Administrative office within osd. — The Secretary shall identify an office within the Office of the Secretary which shall have responsibility for carrying out the program. "(b) Program Goai^. — Goals of the program shall include the following: "(1) The identification, investigation, research and develop- ment, and cleanup of contamination from hazardous substances, pollutants, and contaminants. "(2) Correction of other environmental damage (such as detec- tion and disposal of unexploded ordnance) which creates an imminent and substantial endangerment to the public health or welfare or to the environment. "(3) Demolition and removal of unsafe buildings and struc- tures, including buildings and structures of the Department of Defense at sites formerly used by or under the jurisdiction of the Secretary. "(c) Responsibility for Response Actions.— "(1) Basic responsibility. — The Secretary shall carry out (in accordance with the provisions of this chapter and CERCLA) all response actions with respect to releases of hazardous sub- stances from each of the following: "(A) Each facility or site owned by, leased to, or otherwise possessed by the United States and under the jurisdiction of the Secretary. "(B) Each facility or site which was under the jurisdiction of the Secretary and owned by, leased to, or otherwise possessed by the United States at the time of actions lead- ing to contamination by hazardous substances. "(C) Each vessel owned or operated by the Department of Defense. "(2) OTHEii responsible PARTIES. — Paragraph (1) shall not apply to a removal or remedial action if the Administrator has provided for response action by a potentially responsible person in accordance with section 122 of CERCLA (relating to settlements). Waste disposal. "(3) STATE FEES AND CHARGES.— The Secretary shall pay fees and charges imposed by State authorities for permit services for the disposal of hazardous substances on lands which are under the jurisdiction of the Secretary to the same extent that non- governmental entities are required to pay fees and charges impcxsed by State authorities for permit services. The preceding sentence shall not apply with respect to a payment that is the responsibility of a lessee, contractor, or other private person. "(d) Services of Other Agencies. — The Secretary may enter into agreements on a reimbursable basis with any other Federal agency, and on a reimbursable or other basis with any State or local government agency, to obtain the services of that agency to assist the Secretary in carrying out any of the Secretary's responsibilities under this section. Services which may be obtained under this subsection include the identification, investigation, and cleanup of any off-site contamination possibly resulting from the release of a 109 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1721 hazardous substance or waste at a facility under the Secretary's jurisdiction. "(e) Response Action Contractors.— The provisions of section 119 of CERCLA apply to response action contractors (as defined in that section) who carry out response actions under this section. "§ 2702. Research, development, and demonstration program "(a) Program.— As part of the Defense Environmental Restora- tion Program, the Secretary of Defense shall carry out a program of research, development, and demonstration with respect to hazard- ous wastes. The program shall be carried out in consultation and cooperation with the Administrator and the advisory council estab- lished under section 311(aX5) of CERCLA. The program shall include research, development, and demonstration with respect to each of the following: "(1) Means of reducing the quantities of hazardous waste generated by activities and facilities under the jurisdiction of the Secretary. "(2) Methods of treatment, disposal, and management (includ- ing recycling and detoxifying) of hazardous waste of the types and quantities generated by current and former activities of the Secretary and facilities currently and formerly under the juris- diction of the Secretary. "(3) Identifying more cost-effective technologies for cleanup of hazardous substances. "(4) Toxicological data collection and methodology on risk of exposure to hazardous waste generated by the Department of Defense. "(5) The testing, evaluation, and field demonstration of any innovative technology, processes, equipment, or related training devices which may contribute to establishment of new methods to control, contain, and treat hazardous substances, to be car- ried out in consultation and cooperation with, and to the extent possible in the same manner and standards as, testing, evalua- tion, and field demonstration carried out by the Administrator, acting through the office of technology demonstration of the Environmental Protection Agency. "(b) Special Permit.— The Administrator may use the authorities of section 3005(g) of the Solid Waste Disposal Act (42 U.S.C. 6925(g)) to issue a permit for testing and evaluation which receives support under this section. "(c) Contracts and Grants.— The Secretary may enter into con- tracts and cooperative agreements with, and make grants to, univer- sities, public and private profit and nonprofit entities, and other persons to carry out the research, development, and demonstration authorized under this section. Such contracts may be entered into only to the extent that appropriated funds are available for that purpose. "(d) Information CIollection and Dissemination.— "(1) In general.— The Secretary shall develop, collect, evalu- ate, and disseminate information related to the use (or potential use) of the treatment, disposal, and management technologies that are researched, developed, and demonstrated under this section. "(2) Role of epa.— The functions of the Secretary under paragraph (1) shall be carried out in cooperation and consulta- tion with the Administrator. To the extent appropriate and 10 use 2702. Ante, p. 1708. no 100 STAT. 1722 PUBLIC LAW 99-499— OCT. 17, 1986 10 use 2703. President of US. 15 use 2601 note, 42 USe 201 note, 42 use 7401 note. 33 use 1251 note. agreed upon by the Administrator and the Secretary, the Administrator shall evaluate and disseminate such information through the office of technology demonstration of the Environ- mental Protection Agency. "§ 2703. Environmental restoration transfer account "(a) Establishment of Transfer Account.— "(1) Establishment.— There is hereby established in the Department of Defense an account to be known as the 'Defense Environmental Restoration Account' (hereinafter in this section referred to as the 'transfer account'). All sums appropriated to carry out the functions of the Secretary of Defense relating to environmental restoration under this chapter or any other provision of law shall be appropriated to the transfer account. "(2) Requirement of authorization of appropmatigns.- No funds may be appropriated to the transfer account unless such sums have been specifically authorized by law. "(3) Availability of funds in transfer account.— Amounts appropriated to the transfer account shall remain available until transferred under subsection (b). "(b) Authority To Transfer to Other DOD Accounts.— Amounts in the transfer account shall be available to be transferred by the Secretary to any appropriation account or fund of the Depart- ment for obligation from that account or fund. Fimds so transferred shall be merged with and available for the same purposes and for the same period as the account or fund to which transferred. "(c) Obugation of Transferred Amounts.- Funds transferred under subsection (b) may only be obligated or expended from the account or fund to which transferred in order to carry out the functions of the Secretary under this chapter or environmental restoration functions under any other provision of law. "(d) Budget Reports.- In proposing the Budget for any fiscal vear pursuant to section 1105 of title 31, the President shall set forth separately the amount requested for environmental restoration pro- grams of the Department of Defense under this chapter or any other Act. "(e) Amounts Recovered Under CERCLA.— Amounts recovered under section 107 of CERCLA for response actions of the Secretary shall be credited to the transfer account. "§ 2704. Commonly found unregulated hazardous substances "(a) Notice to HHS.— "(1) In general.— The Secretary of Defense shall notify the Secretary of Health and Human Services of the hazardous substances which the Secretary of Defense determines to be the most commonly found unregulated hazardous substances at facilities under the Secretary's jurisdiction. The notification shall be of not less than the 25 most widely used such substances. "(2) Definition.— In this subsection, the term 'unregulated hazardous substance' means a hazardous substance — "(A) for which no standard, requirement, criteria, or limitation is in effect under the Toxic Substances Control Act, the Safe Drinking Water Act, the Clean Air Act, or the Clean Water Act; and "(B) for which no water quality criteria are in effect under any provision of the Clean Water Act. Ill PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1723 "(b) ToxicOlogical Profiles.— The Secretary of Health and Human Services shall take such steps as necessary to ensure the timely preparation of toxicological profiles of each of the substances of which the Secretary is notified under subsection (a). The profiles of such substances shall include each of the following: "(1) The examination, summary, and interpretation of avail- able toxicological information and epidemiologic evaluations on a hazardous substance in order to ascertain the levels of signifi- cant human exposure for the substance and the associated acute, subacute, and chronic health effects. "(2) A determination of whether adequate information on the health effects of each substance is available or in the process of development to determine levels of exposure which present a significant risk to human health of acute, subacute, and chronic health effects. "(3) Where appropriate, toxicological testing directed toward determining the maximum exposure level of a hazardous sub- stance that is safe for humans. "(c) DOD Support. — The Secretary of Defense shall transfer to the Secretary of Health and Human Services such toxicological data, such sums from amounts appropriated to the Department of De- fense, and such personnel of the Department of Defense as may be necessary (1) for the preparation of toxicological profiles under subsection (b) or (2) for other health related activities under section 104(i) of CERCLA. The Secretary of Defense and the Secretary of Health and Human Services shall enter into a memorandum of understanding regarding the manner in which this section shall be carried out, including the manner for transferring funds and person- nel and for coordination of activities under this section. "(d) EPA Health Advisories.— "(1) Preparation.— At the request of the Secretary of De- fense, the Administrator shall, in a timely manner, prepare health advisories on hazardous substances. Such an advisory shall be prepared on each hazardous substance — "(A) for which no advisory exists; "(B) which is found to threaten drinking water; and "(C) which is emanating from a facility under the juris- diction of the Secretary. "(2) Content of health advisories. — Such health advisories shall provide specific advice on the levels of contaminants in drinking water at which adverse health effects would not be anticipated and which include a margin of safety so as to protect the most sensitive members of the population at risk. The advisories shall provide data on one-day, 10-day, and longer-tarm exposure periods where available toxicological data exist. "(3) DOD support for health advisories.— The Secretary of Defense shall transfer to the Administrator such toxicological data, such sums from amounts appropriated to the Department of Defense, and such personnel of the Depaitment of Defense as may be necessary for the preparation of such health advisories. The Secretary and the Administrator shall enter into a memo- randum of understanding regarding the manner in which this subsection shall be carried 0';t, including the manner for transferring funds and personnel and for coordination of activi- ties under this subsection. Ante, p. 1636. 75-032 0-90 112 100 STAT. 1724 PUBLIC LAW 99-499— OCT. 17, 1986 Ante, p. 1636. 10 use 2705. State and local governments. *'(e) Cross Reference. — Section 104(i) of CERCLA applies to facili- ties under the jurisdiction of the Secretary of Defense in the manner prescribed in that section. "(f) Functions of HHS To Be Carried Out Through ATSDR.— The functions of the Secretary of Health and Human Services under this section shall be carried out through the Administrator of the Agency of Toxic Substances and Disease Registry of the Department of Health and Human Services established under section 104(i) of CERCLA. "§ 2705. Notice of environmental restoration activities "(a) Expedited Notice. — The Secretary of Defense shall take such actions as necessary to ensure that the regional offices of the Environmental Protection Agency and appropriate State and local authorities for the State in which a facility under the Secretary's jurisdiction is located receive prompt notice of each of the following: "(1) The discovery of releases or threatened releases of hazardous substances at the facility. "(2) The extent of the threat to public health and the environ- ment which may be associated with any such release or threat- ened release. "(3) Proposals made by the Secretary to carry out response actions with respect to any such release or threatened release. "(4) The initiation of any response action with respect to such release or threatened release and the commencement of each distinct phase of such activities. "(b) Comment by EPA and State and Local Authorities. — "(1) Release notices. — The Secretary shall ensure that the Administrator of the Environmental Protection Agency and appropriate State and local officials have an adequate oppor- tunity to comment on notices under paragraphs (1) and (2) of subsection (a). "(2) Proposals for response actions. — The Secretary shall require that an adequate opportunity for timely review and comment be afforded to the Administrator and to appropriate State and local officials after making a proposal referred to in subsection (aX3) and before undertaking an activity or action referred to in subsection (aX4). The preceding sentence does not apply if the action is an emergency removal taken because of imminent and substantial endangerment to human health or the environment and consultation would be impractical. "(c) Technical Review CJommfttee. — Whenever possible and prac- tical, the Secretary shall establish a technical review committee to review and comment on Department of Defense actions and pro- posed actions with respect to releases or threatened releases of hazardous substances at installations. Members of any such commit- tee shall include at least one representative of the Secretary, the Administrator, and appropriate State and local authorities and shall include a public representative of the community involved. **§ 2706. Annual report to Congress "(a) Report on Progress in Implementation. — The Secretary of Defense shall submit to Congress a report each fiscal year describing the progress made by the Secretary during the preceding fiscal year in implementing the requirements of this chapter. "(b) Matters To Be Included.— Each such report shall include the following: 113 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1725 "(DA statement for each installation under the jurisdiction of the Secretary of the number of individual facilities at which a hazardous substance has been identified. "(2) The status of response actions contemplated or under- taken at each such facility. "(3) The specific cost estimates and budgetary proposals involving response actions contemplated or undertaken at each such facility. "(4) A report on progress on conducting response actions at facilities other than facilities on the National Priorities List. "§ 2707. Definition.s 10 USC 2707 "In this chapter: "(1) The terms 'environment', 'facility', 'hazardous substance', 'person', 'release', 'removal', 'response', 'disposal', and 'hazard- ous waste' have the meanings given those terms in section 101 of CERCLA (42 USC. 9601). "(2) The term 'Administrator' means the Administrator of the Environmental Protection Agency". (2) The tables of chapters at the beginning of subtitle A, and at the beginning of part IV of subtitle A, of such title are each amended by inserting after the item relating to chapter 159 the following new item: "160. Knvironmental Restoration 2701". (3) The table of sections at the beginning of chapter 161 of such title is amended to reflect the redesignation made by paragraph (IKA). (b) Military Construction Projects.— (1) Chapter 169 of title 10, United States Code, is amended by inserting at the end of sub- chapter I the following new section: "§ 2810. Construction projects for environmental response actions lO USC 2810 "(a) Subject to subsection (b), the Secretary of Defense may carry out a military construction project not otherwise authorized by law (or may authorize the Secretary of a military department to carry out such a project) if the Secretary of Defense determines that the project is necessary to carry out a response action under chapter 160 of this title or under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 USC. 9601 et seq). "(b)(1) When a decision is made to carry out a military construe- Reports, tion project under this section, the Secretary of Defense shall submit a report in writing to the appropriate committees of Congress on that decision. Each such report shall include — "(A) the justification for the project and the current estimate of the cost of the project; and "(B) the justification for carrying out the project under this section. "(2) The project may then be carried out only after the end of the 21-day period beginning on the date the notification is received by such committees. "(c) In this section, the term 'response action' has the meanmg given that term in section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1!)S() (42 USC. 9601).". 114 100 STAT. 1726 PUBLIC LAW 99-499— OCT. 17, 1986 10 use 2703 note. Ante, p. 1707. 42 use 9651. 5 use app. 42 use 96H1 note (2) The table of sections at the beginning of subchapter I of such chapter is amended by adding at the end thereof the following new item: "2810. Construction projects for environmental response actions.". (c) Effective Date.— Section 2703(aK2) of title 10, United States Code, as added by subsection (a), shall apply with respect to funds appropriated for fiscal years beginning after September 30, 1986. SEC. 212. REPORT AND OVERSIGHT REQUIREMENTS. Section 301 of CERCLA is amended by adding at the end thereof the following new subsection: "(h) Report and Oversight Requirements. — "(1) Annual report by epa.— On January 1 of each year the Administrator of the Environmental Protection Agency shall submit an annual report to Congress of such Agency on the progress achieved in implementing this Act during the preced- ing fiscal year. In addition such report shall specifically include each of the following: "(A) A detailed description of each feasibility study car- ried out at a facility under title I of this Act. "(B) The status and estimated date of completion of each such study. "(C) Notice of each such study which will not meet a previously published schedule for completion and the new estimated date for completion. "(D) An evaluation of newly developed feasible and achievable permanent treatment technologies. "(E) Progress made in reducing the number of facilities subject to review under section 121(c). "(F) A report on the status of all remedial and enforce- ment actions undertaken during the prior fiscal year, including a comparison to remedial and enforcement ac- tions undertaken in prior fiscal years. "(G) An estimate of the amount of resources, including the number of work years or personnel, which would be necessary for each department, agency, or instrumentality which is carrying out any activities of this Act to complete the implementation of all duties vested in the department, agency, or instrumentality under this Act. "(2) Review by inspector general. — Consistent with the authorities of the Inspector General Act of 1978 the Inspector General of the Environmental Protection Agency shall review any report submitted under paragraph (1) related to EPA's activities for reasonableness and accuracy and submit to Con- gress, as a part of such report a report on the results of such review. "(3) Congressional oversight. — After receiving the reports under paragraphs (1) and (2) of this subsection in any calendar year, the appropriate authorizing committees of Congress shall conduct oversight hearings to ensure that this Act is being implemented according to the purposes of this Act and congres- sional intent in enacting this Act.". SEC. 213. LOVE CANAL PROPERTY ACQUISITION. (a) Congressional Findings — 115 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1727 New York. 42 use 9661. Grants. (1) The area known as Love Canal located in the city of New York Niagara Falls and the town of Wheatfield, New York, was the first toxic waste site to receive national attention. As a result of that attention Congress investigated the problems associated with toxic waste sites and enacted CERCLA to deal with these problems. ^ (2) Because Love Canal came to the Nation s attention prior to the passage of CERCLA and because the fund under CERCLA was not available to compensate for all of the hardships en- dured by the citizens in the area. Congress has determined that special provisions are required. These provisions do not affect the lawfulness, implementation, or selection of any other re- sponse actions at Love Canal or at any other facilities. (b) Amendment of Superfund.— Title III of CERCLA is amended by adding the following new section at the end thereof: "SEC. 312. LOVE CANAL PROPERTY ACQUISITION. "(a) Acquisition of Property in Emergency Declaration Area.— The Administrator of the Environmental Protection Agency (hereinafter referred to as the 'Administrator') may make grants not to exceed $2,500,000 to the State of New York (or to any duly constituted public agency or authority thereof) for purposes of ac- quisition of private property in the Love Canal Emergency Declara- tion Area. Such acquisition shall include (but shall not be limited to) all private property within the Emergency Declaration Area, includ- ing non-owner occupied residential properties, commercial, indus- trial, public, religious, non-profit, and vacant properties. "it) Procedures for Acquisition.— No property shall be acquired pursuant to this section unless the property owner voluntarily agrees to such acquisition. Compensation for any property acquired pursuant to this section shall be based upon the fair market value of the property as it existed prior to the emergency declaration. Valu- ation procedures for property acquired with funds provided under this section shall be in accordance with those set forth in the agreement entered into between the New York State Disaster Preparedness Commission and the Love Canal Revitalization Agency on October 9, 1980. "(c) State Ownership.— The Administrator shall not provide any funds under this section for the acquisition of any properties pursu- ant to this section unless a public agency or authority of the State of New York first enters into a cooperative agreement with the Administrator providing assurances deemed adequate by the Administrator that the State or an agency created under the laws of the State shall take title to the properties to be so acquired. "(d) Maintenance of Property.— The Administrator shall enter into a cooperative agreement with an appropriate public agency or authority of the State of New York under which the Administrator shall maintain or arrange for the maintenance of all properties within the Emergency Declaration Area that have been acquired by any public agency or authority of the State. Ninety (90) percent of the costs of such maintenance shall be paid by the Administrator. The remaining portion of such costs shall be paid by the State (unless a credit is available under section 104(c)). The Administrator is authorized, in his discretion, to provide technical assistance to any public agency or authority of the State of New York in order to implement the recommendations of the habitability and land-use Contracts. Contracts. Ante, p. 1619. 116 100 STAT. 1728 PUBLIC LAW 99-499— OCT. 17, 1986 Ante, pp. 1642, 1706, 1696. \ Study in order to put the land within the Emergency Declaration Area to its best use. "(e) Habitabiuty and Land Use Study.— The Administrator shall conduct or cause to be conducted a habitability and land-use study. The study shall — "(1) assess the risks associated with inhabiting of the Love Canal Emergency Declaration Area; "(2) compare the level of hazardous waste contamination in that Area to that present in other comparable communities; and "(3) assess the potential uses of the land within the Emer- gency Declaration Area, including but not limited to residential, industrial, commercial and recreational, and the risks associ- ated with such potential uses. The Administrator shall publish the findings of such study and shall work with the State of New York to develop recommendations based upon the results of such study. "(0 Funding.— For purposes of section 111 [and 221(c) of this Act], the expenditures authorized by this section shall be treated as a cost specified in section 111(c). "(g) Response.— The provisions of this section shall not affect the implementation of other response actions within the Emergency Declaration Area that the Administrator has determined (hsfore enactment of this section) to be necessary to protect the public health or welfare or the environment. "(h) Definitions.— For purposes of this section: "(1) Emergency declaration area.— The terms 'Emergency Declaration Area' and 'Love Canal Emergency Declaration Area' mean the Emergency Declaration Area as defined in section 950, paragraph (2) of the General Municipal Law of the State of New York, Chapter 259, Laws of 1980, as in effect on the date of the enactment of this section. "(2) Private property.— As used in subsection (a), the term 'private property' means all property which is not owned by a department, agency, or instrumentality of— "(A) the United States, or "(B) the State of New York (or any public agency or authority thereoO". Emergency Planning and Community Right-To-Know Act of 1986. 42 use 11001 note. TITLE III- -EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW SEC. 300. SHORT TITLE; TABLE OF CONTENTS. (a) Short Title.— This title may be cited as the "Emergency Planning and Community Right-To-Know Act of 1986". (b) Table of Contents.— The table of contents of this title is as follows: Sec. 300. Short title; table of contents. Subtitle A— Emergency Planning and Notification Sec. 301. Establishment of State commissions, planning districts, and local commit- tees. Sec. 302. Substances and facilities covered and notification. Sec. 303. Comprehensive emergency response plans. Sec. 304. Emergency notification. Sec. 305. Emergency training and review of emergency systems. Subtitle B — Reporting Requirements Sec. 311. Material safety data sheets. 117 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1729 Sec. 312. Emergency and hazardous chemical inventory forms. Sec. 313. Toxic chemical release forms. Subtitle C — General Provisions Sec. 321. Relationship to other law. Sec. 322. Trade secrets. Sec. 323. Provision of information to health professionals, doctors, and nurses. Sec. 324. Public availability of plans, data sheets, forms, and followup notices. Sec. 325. Enforcement. Sec. 326. Civil Actions. Sec. 327. Exemption. Sec. 328. Regulations. Sec. 329. Definitions. Sec. 330. Authorization of appropriations. Subtitle A— Emergency Planning and Notification SEC. 301. ESTABLISHMENT OF STATE COMMISSIONS. PLANNING DIS- 42 USC 11001 TRICTS. AND LOCAL COMMITTEES. (a) ESTABUSHMENT OF StATE EMERGENCY RESPONSE COMMIS- SIONS.— Not later than six months after the date of the enactment of this title, the Governor of each State shall appoint a State emer- gency response commission. The Governor may designate as the State emergency response commission one or more existing emer- gency response organizations that are State-sponsored or appointed. The Governor shall, to the extent practicable, appoint persons to the State emergency response commission who have technical expertise in the emergency response field. The State emergency response commission shall appoint local emergency planning committees under subsection (c) and shall supervise and coordinate the activities of such committees. The State emergency response commission shall establish procedures for receiving and processing requests from the public for information under section 324, including tier II informa- tion under section 312. Such procedures shall include the designa- tion of an official to serve as coordinator for information. If the Governor of any State does not designate a State emergency response commission within such period, the Governor shall operate as the State emergency response commission until the Governor makes such designation. (b) Estabushment of Emergency Planning Districts— Not later than nine months after the date of the enactment of this title, the State emergency response commission shall designate emer- gency planning districts in order to facilitate preparation and implementation of emergency plans. Where appropriate, the State emergency response commission may designate existing political subdivisions or multijurisdictional planning organizations as such districts. In emergency planning areas that involve more than one State, the State emergency response commissions of all potentially affected States may designate emergency planning districts and local emergency planning committees by agreement. In making such designation, the State emergency response commission shall indicate which facilities subject to the requirements of this subtitle are within such emergency planning district. (c) Estabushment of Local Emergency Planning Commit- tees.— Not later than 30 days after designation of emergency plan- ning districts or 10 months after the date of the enactment of this title, whichever is earlier, the State emergency response commission shall appoint members of a local emergency planning committee for each emergency planning district. Each committee shall include, at 118 100 STAT. 1730 PUBLIC LAW 99-499— OCT. 17, 1986 \ ^^ ._ a minimum, representatives from each of the following groups or organizations: elected State and local officials; law enforcement, civil defense, firefighting, first aid, health, local environmental, hospital, and transportation personnel; broadcast and print media; community groups; and owners and operators of facilities subject to the requirements of this subtitle. Such committee shall appoint a chairperson and shall establish rules by which the committee shall function. Such rules shall include provisions for public notification of committee activities, public meetings to discuss the emergency plan, public comments, response to such comments by the commit- tee, and distribution of the emergency plan. The local emergency planning committee shall establish procedures for receiving and processing requests from the public for information under section 324, including tier II information under section 312. Such proce- dures shall include the designation of an official to serve as coordinator for information. (d) Revisions.— A State emergency response commission may revise its designations and appointments under subsections (b) and (c) as it deems appropriate. Interested persons may petition the State emergency response commission to modify the membership of a local emergency planning committee. 42 use 11002 SEC. 302. SUBSTANCES AND FACILITIES COVERED AND NOTIFICATION. (a) Substances Covered. — (1) In GENERAL.— a substance is subject to the requirements of this subtitle if the substance is on the list published under paragraph (2). (2) List dr extremely hazardous substances— Within 30 days after the date of the enactment of this title, the Adminis- trator shall publish a list of extremely hazardous substances. The list shall be the same as the list of substances published in November 1985 by the Administrator in Appendix A of the "Chemical Emergency Preparedness Program Interim Guidance". Regulations (3) THRESHOLDS. — (A) At the time the list referred to in para- graph (2) is published the Administrator shall— (i) publish an interim final regulation establishing a threshold planning quantity for each substance on the list, taking into account the criteria described in paragraph (4), and (ii) initiate a rulemaking in order to publish final regula- tions establishing a threshold planning quantity for each substance on the list. (B) The threshold planning quantities may, at the Adminis- trator's discretion, be based on classes of chemicals or categories of facilities. (C) If the Administrator fails to publish an interim final regulation establishing a threshold planning quantity for a substance within 30 days after the date of the enactment of this title, the threshold planning quantity for the substance shall be 2 pounds until such time as the Administrator publishes regula- tions establishing a threshold for the substance. (4) Revisions. — The Administrator may revise the list and thresholds under paragraphs (2) and (3) from time to time. Any revisions to the list shall take into account the toxicity, reactiv- ity, volatility, dispersability, combustability, or flammability of a substance. For purposes of the preceding sentence, the term 119 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1731 "toxicity" shall include any short- or long-term health effect which may result from a short-term exposure to the substance. (b) Facilities Covered. — (1) Except as provided in section 304, a facility is subject to the requirements of this subtitle if a substance on the list referred to in subsection (a) is present at the facility in an amount in excess of the threshold planning quantity established for such substance. (2) For purposes of emergency planning, a Governor or a State emergency response commission may designate additional facilities which shall be subject to the requirements of this subtitle, if such designation is made after public notice and opportunity for com- ment. The Governor or State emergency response commission shall notify the facility concerned of any facility designation under this paragraph. (c) Emergency Planning Notification. — Not later than seven months after the date of the enactment of this title, the owner or operator of each facility subject to the requirements of this subtitle by reason of subsection (bXD shall notify the State emergency response commission for the State in which such facility is located that such facility is subject to the requirements of this subtitle. Thereafter, if a substance on the list of extremely hazardous sub- stances referred to in subsection (a) first becomes present at such facility in excess of the threshold planning quantity established for such substance, or if there is a revision of such list and the facility has present a substance on the revised list in excess of the threshold planning quantity established for such substance, the owner or operator of the facility shall notify the State emergency response commission and the local emergency planning committee within 60 days after such acquisition or revision that such facility is subject to the requirements of this subtitle. (d) Notification of Administrator. — The State emergency response commission shall notify the Administrator of facilities subject to the requirements of this subtitle by notifying the Adminis- trator of^ (1) each notification received from a facility under subsection (c), and (2) each facility designated by the Governor or State emer- gency response commission under subsection (bX2). SEC. 303. COMPREHENSIVE EMERGENCY RESPONSE PLANS. (a) Plan Required. — E^ch local emergency planning committee shall complete preparation of an emergency plan in accordance with this section not later than two years after the date of the enactment of this title. The committee shall review such plan once a year, or more frequently as changed circumstances in the community or at any facility may require. 0)) Resources. — Each local emergency planning committee shall evaluate the need for resources necessary to develop, implement, and exercise the emergency plan, and shall make recommendations with respect to additional resources that may be required and the means for providing such additional resources. (c) Plan Provisions. — Each emergency plan shall include 0)ut is not limited to) each of the following: (1) Identification of facilities subject to the requirements of this subtitle that are within the emergency planning district, identification of routes likely to be used for the transportation of substances on the list of extremely hazardous substances 42 use 11003. 120 10(r STAT. 1732 PUBLIC LAW 99-499— OCT. 17, 1986 referred to in section 302(a), and identification of additional facilities contributing or subjected to additional risk due to their proximity to facilities subject to the requirements of this sub- title, such as hospitals or natural gas facilities. (2) Methods and procedures to be followed by facility owners and operators and local emergency and medical personnel to respond to any release of such substances. (3) Designation of a community emergency coordinator and facility emergency coordinators, who shall make determinations necessary to implement the plan. (4) Procedures providing reliable, effective, and timely notification by the facility emergency coordinators and the community emergency coordinator to persons designated in the emergency plan, and to the public, that a release has occurred (consistent with the emergency notification requirements of section 304). (5) Methods for determining the occurrence of a release, and the area or population likely to be affected by such release. (6) A description of emergency equipment and facilities in the community and at each facility in the community subject to the requirements of this subtitle, and an identification of the per- sons responsible for such equipment and facilities. (7) Evacuation plans, including provisions for a precautionary evacuation and alternative traffic routes. (8) Training programs, including schedules for training of local emergency response and medical personnel. (9) Methods and schedules for exercising the emergency plan. (d) Providing of Information. — For each facility subject to the requirements of this subtitle: (1) Within 30 days after establishment of a local emergency planning committee for the emergency planning district in which such facility is located, or within 11 months after the date of the enactment of this title, whichever is earlier, the owner or operator of the facility shall notify the emergency planning committee (or the Governor if there is no committee) of a facility representative who will participate in the emergency planning process as a facility emergency coordinator. (2) The owner or operator of the facility shall promptly inform the emergency planning committee of any relevant changes occurring at such facility as such changes occur or are expected to occur. (3) Upon request from the emergency planning committee, the owner or operator of the facility shall promptly provide information to such committee necessary for developing and implementing the emergency plan. (e) Review by the State Emergency Response Commission.— After completion of an emergency plan under subsection (a) for an emergency planning district, the local emergency planning commit- tee shall submit a copy of the plan to the State emergency response commission of each State in which such district is located. The commission shall review the plan and make recommendations to the committee on revisions of the plan that may be necessary to ensure coordination of such plan with emergency response plans of other emergency planning districts. To the maximum extent practicable, such review shall not delafy^ implementation of such plan. if) Guidance Documents. — The national response team, as estab- lished pursuant to the National Contingency Plan as established 121 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1733 under section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq), shall publish guidance documents for preparation and implementa- tion of emergency plans. Such documents shall be published not later than five months after the date of the enactment of this title, (g) Review of Plans by Regional Response Teams— The regional response teams, as established pursuant to the National Contingency Plan as established under section 105 of the Com- prehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), may review and comment upon an emergency plan or other issues related to preparation, implementation, or exercise of such a plan upon request of a local emergency planning committee. Such review shall not delay implementation of the plan. SEC. 304. EMERGENCY NOTIFICATION. 42 use 9605. 42 use 9605. 42 use 11004. (a) Types of Releases.— (1) 302(a) substance which requires cercla notice— It a release of an extremely hazardous substance referred to in section 302(a) occurs from a facility at which a hazardous Ante, p. 1730. chemical is produced, used, or stored, and such release requires a notification under section 103(a) of the (3oniprehensive Environmental Response, Compensation, and Liability Act of 1980 (hereafter in this section referred to as "CERCLA") (42 42 use 9603. U.S.C. 9601 et seq.), the owner or operator of the facility shall immediately provide notice as described in subsection (b). (2) Other 302(a) substance.— If a release of an extremely hazardous substance referred to in section 302(a) occurs from a facility at which a hazardous chemical is produced, used, or stored, and such release is not subject to the notification requirements under section 103(a) of CERCLA, the owner or operator of the facility shall immediately provide notice as described in subsection (b), but only if the release— (A) is not a federally permitted release as defined in section 101(10) of CERCLA, ^ ^ u (B) is in an amount in excess of a quantity which the Administrator has determined (by regulation) requires notice, and (C) occurs in a manner which would require notification under section 103(a) of CERCLA. Unless and until superseded by regulations establishing a quan- tity for an extremely hazardous substance described in this paragraph, a quantity of 1 pound shall be deemed that quantity the release of which requires notice as described in suteection (b). (3) NoN-302(a) substance which requires cercla notice.— It a release of a substance which is not on the list referred to in section 302(a) occurs at a facility at which a hazardous chemical is produced, used, or stored, and such release requires notifica- tion under section 103(a) of CERCLA, the owner or operator shall provide notice as follows: (A) If the substance is one for which a reportable quantity has been established under section 102(a) of CERCLA, the Ante, p. 1617. owner or operator shall provide notice as described in subsection (b). (B) If the substance is one for which a reportable quantity has not been established under section 102(a) of CERCLA— 122 100 STAT. 1734 PUBLIC LAW 99-499— OCT. 17, 1986 (i) Until April 30, 1988, the owner or operator shall provide, for releases of one pound or more of the sub- stance, the same notice to the community emergency coordinator for the local emergency planning commit- tee, at the same time and in the same form, as notice is provided to the National Response Center under sec- 42 use 9603. tion 103(a) of CERCLA. (ii) On and after April 30, 1988, the owner or operator shall provide, for releases of one pound or more of the substance, the notice as described in subsection (b). (4) Exempted releases.— This section does not apply to any release which results in exposure to persons solely within the site or sites on which a facility is located. (b) Notification. — (1) Recipients of notice.— Notice required under subsection (a) shall be given immediately after the release by the owner or operator of a facility (by such means as telephone, radio, or in person) to the community emergency coordinator for the local emergency planning committees, if established pursuant to sec- Ante, p. 1729. tion 301(c), for any area likely to be affected by the release and to the State emergency planning commission of any State likely to be affected by the release. With respect to transportation of a substance subject to the requirements of this section, or storage incident to such transportation, the notice requirements of this section with respect to a release shall be satisfied by dialing 911 or, in the absence of a 911 emergency telephone number, calling the operator. (2) Contents. — Notice required under subsection (a) shall include each of the following (to the extent known at the time of the notice and so long as no delay in responding to the emer- gency results): (A) The chemical name or identity of any substance involved in the release. (B) An indication of whether the substance is en the list referred to in section 302(a). (C) An estimate of the quantity of any such substance that was released into the environment. (D) The time and duration of the release. (E) The medium or media into which the release occurred. (F) Any known or anticipated acute or chronic health risks associated with the emergency and, where appro- priate, advice regarding medical attention necessary for exposed individuals. (G) Proper precautions to take as a result of the release, including evacuation (unless such information is readily available to the community emergency coordinator pursu- ant to the emergency plan). (H) The name and telephone number of the person or persons to be contacted for further information. (c) FoLLOwup Emergency Notice. — As soon as practicable after a release which requires notice under subsection (a), such owner or operator shall provide a written followup emergency notice (or notices, as more information becomes available) setting forth and updating the information required under subsection (b), and includ- ing additional information with respect to— (1) actions taken to respond to and contain the release, 123 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1735 (2) any known or anticipated acute or chronic health risks associated with the release, and (3) where appropriate, advice regarding medical attention necessary for exposed individuals. (d) Transportation Exemption Not Appucable. — The exemption provided in section 327 (relating to transportation) does not apply to this section. Post, p. 1757. Appropriation authorization. Grants. SEC. 305. EMERGENCY TRAINING AND REVIEW OF EMERGENCY SYSTEMS. 42 USC 11005. (a) Emergency Training.— (1) Programs. — Officials of the United States Government carrying out existing Federal programs for emergency training are authorized to specifically provide training and education programs for Federal, State, and local personnel in hazard mitigation, emergency preparedness, fire prevention and con- trol, disaster response, long-term disaster recovery, national security, technological and natural hazards, and emergency processes. Such programs shall provide special emphasis for such training and education with respect to hazardous chemicals. (2) State and local program support.— There is authorized to be appropriated to the Federal Emergency Management Agency for each of the fiscal years 1987, 1988, 1989, and 1990, $5,000,000 for making grants to support programs of State and local governments, and to support university-sponsored pro- grams, which are designed to improve emergency planning, preparedness, mitigation, response, and recovery capabilities. Such programs shall provide special emphasis with respect to emergencies associated v/ith hazardous chemicals. Such grants may not exceed 80 percent of the cost of any such program. The remaining 20 percent of such costs shall be funded from non- Federal sources. (3) Other programs. — Nothing in this section shall affect the availability of appropriations to the Federal Emergency Management Agency for any programs carried out by such agency other than the programs referred to in paragraph (2). Qo) Review of Emergency Systems. — (1) Review. — The Administrator shall initiate, not later than 30 days after the date of the enactment of this title, a review of emergency systems for monitoring, detecting, and preventing releases of extremely hazardous substances at representative domestic facilities that produce, use, or store extremely ha2^rd- ous substances. The Administrator may select representative extremely hazardous substances from the substances on the list referred to in section 302(a) for the purposes of this review. The Administrator shall report interim findings to the Congress not later than seven months after such date of enactment, and issue a final report of findings and recommendations to the Congress not later than 18 months after such date of enactment. Such report shall be prepared in consultation with the States and appropriate Federal agencies. (2) Report. — The report required by this subsection shall include the Administrator's findings regarding each of the following: (A) The status of current technological capabilities to (i) monitor, detect, and prevent, in a timely manner, signifi- cant releases of extremely hazardous substances, (ii) deter- Report.s. 124 100 STAT. 1736 PUBLIC LAW 99-499— OCT. 17, 1986 mine the magnitude and direction of the hazard posed by each release, (iii) identify specific substances, (iv) provide data on the specific chemical composition of such releases, and (v) determine the relative concentrations of the constituent substances. (B) The status of public emergency alert devices or sys- tems for providing timely and effective public warning of an accidental release of extremely hazardous substances into the environment, including releases into the at- mosphere, surface water, or groundwater from facilities that produce, store, or use significant quantities of such extremely hazardous substances. (C) The technical and economic feasibility of establishing, maintaining, and operating perimeter alert systems for detecting releases of such extremely hazardous substances into the atmosphere, surface water, or groundwater, at facilities that manufacture, use, or store significant quan- tities of such substances. Reports. (3) RECOMMENDATIONS. — The report required by this subsec- tion shgdl also include the Administrator's recommendations for— (A) initiatives to support the development of new or improved technologies or systems that would facilitate the timely monitoring, detection, and prevention of releases of extremely hazardous substances, and (B) improving devices or systems for effectively alerting the public in a timely manner, in the event of an accidental release of such extremely hazardous substances. Subtitle B— Reporting Requirements 42 use 1 1021 SEC. 31 1. MATERIAL SAFETY DATA SHEETS. (a) Basic Requirement. — (1) Submission of msds or list. — The owner or operator of any facility which is required to prepare or have available a material safety data sheet for a hazardous chemical under the Occupational Safety and Health Act of 1970 and regulations 29 use 651 note. promulgated under that Act (15 U.S.C. 651 et seq.) shall submit a material safety data sheet for each such chemical, or a list of such chemicals as described in paragraph (2), to each of the following: (A) The appropriate local emergency planning committee. (B) The State emergency response commission. (C) The fire department with jurisdiction over the facility. (2) Contents of ust.— (A) The list of chemicals referred to in paragraph (1) shall include each of the following: Regulations. (i) A list of the hazardous chemicals for which a material safety data sheet is required under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act, grouped in categories of health and physical hazards as set forth under such Act and regulations promulgated under such Act, or in such other categories as the Administrator may prescribe under subparagraph (B). (ii) The chemical name or the common name of each such chemical as provided on the material safety data sheet. 125 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1737 (iii) Any hazardous component of each such chemical as provided on the material safety data sheet. (B) For purposes of the list under this paragraph, the Administrator may modify the categories of health and physical hazards as set forth under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act by requiring information to be reported in terms of groups of hazardous chemicals which present similar hazards in an emergency. (3) Treatment of mixtures. — An owner or operator may meet the requirements of this section with respect to a hazard- ous chemical which is a mixture by doing one of the following: (A) Submitting a material safety data sheet for, or identi- fying on a list, each element or compound in the mixture which is a hazardous chemical. If more than one mixture has the same element or compound, only one material safety data sheet, or one listing, of the element or compound is necessary. (B) Submitting a material safety data sheet for, or identi- fying on a list, the mixture itself. (b) Thresholds.— The Administrator may establish threshold quantities for hazardous chemicals below which no facility shall be subject to the provisions of this section. The threshold quantities may, in the Administrator's discretion, be based on classes of chemi- cals or cat^ories of facilities. (c) Availability of MSDS on Request.— (1) To local emergency planning committee.— If an owner or operator of a facility submits a list of chemicals under subsection (aXD, the owner or operator, upon request by the local emergency planning committee, shall submit the material safety data sheet for any chemical on the list to such committee. (2) To PUBUC. — A local emergency planning committee, upon request by any person, shall make available a material safety data sheet to the person in accordance with section 324. If the local emergency planning committee does not have the re- quested material safety data sheet, the committee shall request the sheet from the facility owner or operator and then make the sheet available to the person in accordance with section 324. (d) Initial Submission and Updating.— (1) The initial material safety data sheet or list required under this section with respect to a hazardous chemical shall be provided before the later of^ (A) 12 months after the date of the enactment of this title, or (B) 3 months after the owner or operator of a facility is required to prepare or have available a material safety data sheet for the chemical under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act. (2) Within 3 months following discovery by an owner or operator of significant new information concerning an aspect of a hazardous chemical for which a material safety data sheet was previously submitted to the local emergency planning committee under subsec- tion (a), a revised sheet shall be provided to such person. (e) Hazardous Chemical Defined.— For purposes of this section, the term "hazardous chemical" has the meaning given such term by section 1910.1200(c) of title 29 of the Code of Federal Regulations, except that such term does not include the following: (1) Any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration. Reports. 29 use 651 note. 29 use 651 note. 126 100 STAT. 1738 PUBLIC LAW 99-499— OCT. 17, 1986 (2) Any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use. (3) Any substance to the extent it is used for personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public. (4) Any substance to the extent it is used in a research laboratory or a hospital or other medical facility under the direct supervision of a technically qualified individual. (5) Any substance to the extent it is used in routine agricul- tural operations or is a fertilizer held for sale by a retailer to the ultimate customer. 42 use 11022 SEC. 312. EMERGENCY AND HAZARDOUS CHEMICAL INVENTORY FORMS. (a) Basic Requirement.— (1) The owner or operator of any facility which is required to prepare or have available a material safety data sheet for a hazardous chemical under the Occupational Safety and 29 use 651 note. Health Act of 1970 and regulations promulgated under that Act shall prepare and submit an emergency and hazardous chemical inventory form (hereafter in this title referred to as an "inventory form") to each of the following: (A) The appropriate local emergency planning committee. (B) The State emergency response commission. (C) The fire department with jurisdiction over the facility. (2) The inventory form containing tier I information (as described in subsection (dXD) shall be submitted on or before March 1, 1988, and annually thereafter on March 1, and shall contain data with respect to the preceding calendar year. The preceding sentence does not apply if an owner or operator provides, by the same deadline and with respect to the same calendar year, tier II information (as described in subsection (dX2)) to the recipients described in para- graph (1). (3) An owner or operator may meet the requirements of this section with resp)ect to a hazardous chemical which is a mixture by doing one of the following: (A) Providing information on the inventory form on each element or compound in the mixture which is a hazardous chemical. If more than one mixture has the same element or compound, only one listing on the inventory form for the ele- ment or compound at the facility is necessary. (B) Providing information on the inventory form on the mix- ture itself. (b) Thresholds. — The Administrator may establish threshold quantities for hazardous chemicals covered by this section below which no facility shall be subject to the provisions of this section. The threshold quantities may, in the Administrator's discretion, be based on classes of chemicals or categories of facilities. (c) Hazardous Chemicals Covered. — A hazardous chemical sub- ject to the requirements of this section is any hazardous chemical for which a material safety data sheet or a listing is required under section 311. (d) Contents of Form. — (1) Tier i information.— (A) Aggregate information by category. — An inven- tory form shall provide the information described in subparagraph (B) in aggregate terms for hazardous chemi- 127 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1739 cals in categories of health and physical hazards as set forth under the Occupational Safety and Health Act of 1970 and 29 USC 651 note. regulations promulgated under that Act. (B) Required information.— The information referred to in subparagraph (A) is the following: (i) An estimate (in ranges) of the maximum amount of hazardous chemicals in each category present at the facility at any time during the preceding calendar year. (ii) An estimate (in ranges) of the average daily amount of hazardous chemicals in each category present at the facility during the preceding calendar year. (iii) The general location of hazardous chemicals in each category. (C) Modifications.— For purposes of reporting informa- tion under this paragraph, the Administrator may— (i) modify the categories of health and physical haz- Regulations, ards as set forth under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act by requiring information to be reported in terms of groups of hazardous chemicals which present similar hazards in an emergency, or , . , (ii) require reporting on individual hazardous chemicals of special concern to emergency response personnel. (2) Tier ii information.— An inventory form shall provide the following additional information for each hazardous chemical present at the facility, but only upon request and in accordance with subsection (e): (A) The chemical name or the common name of the chemical as provided on the material safety data sheet. (B) An estimate (in ranges) of the maximum amount of the hazardous chemical present at the facility at any time during the preceding calendar year. (C) An estimate (in ranges) of the average daily amount of the hazardous chemical present at the facility during the preceding calendar year. (D) A brief description of the manner of storage of the hazardous chemical. (E) The location at the facility of the hazardous chemical. (F) An indication of whether the owner elects to withhold location information of a specific hazardous chemical from disclosure to the public under section 324. (e) Availability of Tier II Information — (1) Availability to state commissions, local committees, AND FIRE departments.— Upon request by a State emergency planning commission, a local emergency planning committee, or a fire department with jurisdiction over the facility, the owner or operator of a facility shall provide tier II information, as described in subsection (d), to the person making the request. Any such request shall be with respect to a specific facility. (2) Availabiuty to other state and local officials.— a State or local official acting in his or her official capacity may have access to tier II information by submitting a request to the State emergency response commission or the local emergency planning committee. Upon receipt of a request for tier II information, the State commission or local committee shall. 128 100 STAT. 1740 PUBLIC LAW 99-499— OCT. 17, 1986 pursuant to paragraph (1), request the facility owner or opera- tor for the tier II information and make available such informa- tion to the official. (3) AVAILABIUTY TO PUBLIC. — (A) In general. — Any person may request a State emer- gency response commission or local emergency planning committee for tier II information relating to the preceding calendar year with respect to a facility. Any such request shall be in writing and shall be with respect to a specific facility. (B) Automatic provision of information to pubuc. — Any tier II information which a State emergency response commission or local emergency planning committee has in its possession shall be made available to a person making a request under this paragraph in accordance with section 324. If the State emergency response commission or local emergency planning committee does not have the tier II information in its possession, upon a request for tier II information the State emergency response commission or local emergency planning committee shall, pursuant to paragraph (1), request the facility owner or operator for tier II information with respect to a hazardous chemical which a facility has stored in an amount in excess of 10,000 pounds present at the facility at any time during the preceding calendar year and make such information avail- able in accordance with section 324 to the person making the request. (C) Discretionary provision of information to pubuc. — In the case of tier II information which is not in the possession of a State emergency response commission or local emergency planning committee and which is with respect to a hazardous chemical which a facility has stored in an amount less than 10,000 pounds present at the facility at any time during the preceding calendar year, a request from a person must include the general need for the information. The State emergency response commission or local emergency planning committee may, pursuant to paragraph (1), request the facility owner or operator for the tier II information on behalf of the person making the request. Upon receipt of any information requested on behalf of such person, the State emergency response commission or local emergency planning committee shall make the information available in accordance with section 324 to the person. (D) Response in 45 days. — A State emergency response commission or local emergency planning committee shall respond to a request for tier II information under this paragraph no later than 45 days after the date of receipt of the request. (0 Fire Department Access. — Upon request to an owner or opera- tor of a facility which files an inventory form under this section by the fire department with jurisdiction over the facility, the owner or operator of the facility shall allow the fire department to conduct an on-site inspection of the facility and shall provide to the fire depart- ment specific location information on hazardous chemicals at the facility. 129 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1741 (g) Format of Forms. — The Administrator shall publish a uni: form format for inventory forms within three months after the date of the enactment of this title. If the Administrator does not publish such forms, owners and operators of facilities subject to the require- ments of this section shall provide the information required under this section by letter. SEC. 313. TOXIC CHEMICAL RELEASE FORMS. (a) Basic Requirement.— The owner or operator of a facility subject to the requirements of this section shall complete a toxic chemical release form as published under subsection (g) for each toxic chemical listed under subsection (c) that was manufactured, processed, or otherwise used in quantities exceeding the toxic chemi- cal threshold quantity established by subsection (f) during the preceding calendar year at such facility. Such form shall be submit- ted to the Administrator and to an official or officials of the State designated by the Governor on or before July 1, 1988, and annually thereafter on July 1 and shall contain data reflecting releases during the preceding calendar year. (b) Covered Owners and Operators of Facilities.— (1) In general.— (A) The requirements of this section shall apply to ov/ners and operators of facilities that have 10 or more full-time employees and that are in Standard Industrial Classi- fication Codes 20 through 39 (as in effect on July 1, 1985) and that manufactured, processed, or otherwise used a toxic chemi- cal listed under subsection (c) in excess of the quantity of that toxic chemical established under subsection (0 during the cal- endar year for which a release form is required under this section. (B) The Administrator may add or delete Standard Industrial Classification Codes for purposes of subparagraph (A), but only to the extent necessary to provide that each Standard Industrial Code to which this section applies is relevant to the purposes of this section. (C) For purposes of this section — (i) The term "manufacture" means to produce, prepare, import, or compound a toxic chemical. (ii) The term "process" means the preparation of a toxic chemical, after its manufacture, for distribution in commerce — (I) in the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such chemical, or (II) as part of an article containing the toxic chemical. (2) Discretionary application to additional faciuties.— The Administrator, on his own motion or at the request of a Governor of a State (with regard to facilities located in that State), may apply the requirements of this section to the owners and operators of any particular facility that manufactures, processes, or otherwise uses a toxic chemical listed under subsection (c) if the Administrator determines that such action is warranted on the basis of toxicity of the toxic chemical, proximity to other facilities that release the toxic chemical or to population centers, the history of releases of such chemical at 42 use 11023. 130 100 STAT. 1742 PUBLIC LAV/ 99-499— OCT. 17, 1986 Science and technology. Research and development. such facility, or such other factors as the Administrator deems appropriate. (c) Toxic Chemicals Covered.— The toxic chemicals subject to the rvquirements of this section are those chemicals on the list in Committee Print Number 99-169 of the Senate Committee on Environment and Public Works, titled "Toxic Chemicals Subject to Section 313 of the Emergency Planning and Community Right-To- Know Act of 1986" (including any revised version of the list as may be made pursuant to subsection (d) or (e)). (d) Revisions by Administrator. — (1) In general— The Administrator may by rule add or delete a chemical from the list described in subsection (c) at any time. (2) Additions.— A chemical may be added if the Adminis- trator determines, in his judgment, that there is sufficient evidence to establish any one of the following: (A) The chemical is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases. (B) The chemical is known to cause or can reasonably be anticipated to cause in humans — (i) cancer or teratogenic effects, or (ii) serious or irreversible — (I) reproductive dysfunctions, (II) neurological disorders, (III) heritable genetic mutations, or (IV) other chronic health effects. (C) The chemical is known to cause or can reasonably be anticipated to cause, because of— (i) its toxicity, (ii) its toxicity and persistence in the environment, or (iii) its toxicity and tendency to bioaccumulate in the environment, a significant adverse effect on the environment of sufficient seriousness, in the judgment of the Administrator, to war- rant reporting under this section. The number of chemicals included on the list described in subsection (c) on the basis of the preceding sentence may constitute in the aggregate no more than 25 percent of the total number of chemicals on the list. A determination under this paragraph shall be based on generally accepted scientific principles or laboratory tests, or appropriately designed and conducted epidemiological or other population studies, available to the Administrator. (3) Deletions. — A chemical may be deleted if the Adminis- trator determines there is not sufficient evidence to establish any of the criteria described in paragraph (2). (4) Effective date. — Any revision made on or after January 1 and before December 1 of any calendar year shall take effect beginning with the next calendar year. Any revision made on or after December 1 of any calendar year and before January 1 of the next calendar year shall take effect beginning with the calendar year following such next calendar year. (e) Petitions.— 131 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1743 (1) In general.— Any person may petition the Administrator to add or delete a chemical from the list described in subsection (c) on the basis of the criteria in subparagraph (A) or (B) of subsection (d)(2). Within 180 days after receipt of a petition, the Administrator shall take one of the following actions: (A) Initiate a rulemaking to add or delete the chemical to the list, in accordance with subsection (d)(2) or (d)(3). (B) Publish an explanation of why the petition is denied. (2) Governor petitions.— A State Governor may petition the Administrator to add or delete a chemical from the list de- scribed in subsection (c) on the basis of the criteria in subpara- graph (A), (B), or (C) of subsection (d)(2). In the case of such a petition from a State Governor to delete a chemical, the petition shall be treated in the same manner as a petition received under paragraph (1) to delete a chemical. In the case of such a petition from a State Governor to add a chemical, the chemical will be added to the list within 180 days after receipt of the petition, unless the Administrator— (A) initiates a rulemaking to add the chemical to the list, in accordance with subsection (d)(2), or (B) publishes an explanation of why the Administrator believes the petition does not meet the requirements of subsection (d)(2) for adding a chemical to the list. (f) Threshold for Reporting.— (1) Toxic chemical threshold amount.— The threshold amounts for purposes of reporting toxic chemicals under this section are as follows: (A) With respect to a toxic chemical used at a facility, 10,000 pounds of the toxic chemical per year. (B) With respect to a toxic chemical manufactured or processed at a facility — (i) For the toxic chemical release form required to be submitted under this section on or before July 1, 1988, 75,000 pounds of the toxic chemical per year. (ii) For the form required to be submitted on or before July 1, 1989, 50,000 pounds of the toxic chemical per year. (iii) For the form required to be submitted on or before July 1, 1990, and for each form thereafter, 25,000 pounds of the toxic chemical per year. (2) Revisions.— The Administrator may establish a threshold amount for a toxic chemical different from the amount estab- lished by paragraph (1). Such revised threshold shall obtain reporting on a substantial majority of total releases of the chemical at all facilities subject to the requirements of this section. The amounts established under this paragraph may, at the Administrator's discretion, be based on classes of chemicals or categories of facilities. (1) Information required.— Not later than June 1, 1987, the Administrator shall publish a uniform toxic chemical release form for facilities covered by this section. If the Administrator does not publish such a form, owners and operators of facilities subject to the requirements of this section shall provide the information required under this subsection by letter post- marked on or before the date on which the form is due. Such form shall — Public information. 132 100 STAT. 1744 PUBLIC LAW 99-499— OCT. 17, 1986 Public information. (A) provide for the name and location of, and principal business activities at, the facility; (B) include an appropriate certification, signed by a senior official with management responsibility for the person or persons completing the report, regarding the accuracy and completeness of the report; and (C) provide for submission of each of the following items of information for each listed toxic chemical known to be present at the facility: (i) Whether the toxic chemical at the facility is manu- factured, processed, or otherwise used, and the general category or categories of use of the chemical. (ii) An estimate of the maximum amounts (in ranges) of the toxic chemical present at the facility at any time during the preceding calendar year. (iii) For each wastestream, the waste treatment or disposal methods employed, and an estimate of the treatment efficiency typically achieved by such meth- ods for that wastestream. (iv) The annual quantity of the toxi" chemical enter- ing each environmental medium. (2) Use of available data. — In order to provide the informa- tion required under this section, the owner or operator of a facility may use readily available data (including monitoring data) collected pursuant to other provisions of law, or, where such data are not readily available, reasonable estimates of the amounts involved. Nothing in this section requires the monitor- ing or measurement of the quantities, concentration, or fre- quency of any toxic chemical released into the environment beyond that monitoring and measurement required under other provisions of law or regulation. In order tc assure consistency, the Administrator shall require that data be expressed in common units, (h) Use of Release Form. — The release forms required under this section are intended to provide information to the Federal, State, and local governments and the public, including citizens of commu- nities surrounding covered facilities. The release form shall be available, consistent with section 324(a), to inform persons about releases of toxic chemicals to the environment; to assist govern- mental agencies, researchers, and other persons in the conduct of research and data gathering; to aid in the development of appro- priate regulations, guidelines, and standards; and for other similar purposes, (i) Modifications in Reporting Frequency.— (1) In general. — The Administrator may modify the fre- quency of submitting a report under this section, but the Administrator may not modify the frequency to be any more often than annually. A modification may apply, either nation- ally or in a specific geographic area, to the following: (A) All toxic chemical release forms required under this section. (B) A class of toxic chemicals or a category of facilities. (C) A specific toxic chemical. (D) A specific facility. (2) Requirements. — A modification may be made under para- graph (1) only if the Administrator— 133 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1745 (A) makes a finding that the modification is consistent with the provisions of subsection (h), based on— (i) experience from previously submitted toxic chemi- cal release forms, and (ii) determinations made under paragraph (3), and (B) the finding is made by a rulemaking in accordance with section 553 of title 5, United States Code. (3) Determinations.— The Administrator shall make the fol- lowing determinations with respect to a proposed modification before making a modification under paragraph (1): (A) The extent to which information relating to the pro- posed modification provided on the toxic chemical release forms has been used by the Administrator or other agencies of the Federal Government, States, local governments, health professionals, and the public. (B) The extent to which the information is (i) readily available to potential users from other sources, such as State reporting programs, and (ii) provided to the Adminis- trator under another Federal law or through a State program. . (C) The extent to which the modification would impose additional and unreasonable burdens on facilities subject to the reporting requirements under this section. (4) 5-YEAR REVIEW. — Any modification made under this subsec- tion shall be reviewed at least once every 5 years. Such review shall examine the modification and ensure that the require- ments of paragraphs (2) and (3) still justify continuation of the modification. Any change to a modification reviewed under this paragraph shall be made in accordance with this subsection. (5) Notification to congress.— The Administrator shall notify Congress of an intention to initiate a rulemaking for a modification under this subsection. After such notification, the Administrator shall delay initiation of the rulemaking for at least 12 months, but no more than 24 months, after the date of such notification. (6) Judicial review.— In any judicial review of a rulemaking which establishes a modification under this subsection, a court may hold unlawful and set aside agency action, findings, and conclusions found to be unsupported by substantial evidence. (7) Applicability.— A modification under this subsection may apply to a calendar year or other reporting period beginning no earlier than January 1, 1993. (8) Effective date. — Any modification made on or after Janu- ary 1 and before December 1 of any calendar year shall take effect beginning with the next calendar year. Any modification made on or after December 1 of any calendar year and before January 1 of the next calendar year shall take effect beginning with the calendar year following such next calendar year. (j) EPA Management of Data.— The Administrator shall estab- lish and maintain in a computer data base a national toxic chemical inventory based on data submitted to the Administrator under this section. The Administrator shall make these data accessible by computer telecommunication and other means to any person on a cost reimbursable basis. (k) Report.— Not later than June 30, 1991, the Comptroller Gen- eral, in consultation with the Administrator and appropriate offi- Communications and tele- communications. 134 100 STAT. 1746 PUBLIC LAW 99-499— OCT. 17, 1986 Reports. 1 State and local governments. Public information. Classified information. cials in the States, shall submit to the Congress a report including each of the following: (DA description of the steps taken by the Administrator and the States to implement the requirements of this section, includ- ing steps taken to make information collected under this section available to and accessible by the public. (2) A description of the extent to which the information collected under this section has been used by the Environmental Protection Agency, other Federal agencies, the States, and the public, and the purposes for which the information has been used. (3) An identification and evaluation of options for modifica- tions to the requirements of this section for the purpose of making information collected under this section more useful. (1) Mass Balance Study. — (1) In general. — The Administrator shall arrange for a mass balance study to be carried out by the National Academy of Sciences using mass balance information collected by the Administrator under paragraph (3). The Administrator shall submit to Congress a report on such study no later than 5 years after the date of the enactment of this title. (2) Purposes. — The purposes of the study are as follows: (A) To assess the value of mass balance analysis in deter- mining the accuracy of information on toxic chemical releases. (B) To assess the value of obtaining mass balance information, or portions thereof, to determine the waste reduction efficiency of different facilities, or categories of facilities, including the effectiveness of toxic chemical regu- lations promulgated under laws other than this title. (C) To assess the utility of such information for evaluat- ing toxic chemical management practices at facilities, or categories of facilities, covered by this section. (D) To determine the implications of mass balance information collection on a national scale similar to the mass balance information collection carried out by the Administrator under paragraph (3), including implications of the use of sucli collection as part of a national annual quantity toxic chemical release program. (3) Information collection. — (A) The Administrator shall acquire available mass balance information from States which currently conduct (or during the 5 years after the date of enactment of this title initiate) a mass balance-oriented annual quantity toxic chemical release program. If information from such States provides an inadequate representation of industry classes and categories to carry out the purposes of the study, the Administrator also may acquire mass balance information nec- essary for the study from a representative number of facilities in other States. (B) Any information acquired under this section shall be available to the public, except that upon a showing satisfactory to the Administrator by any person that the information (or a particular part thereof) to which the Administrator or any officer, employee, or representative has access under this sec- tion if made public would divulge information entitled to protec- tion under section 1905 of title 18, United States Code, such information or part shall be considered confidential in accord- 135 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1747 ance with the purposes of that section, except that such information or part may be disclosed to other officers, employ- ees, or authorized representatives of the United States concerned with carrying out this section. (C) The Administrator may promulgate regulations prescrib- ing procedures for collecting mass balance information under this paragraph. (D) For purposes of collecting mass balance information under subparagraph (A), the Administrator may require the submis- sion of information by a State or facility. (4) Mass balance definitign. — For purposes of this subsec- tion, the term "mass balance" means an accumulation of the annual quantities of chemicals transported to a facility, pro- duced at a facility, consumed at a facility, used at a facility, accumulated at a facility, released from a facility, and trans- ported from a facility as a waste or as a commercial product or byproduct or component of a commercial product or byproduct. Subtitle C— General Provisions Regulations. State and local governments. SEC. 321. RELATIONSHIP TO OTHER LAW. (a) In General.— Nothing in this title shall— (1) preempt any State or local law,. (2) except as provided in subsection (b), otherwise affect any State or local law or the authority of any State or local govern- ment to adopt or enforce any State or local law, or (3) affect or modify in any way the obligations or liabilities of any person under other Federal law. (b) Effect on MSDS Requirements.— Any State or local law enacted after August 1, 1985, which requires the submission of a material safety data sheet from facility owners or operators shall require that the data sheet be identical in content and format to the data sheet required under subsection (a) of section 311. In addition, a State or locality may require the submission of information which is supplemental to the information required on the data sheet (includ- ing information on the location and quantity of hazardous chemicals present at the facility), through additional sheets attached to the data sheet or such other means as the State or locality considers appropriate. SEC. 322. TRADE SECRETS. (a) Authority To Withhold Information. — (1) General authority.— (A) With regard to a hazardous chemical, an extremely hazardous substance, or a toxic chemi- cal, any person required under section 303(dX2), 303(dX3), 311, 312, or 313 to submit information to any other person may \yithhold from such submittal the specific chemical identity (including the chemical name and other specific identification), as defined in regulations prescribed by the Administ.rator under subsection (c), if the person complies with paragraph (2). (B) Any person withholding the specific chemical identity shall, in the place on the submittal where the chemical identity would normally be included, include the generic class or cat- egory of the hazardous chemical, extremely hazardous sub- stance, or toxic chemical (as the case may be). (2) Requirements.— (A) A person is entitled to withhold information under paragraph (1) if such person- State and local governments. 42 use 11041. Classified information. Claims. 42 use 11042. 136 100 STAT. 1748_^^^ ^^ ^ PUBLIC LAW 99-499— OCT. 17, 1986 (i) claims that such information is a trade secret, on the basis of the factors enumerated in subsection (b), (ii) includes in the submittal referred to in paragraph (1) an explanation of the reasons why such information is claimed to be a trade secret, based on the factors enumer- ated in subsection (b), including a specific description of why such factors apply, and (iii) submits to the Administrator a copy of such submit- tal, and the information withheld from such submittal. (B) In submitting to the Administrator the information re- quired by subparagraph (AXiii), a person withholding informa- tion under this subsection may — (i) designate, in writing and in such manner as the Administrator may prescribe by regulation, the informa- tion which such person believes is entitled to be withheld under paragraph (1), and (ii) submit such designated information separately from other information submitted under this subsection. (3) Limitation. — The authority under this subsection to with- hold information shall not apply to information which the Administrator has determined, in accordance with subsection (c), is not a trade secret. (b) Trade Secret Factors.— No person required to provide information under this title may claim that the information is entitled to protection as a trade secret under subsection (a) unless such person shows each of the following: (1) Such person has not disclosed the information to any other person, other than a member of a local emergency planning committee, an officer or employee of the United States or a State or local government, an employee of such person, or a person who is bound by a confidentiality agreement, and such person has taken reasonable measures to protect the confiden- tiality of such information and intends to continue to take such measures. (2) The information is not required to be disclosed, or other- wise made available, to the public under any other Federal or State law. (3) Disclosure of the information is likely to cause substantial harm to the competitive position of such person. (4) The chemical identity is not readily discoverable through reverse engineering. (c) Trade Secret Regulations. — As soon as practicable after the date of enactment of this title, the Administrator shall prescribe regulations to implement this section. With respect to subsection (bX4), such regulations shall be equivalent to comparable provisions in the Occupational Safety and Health Administration Hazard Communication Standard (29 C.F.R. 1910.1200) and any revisions of such standard prescribed by the Secretary of Labor in accordance with the final ruling of the courts of the United States in United Steelworkers of America, AFL-CIO-CLC v. Thorne G. Auchter. (d) Petition for Review. — (1) In general. — Any person may petition the Administrator for the disclosure of the specific chemical identity of a hazard- ous chemical, an extremely hazardous substance, or a toxic chemical which is claimed as a trade secret under this section. The Administrator may, in the absence of a petition under this paragraph, initiate a determination, to be carried out in accord- 137 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1749 ance with this subsection, as to whether information withheld constitutes a trade secret. (2) Initial review.— Within 30 days after the date of receipt of a petition under paragraph (1) (or upon the Administrator's initiative), the Administrator shall review the explanation filed by a trade secret claimant under subsection (aK2) and determine whether the explanation presents assertions which, if true, are sufficient to support a finding that the specific chemical identity is a trade secret. (3) Finding of sufficient assertions. — (A) If the Administrator determines pursuant to para- graph (2) that the explanation presents sufficient assertions to support a finding that the specific chemical identity is a trade secret, the Administrator shall notify the trade secret claimant that he has 30 days to supplement the explanation with detailed information to support the assertions. (B) If the Administrator determines, after receipt of any supplemental supporting detailed information under subparagraph (A), that the assertions in the explanation are true and that the specific chemical identity is a trade secret, the Administrator shall so notify the petitioner and the petitioner may seek judicial review of the determination. (C) If the Administrator determines, after receipt of any supplemental supporting detailed information under subparagraph (A)., that the assertions in the explanation are not true and that the specific chemical identity is not a trade secret, the Administrator shall notify the trade secret claimant that the Administrator intends to release the specific chemical identity. The trade secret claimant has 30 days in which he may appeal the Administrator's deter- mination under this subparagraph to the Administrator. If the Administrator does not reverse his determination under this subparagraph in such an appeal by the trade secret claimant, the trade secret claimaint may seek judicial review of the determination. (4) Finding of insufficient assertions — (A) If the Administrator determines pursuant to para- graph (2) that the explanation presents insufficient asser- tions to support a finding that the specific chemical identity is a trade secret, the Administrator shall notify the trade secret claimant that he has 30 days to appeal the deter- mination to the Administrator, or, upon a showing of good cause, amend the original explanation by providing supple- mentary assertions to support the trade secret claim. (B) If the Administrator does not reverse his determina- tion under subparagraph (A) after an appeal or an examina- tion of any supplementary assertions under subparagraph (A), the Administrator shall so notify the trade secret claim- ant and the trade secret claimant may seek judicial review of the determination. (C) If the Administrator reverses his determination under subparagraph (A) after an appeal or an examination of any supplementary assertions under subparagraph (A), the procedures under paragraph (3) of this subsection apply. (e) Exception for Information Provided to Health Profes- sionals.— Nothing in this section, or regulations adopted pursuant 138 100 STAT. 1750 PUBLIC LAW 99-499— OCT. 17, 1986 Health and medical care. Classified information. 42 use 11043. to this section, shall authorize any person to withhold information which is required to be provided to a health professional, a doctor, or a nurse in accordance with section 323. (f) Providing Information to the Administrator; Availability TO Public. — Any information submitted to the Administrator under subsection (a)(2) or subsection (d)(3) (except a specific chemical iden- tity) shall be available to the public, except that upon a showing satisfactory to the Administrator by any person that the informa- tion (or a particular part thereof) to which the Administrator has access under this section if made public would divulge information entitled to protection under section 1905 of title 18, United States Code, such information or part shall be considered confidential in accordance with the purposes of that section, except that such information or part may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this title. (g) Information Provided to State.— Upon request by a State, acting through the Governor of the State, the Administrator shall provide to the State any information obtained under subsection (a)(2) and subsection (d)(3). (h) Information on Adverse Effects. — (1) In any case in which the identity of a hazardous chemical or an extremely hazardous substance is claimed as a trade secret, the Governor or State emergency response commission established under section 301 shall identify the adverse health effects associated with the hazardous chemical or extremely hazardous substance and shall assure that such information is provided to any person requesting information about such hazardous chemical or extremely hazardous substance. (2) In any case in which the identity of a toxic chemical is claimed as a trade secret, the Administrator shall identify the adverse health and environmental effects associated with the toxic chemical and shall assure that such information is included in the computer database required by section 313(j) and is provided to any person requesting information about such toxic chemical. (i) Information Provided to Congress.— Notwithstanding any limitatio contained in this section or any other provision of law, all information reported to or otherwise obtained by the Administrator (or any representative of the Administrator) under this title shall be made available to a duly authorized committee of the Congress upon written request by such a committee. SEC. 323. PROVISION OF INFORMATION TO HEALTH PROFESSIONALS. DOCTORS, AND NURSES. (a) Diagnosis or Treatment by Health Professional.— An owner or operator of a facility which is subject to the requirements of section 311, 312, or 313 shall provide the specific chemical iden- tity, if known, of a hazardous chemical, extremely hazardous sub- stance, or a toxic chemical to any health professional who requests such information in writing if the health professional provides a written statement of need under this subsection and a written confidentiality agreement under subsection (d). The written state- ment of need shall be a statement that the health professional has a reasonable basis to suspect that — (1) the information is needed for purposes of diagnosis or treatment of an individual, (2) the individual or individuals being diagnosed or treated have been exposed to the chemical concerned, and 139 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1751 (3) knowledge of the specific chemical identity of such chemi- cal will assist in diagnosis or treatment. Following such a written request, the owner or operator to whom such request is made shall promptly provide the requested informa- tion to the health professional. The authority to withhold the spe- cific chemical identity of a chemical under section 322 when such information is a trade secret shall not apply to information required to be provided under this subsection, subject to the provisions of subsection (d). (b) Medical Emergency. — An owner or operator of a facility which is subject to the requirements of section 311, 312, or 313 shall provide a copy of a material safety data sheet, an inventory form, or a toxic chemical release form, including the specific chemical iden- tity, if known, of a hazardous chemical, extremely hazardous sub- stance, or a toxic chemical, to any treating physician or nurse who requests such information if such physician or nurse determines that— (Da medical emergency exists, (2) the specific chemical identity of the chemical concerned is necessary for or will assist in emergency or first-aid diagnosis or treatment, and (3) the individual or individuals being diagnosed or treated have been exposed to the chemical concerned. Immediately following such a request, the owner or operator to whom such request is made shall provide the requested information to the physician or nurse. The authority to withhold the specific chemical identity of a chemical from a material safety data sheet, an inventory form, or a toxic chemical release form under section 322 when such information is a trade secret shall not apply to information required to be provided to a treating physician or nurse under this subsection. No written confidentiality agreement or statement of need shall be required as a precondition of such disclosure, but the owner or operator disclosing such information may require a written confidentiality agreement in accordance with subsection (d) and a statement setting forth the items listed in paragraphs (1) through (3) as soon as circumstances permit. (c) Preventive Measures by Local Health Professionals.— (1) Provision of information. — An owner or operator of a ' facility subject to the requirements of section 311, 312, or 313 shall provide the specific chemical identity, if known, of a hazardous chemical, an extremely hazardous substance, or a toxic chemical to any health professional (such as a physician, toxicologist, or epidemiologist)— (A) who is a local government employee or a person under contract with the local government, and (B) who requests such information in writing and pro- vides a written statement of need under paragraph (2) and a written confidentiality agreement under subsection (d). Following such a written request, the owner or operator to whom such request is made shall promptly provide the re- quested information to the local health professional. The authority to withhold the specific chemical identity of a chemi cal under section 322 when such information is a trade secret shall not apply to information required to be provided under this subsection, subject to the provisions of subsection (d). 140 100 STAT. 1752 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 11044. (2) Written statement of need.— The written statement of need shall be a statement that describes with reasonable detail one or more of the following health needs for the information: (A) To assess exposure of persons living in a local commu- nity to the hazards of the chemical concerned. (B) To conduct or assess sampling to determine exposure levels of various population groups. (C) To conduct periodic medical surveillance of exposed population groups. (D) To provide medical treatment to exposed individuals or population groups. (E) To conduct studies to determine the health effects of exposure. (F) To conduct studies to aid in the identification of a chemical that may reasonably be anticipated to cause an observed health effect. (d) Confidentiality Agreement.— Any person obtaining informa- tion under subsection (a) or (c) shall, in accordance with such subsection (a) or (c), be required to agree in a written confidentiality agreement that he will not use the information for any purpose other than the health needs asserted in the statement of need, except as may otherwise be authorized by the terms of the agree- ment or by the person providing such information. Nothing in this subsection shall preclude the parties to a confidentiality agreement from pursuing any remedies to the extent permitted by law. (e) Regulations.— As soon as practicable after the date of the enactment of this title, the Administrator shall promulgate regula- tions describing criteria and parameters for the statement of need under subsection (a) and (c) and the confidentiality agreement under subsection (d). SEC. 324. PUBLIC AVAILABILITY OF PLANS. DATA SHEETS. FORMS. AND FOLLOWUP NOTICES. (a) Availability to Pubuc. — Each emergency response plan, material safety data sheet, list described in section 311(a)(2), inven- tory form, toxic chemical release form, and followup emergency notice shall be made available to the general public, consistent with section 322, during normal working hours at the location or loca- tions designated by the Administrator, Governor, State emergency response commission, or local emergency planning committee, as appropriate. Upon request by an owner or operator of a facility subject to the requirements of section 312, the State emergency response commission and the appropriate local emergency planning committee shall withhold from disclosure under this section the location of any specific chemical required by section 312(d)(2) to be contained in an inventory form as tier II information. (b) Notice of Public Availability.— Each local emergency plan- ning committee shall annually publish a notice in local newspapers that the emergency response plan, material safety data sheets, and inventory forms have been submitted under this section. The notice shall state that followup emergency notices may subsequently be issued. Such notice shall announce that members of the public who wish to review any such plan, sheet, form, or followup notice may do so at the location designated under subsection (a). 141 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1753 SEC. 325. ENFORCEMENT. 42 use 11045. (a) Civil Penalties for Emergency Planning.— The Adminis- trator may order a facility owner or operator (except an owner or operator of a facility designated under section 302(bX2)) to comply with section 302(c) and section 303(d). The United States district court for the district in which the facility is located shall have jurisdiction to enforce the order, and any person who violates or fails to obey such an order shall be liable to the United States for a civil penalty of not more than $25,000 for each day in which such violation occurs or such failure to comply continues. (b) Civil, Administrative, and Criminal Penalties for Emer- gency Notification.— (1) Class i administrative penalty.— (A) A civil penalty of not more than $25,000 per violation may be assessed by the Administrator in the case of a violation of the requirements of section 304. (B) No civil penalty may be assessed under this subsection unless the person accused of the violation is given notice and opportunity for a hearing with respect to the violation. (C) In determining the amount of any penalty assessed pursu- ant to this subsection, the Administrator shall take into account the nature, circumstances, extent and gravity of the violation or violations and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability, eco- nomic benefit or savings (if any) resulting from the violation, and such other matters as justice may require. (2) Class ii administrative penalty.— A civil penalty of not more than $25,000 per day for each day during which the violation continues may be assessed by the Administrator in the case of a violation of the requirements of section 304. In the case of a second or subsequent violation the amount of such penalty may be not more than $75,000 for each day during which the violation continues. Any civil penalty under this subsection shall be assessed and collected in the same manner, and subject to the same provisions, as in the case of civil penalties assessed and collected under section 16 of the Toxic Substances Control Act. In any proceeding for the assessment of a civil penalty under this subsection the Administrator may issue subpoenas for the attendance and testimony of witnesses and the produc- tion of relevant papers, books, and documents and may promul- gate rules for discovery procedures. (3) Judicial assessment. — The Administrator may bring an action in the United States District court for the appropriate district to assess and collect a penalty of not more than $25,000 p)er day for each day during which the violation continues in the case of a violation of the requirements of section 304. In the case of a second or subsequent violation, the amount of such penalty 15 USC 2615. may be not more than $75,000 for each day during which the violation continues. (4) Criminal penalties.— Any person who knowingly and willfully fails to provide notice in accordance with section 304 shall, upon conviction, be fined not more than $25,000 or impris- oned for not more than two years, or both (or in the case of a second or subsequent conviction, shall be fined not more than $50,000 or imprisoned for not more than five years, or both). 142 100 STAT. 1754 PUBLIC LAW 99-499— OCT. 17, 1986 Records. (c) Civil and Administrative Penalties for Reporting Require- ments. — (1) Any person (other than a governmental entity) who violates any requirement of section 312 or 313 shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. (2) Any person (other than a governmental entity) who violates any requirement of section 311 or 3230^), and any person who fails to furnish to the Administrator information required under section 322(aX2) shall be liable to the United States for a civil penalty in an amount not to exceed $10,000 for each such violation. (3) Each day a violation described in paragraph (1) or (2) continues shall, for purp<»es of this subsection, constitute a separate violation. (4) The Administrator may assess any civil penalty for which a person is liable under this subsection by administrative order or may bring an action to assess and collect the penalty in the United States district court for the district in which the person from whom the penalty is sought resides or in which such person's principal place of business is located. (d) Civil, Administrative, and Criminal Penalties With Respect to Trade Secrets. — (1) Civil and administrative penalty ?x)r frivolous claims. — If the Administrator determines — (AXi) under section 322(dX4) that an explanation submit- ted by a trade secret claimant presents insufficient asser- tions to support a finding that a specific chemical identity is a trade secret, or (ii) after receiving supplemental support- ing detailed information under section 322(dX3XA), that the specific chemical identity is not a trade secret; and (B) that the trade secret claim is frivolous, the trade secret claimant is liable for a penalty of $25,000 per claim. The Administrator may assess the penalty by administra- tive order or may bring an action in the appropriate district court of the United States to assess and collect the penalty. (2) Criminal penalty for disclosure of trade secret INFORMATION. — Any person who knowingly and willfully di- vulges or discloses any information entitled to protection under section 322 shall, upon conviction, be subject to a fine of not more than $20,000 or to imprisonment not to exceed one year, or both. (e) Special Enforcement Provisions for Section 323. — When- ever any facility owner or operator required to provide information under section 323 to a health professional who has requested such information fails or refuses to provide such information in accord- ance with such section, such health professional may bring an action in the appropriate United States district court to require such facility owner or operator to provide the information. Such court shall have jurisdiction to issue such orders and take such other action as may be necessary to enforce the requirements of section 323. (0 Procedures for Administrative Penalties.— (1) Any person against whom a civil penalty is assessed under this section may obtain review thereof in the appropriate dis- trict court of the United States by filing a notice of appeal in such court within 30 days after the date of such order and by simultaneously sending a copy of such notice by certified mail to the Administrator. The Administrator shall promptly file in such court a certified copy of the record upon which such 143 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1755 violation was found or such penalty imposed. If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order or after the appropriate court has entered final judgment in favor of the United States, the Administrator may request the Attorney General of the United States to institute a civil action in an appropriate district court of the United States to collect the penalty, and such court shall have jurisdiction to hear and decide any such action. In hearing such action, the court shall have authority to review the viola- tion and the assessment of the civil penalty on the record. (2) The Administrator may issue subpoenas for the attend- ance and testimony of witnesses and the production of relevant papers, books, or documents in connection with hearings under this section. In case of contumacy or refusal to obey a subpoena issued pursuant to this paragraph and served upon any person, the district court of the United States for any district in which such person is found, resides, or transacts business, upon ap- plication by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the administrative law judge or to appear and produce documents before the adminis- trative law judge, or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof. SEC. 326. CIVIL ACTIONS. (a) Authority To Bring Civil Actions.— (1) Citizen suits. — Except as provided in subsection (e), any person may commence a civil action on his own behalf against the following: (A) An owner or operator of a facility for failure to do any of the following: (i) Submit a followup emergency notice under section 304(c). (ii) Submit a material safety data sheet or a list under section 311(a). (iii) Complete and submit an inventory form under section 312(a) containing tier I information as described in section 312(d)(1) unless such requirement does not apply by reason of the second sentence of section 312(a)(2). (iv) Complete and submit a toxic chemical release form under section 313(a). (B) The Administrator for failure to do any of the following: (i) Publish inventory forms under section 312(g). (ii) Respond to a petition to add or delete a chemical under section 313(e)(1) within 180 days after receipt of the petition. (iii) Publish a toxic chemical release form under 313(g). (iv) Establish a computer database in accordance with section 313(j). (v) Promulgate trade secret regulations under section 322(c). (vi) Render a decision in response to a petition under section 322(dj within 9 months after receipt of the petition. 42 use 11046. 75-032 0-90-6 144 100 STAT. 1756 PUBLIC LAW 99-499— OCT. 17, 1986 Public information. State and local governments. District of Columbia. Regulations. Regulations. (C) The Administrator, a State Governor, or a State emergency response commission, for failure to provide a mechanism for pubhc availability of information in accord- ance with section 324(a). (D) A State Governor or a State emergency response commission for failure to respond to a request for tier II information under section 312(eX3) within 120 days after the date of receipt of the request. (2) State or local suits.— (A) Any State or local government may commence a civil action against an owner or operator of a facility for failure to do any of the following: (i) Provide notification to the emergency response commission in the State under section 302(c). (ii) Submit a material safety data sheet or a list under section 311(a). (iii) Make available information requested under sec- tion 311(c). (iv) Ck)mplete and submit an inventory form under section 312(a) containing tier I information unless such requirement does not apply by reason of the second sentence of section 3 1 2(aX2). . (B) Any State emergency response commission or local emergency planning committee may commence a civil action against an owner or operator of a facility for failure to provide information under section 303(d) or for failure to submit tier II information under section 312(eXl). (C) Any State may commence a civil action against the Administrator for failure to provide information to the State under section 322(g). (b) VSNUE.— (1) Any action under subsection (a) against an owner or operator of a facility shall be brought in the district court for the district in which the alleged violation occurred. (2) Any action under subsection (a) against the Administrator may be brought in the United States District Court for the District of (Ilolumbia. (c) Relief. — The district court shall have jurisdiction in actions brought under subsection (a) against an owner or operator of a facility to enforce the requirement concerned and to impose any civil penalty provided for violation of that requirement. The district court shall have jurisdiction in actions brought under subsection (a) against the Administrator to order the Administrator to perform the act or duty concerned. id) Notice.— (1) No action may be commenced under subsection (aXlXA) prior to 60 days after the plaintiff has given notice of the alleged violation to the Administrator, the State in which the alleged violation occurs, and the alleged violator. Notice under this paragraph shall be given in such maimer as the Administrator shall prescribe by regulation. (2) No action may be commenced under subsection (aXlXB) or (aXl)(C) prior to 60 days after the date on which the plaintiff gives notice to the Administrator, State Governor, or State emergency response commission (as the case may be) that the plaintiff will commence the action. Notice under this paragraph 145 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1757 shall be given in such manner as the Administrator shall prescribe by regulation. (e) Limitation. — No action may be commenced under subsection (a) against an owner or operator of a facility if the Administrator has commenced and is diligently pursuing an administrative order or civil action to enforce the requirement concerned or to impose a civil penalty under this Act with respect to the violation of the requirement. (0 GosTS. — The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or the substantially prevailing party whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure. (g) Other Rights. — Nothing in this section shall restrict or expand any right which any person (or class of persons) may have under any Federal or State statute or common law to seek enforce- ment of any requirement or to seek any other relief (including relief against the Administrator or a State agency). (h) Intervention. — (1) By the united states. — In any action under this section the United States or the State, or both, if not a party, may intervene as a matter of right. (2) By persons. — In any action under this section, any person may intervene as a matter of right when such person has a direct interest which is or may be adversely affected by the action and the disposition of the action may, as a practical matter, impair or impede the person's ability to protect that interest unless the Administrator or the State shows that the person's interest is adequately represented by existing parties in the action. SEC. 327. EXEMPTION. Except as provided in section 304, this title does not apply to the transportation, including the storage incident to such transpor- tation, of any substance or chemical subject to the requirements of this title, including the transportation and distribution of natural 18 use app. State and local governments. Natural gas. 42 use 11047. SEC. 328. REGULATIONS. The Administrator may prescribe such regulations as may be necessary to carry out this title. SEC. 329. DEFINITIONS. For purposes of this title — (1) Administrator. — The term "Administrator" means the Administrator of the Environmental Protection Agency. (2) Environment. — The term "environment" includes water, air, and land and the interrelationship which exists among and between water, air, and land and all living things. (3) Extremely hazardous substance. — The term "extremely hazardous substance" means a substance on the list described in section 302(aX2). (4) Facility. — The term "facility" means all buildings, equip- ment, structures, and other stationary items which are located 42 use 11048. 42 use 11049. 146 100 STAT. 1758 PUBUC LAW 99-499— OCT. 17, 1986 42 use 11050. on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person). For purposes of section 304, the term includes motor vehicles, rolling stock, and aircraft. (5) Hazardous chemical.— The term "hazardous chemical" has the meaning given such term by section 311(e). (6) Material safety data sheet.— The term "material safety data sheet" means the sheet required to be developed under section 19 10. 1200(g) of title 29 of the Code of Federal Regula tions, as that section may be amended from time to time (7) Person. — The term "person" means any individual, trust firm, joint stock company, corporation (including a government corporation), partnership, association. State, municipality commission, political subdivision of a State, or interstate body (8) Release —The term "release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers and other closed receptacles) of any hazardous chemical, ex tremely hazardous substance, or toxic chemical. (9) State —The term "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, (iuam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, and any other territory or possession over which the United States has jurisdiction. (10) Toxic chemical.— The term "toxic chemical" means a substance on the list described in section 313(c). SEC. 330. AUTHORIZATION OF APPROPRIATIONS. There are authorized to be appropriated for fiscal years beginning after September 30, 1986, such sums as may be necessary to carry out this title. Radon Gas and Indoor Air Quality Research Act of 1986. 42 use 7401 note. TITLE IV- RADON GAS AND INDOOR AIR QUALITY RESEARCH SEC. 401. short title. This title may be cited as the "Radon Gas and Indoor Air Quality Research Act of 1986". 42 use 7401 note. 42 use 7401 note. SEC. 402. FINDINGS. The Congress finds that: (1) High levels of radon gas pose a serious health threat in structures in certain areas of the country. (2) Various scientific studies have suggested that exposure to radon, including exposure to naturally occurring radon and indoor air pollutants, poses a public health risk. (3) Existing Federal radon and indoor air pollutant research programs are fragmented and underfunded. (4) An adequate information base concerning exposure to radon and indoor air pollutants should be developed by the appropriate Federal agencies. SEC. 403. RADON GAS AND INDOOR AIR QUALITY RESEARCH PROGRAM. (a) Design of Program— The Administrator of the Environ mental Protection Agency shall establish a research program with 147 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1759 respect to radon gas and indoor air quality. Such program shall be designed to — (1) gather data and information on all aspects of indoor air quality in order to contribute to the understanding of health problems associated with the existence of air pollutants in the indoor environment; (2) coordinate Federal, State, local, and private research and development efforts relating to the improvement of indoor air quality; and (3) assess appropriate Federal Government actions to mitigate the environmental and health risks associated with indoor air quality problems. (b) Program Requirements.— The research program required under this section shall include — (1) research and development concerning the identification, characterization, and monitoring of the sources and levels of indoor air pollution, including radon, which includes research and development relating to — (A) the measurement of various pollutant concentrations and their strengths and sources, (B) high-risk building types, and (C) instruments for indoor air quality data collection; (2) research relating to the effects of indoor air pollution and radon on human health; (3) research and development relating to control technologies or other mitigation measures to prevent or abate indoor air pollution (including the development, evaluation, and testing of individual and generic control devices and systems); (4) demonstration of methods for reducing or eliminating indoor air pollution and radon, including sealing, venting, and other methods that the Administrator determines may be effective; (5) research, to be carried out in conjunction with the Sec- retary of Housing and Urban Development, for the purpose of developing — (A) methods for assessing the potential for radon contami- nation of new construction, including (but not limited to) consideration of the moisture content of soil, porosity of soil, and radon content of soil; and (B) design measures to avoid indoor air pollution; and (6) the dissemination of information to assure the public availability of the findings of the activities under this section. (c) Advisory Committees. — The Administrator shall establish a committee comprised of individuals representing Federal agencies concerned with various aspects of indoor air quality and an advisory group comprised of individuals representing the States, the sci- entific community, industry, and public interest organizations to assist him in carrying out the research program for radon gas and indoor air quality. (d) Implementation Plan. — Not later than 90 days after the enactment of this Act, the Administrator shall submit to the Con- gress a plan for implementation of the research program under this section. Such plan shall also be submitted to the EPA Science Advisory Board, which shall, within a reasonable j)eriod of time, submit its comments on such plan to Congress. (e) Report. — Not later than 2 years after the enactment of this Act, the Administrator shall submit to Congress a report respecting 148 100 STAT. 1760 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 740] note Appropriation authorization. 42 use 7401 note his activities under this section and making such recommendations as appropriate. SEC. 404. CONSTRUCTION OF TITLE. Nothing in this title shall be construed to authorize the Adminis- trator to carry out any regulatory program or any activity other than research, development, and related reporting, information dissemination, and coordination activities specified in this title. Nothing in this title shall be construed to limit the authority of the Administrator or of any other agency or instrumentality of the United States under any other authority of law. SEC. 405. AUTHORIZATIONS. There are authorized to be appropriated to carry out the activities under this title and under section 118(k) of the Superfund Amend- ments and Reauthorization Act of 1986 (relating to radon gas assess- ment and demonstration program) not to exceed $5,000,000 for each of the fiscal years 1987, 1988, and 1989. Of such sums appropriated in fiscal years 1987 and 1988, two-fifths shall be reserved for the implementation of section 118(k)(2). Superfund Revenue Act of 1986 •-'6 use 1 note. TITLE V— AMENDMENTS OF THE INTERNAL REVENUE CODE OF 1986 SEC. 501. SHORT TITLE. This title may be cited as the "Superfund Revenue Act of 1986". PART I— SUPERFUND AND ITS REVENUE SOURCES 26 use 4611 Effective date. Post, p. 1770; 26 use 4661, 4671. SEC. 511. EXTENSION OF ENVIRONMENTAL TAXES. (a) In General. — Subsection (d) of section 4611 of the Internal Revenue Code of 1986 (relating to termination) is amended to read as follows: "(d) Application of Taxes.— "(1) In GENERAL.— Except as provided in paragraphs (2) and (3), the taxes imposed by this section shall apply after December 31, 1986, and before January 1, 1992. "(2) No TAX IF UNOBLIGATED BALANCE IN FUND EXCEEDS $3,500,000,000— If on December 31, 1989, or December 31, 1990— "(A) the unobligated balance in the Hazardous Substance Superfund exceeds $3,500,000,000, and "(B) the Secretary, after consultation with the Adminis- trator of the Environmental Protection Agency, determines that the unobligated balance in the Hazardous Substance Superfund will exceed $3,500,000,000 on December 31 of 1990 or 1991, respectively, if no tax is imposed under section 59A, this section, and sections 4661 and 4671, then no tax shall be imposed under this section during 1990 or 1991, as the case may be. "(3) No TAX IF AMOUNTS COLLECTED EXCEED $6,650,000,000.— "(A) Estimates by secretary. — The Secretary as of the close of each calendar quarter (and at such other times as the Secretary determines appropriate) shall make an esti- 149 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1761 Post, p. 1770; 26 use 4661, 4671. 42 use 9653. 26 use 4611 note. 26 use 4611. mate of the amount of taxes which will be collected under section 59A, this section, and sections 4661 and 4671 and credited to the Hazardous Substance Superfund during the period be^ning January 1, 1987, and ending December 31, 1991. "(B) Termination if $6,650,ooo,ooo credited before JANUARY 1, 1992. — If the Secretary estimates under subparagraph (A) that more than $6,650,000,000 will be credited to the Fund before January 1, 1992, no tax shall be imposed under this section after the date on which (as estimated by the Secretary) $6,650,000,000 will be so cred- ited to the Fund." (b) Technical Amendment.— Section 303 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 is hereby repealed. (c) Effective Date. — The amendments made by this section shall take effect on January 1, 1987. SEC. 512. INCREASE IN TAX ON PETROLEUM. (a) In General.— Subsections (a) and (b) of section 4611 of the 26 use 4611 Internal Revenue Code of 1986 (relating to environmental tax on petroleum) are each amended by striking out "of 0.79 cent a barrel" and inserting in lieu thereof "at the rate specified in subsection (c)". (b) Increase in Tax.— Section 4611 of such Code is amended by redesignating subsections (c) and (d) as subsections (d) and (e), respectively, and by inserting after subsection (b) the following new subsection: "(c) Rate of Tax.— "(1) In general.— Except as provided in paragraph (2), the rate of the taxes imposed by this section is 8.2 cents a barrel. "(2) Imported petroleum products. — The rate of the tax imposed by subsection (aX2) shall be 11.7 cents a barrel." (c) Allowance of Credit for Crude Oil Returned to Pipeune.— Section 4612 of such Code (relating to definitions and special rules) is amended by redesignating subsection (c) as subsection (d) and by inserting after subsection 0>) the following new subsection: "(c) Credit Where Crude Oil Returned to Pipeune— Under regulations prescribed by the Secretary, if an operator of a United States refinery — "(1) removes crude oil from a pipeline, and "(2) returns a portion of such crude oil into a stream of other crude oil in the same pipeline, there shall be allowed as a credit against the tax imposed by section 4611 to such operator an amount equal to the product of the rate of tax imposed by section 4611 on the crude oil so removed by such operator and the number of barrels of crude oil returned by such operator to such pipeline. Any crude oil so returned shall be treated for purposes of tlus subchapter as crude oil on which no tax has been imposed by section 4611." (d) Effective Date.— The amendments made by this section shall take effect on January 1, 1987. SEC. 513. CHANGES RELATING TO TAX ON CERTAIN CHEMICALS. (a) Increase in Rate of Tax on Xylene.— The table contained in subsection (b) of section 4661 of the Internal Revenue Oxie of 1986 (relating to tax on certain chemicals) is amended by adding at the end thereof the following new sentence: 26 use 4612. Regulations. 26 use 4611 note. 26 use 4661. 150 100 STAT. 1762 PUBLIC LAW 99-499— OCT. 17, 1986 i For periods before 1992, the item relating to xylene in the preced- ing table shall be applied by substituting '10.13' for '4.87'." 26 use 4662 (b) EXEMPTION FOR EXPORTS OF TAXABLE CHEMICALS.— (1) Section 4662 of such Code (relating to definitions and special rules) is amended by redesignating subsection (e) as subsection (f) and by inserting after subsection (d) the following new subsection: "(e) Exemption for Exports of Taxable Chemicals.— "(1) Tax-free sales. — "(A) In general.— No tax shall be imposed under section 4661 on the sale by the manufacturer or producer of any taxable chemical for export, or for resale by the purchaser to a second purchaser for export. "(B) Proof of export required.— Rules similar to the rules of section 4221(b) shall apply for purposes of subpara- graph (A). "(2) Credit or refund where tax paid.— "(A) In general.— Except as provided in subparagraph (B), if— f "6 K "(i) tax under section 4661 was paid with respect to any taxable chemical, and "(iiXD such chemical was exported by any person, or "(II) such chemical was used as a material in the manufacture or production of a substance which was exported by any person and which, at the time of export, was a taxable substance (as defined in section 4672(a)), credit or refund (without interest) of such tax shall be allowed or made to the person who paid such tax. "(B) Condition to allowance.— No credit or refund shall be allowed or made under subparagraph (A) unless the person who paid the tax establishes that he — "(i) has repaid or agreed to repay the amount of the tax to the person who exported the taxable chemical or taxable substance (as so defined), or "(ii) has obtained the written consent of such ex- porter to the allowance of the credit or the making of the refund. "(3) Regulations. — The Secretary shall prescribe such regu- lations as may be necessary to carry out the purposes of this subsection." Post, p 1764. (2) Paragraph (1) of section 4662(d) of such Code (relating to refund or credit for certain uses) is amended — (A) by striking out "the sale of which by such person would be taxable under such section" and inserting in lieu thereof "which is a taxable chemical", and (B) by striking out "imposed by such section on the other substance manufactured or produced" and inserting in lieu thereof "imposed by such section on the other substance manufactured or produced (or which would have been im- posed by such section on such other substance but for subsection (b) or (e) of this section)". (c) Special Rule for Xylene.— Subsection (b) of section 4662 of such Code (relating to exceptions; other special rules) is amended by adding after paragraph (6) the following new paragraph: \ "(7) Special rule for xylene.— Except in the case of any substance imported into the United States or exported from the 151 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1763 United States, the term 'xylene' does not include any separated isomer of xylene." (d) Exemption for Certain Recycled Chemicals.— Subsection (b) of section 4662 of such Code (relating to exceptions; other special rules) is amended by adding after paragraph (7) the following new paragraph: "(8) Recycled chromium, cobalt, and nickel.— "(A) In general.— No tax shall be imposed under section 4661(a) on any chromium, cobalt, or nickel which is diverted or recovered in the United States from any solid waste as part of a recycling process (and not as part of the original manufacturing or production process). "(B) Exemption not to apply while corrective action uncompleted.— Subparagraph (A) shall not apply during any period that required corrective action by the taxpayer at the unit at which the recycling occurs is uncompleted. "(C) Required corrective action.— For purposes of subparagraph (B), required corrective action shall be treated as uncompleted during the period — "(i) beginning on the date that the corrective action is required by the Administrator or an authorized State pursuant to — "(I) a final permit under section 3005 of the Solid Waste Disposal Act or a final order under section 3004 or 3008 of such Act, or "(II) a final order under section 106 of the Com- prehensive Environmental Response, Compensa- tion, and Liability Act of 1980, and "(ii) ending on the date the Administrator or such State (as the case may be) certifies to the Secretary that such corrective action has been completed. "(D) Special rule for groundwater treatment.— In the case of corrective action requiring groundwater treatment, such action shall be treated as completed as of the close of the 10-year period beginning on the date such action is required if such treatment complies with the permit or order applicable under subparagraph (C)(i) throughout such period. The preceding sentence shall cease to apply begin- ning on the date such treatment ceases to comply with such permit or order. "(E) Solid waste.— For purposes of this paragraph, the term 'solid waste' has the meaning given such term by section 1004 of the Solid Waste Disposal Act, except that such term shall not include any byproduct, coproduct, or other waste from any process of smelting, refining, or other- wise extracting any metal." (e) Exemption for Animal Feed Substances.— (1) In general.— Subsection (b) of section 4662 of such Code (relating to exceptions; other special rules) is amended by adding after paragraph (8) the following new paragraph: "(9) Substances used in the production of animal feed.— "(A) In general. — In the case of^ "(i) nitric acid, "(ii) sulfuric acid, "(iii) ammonia, or "(iv) methane used to produce ammonia, Ante, p. 1762; post, p. 1765; infra. 42 use 6925. 42 use 6924, 6928. 42 use 9603. Termination date. 42 use 6903. 152 100 STAT. 1764 PUBLIC LAW 99-499— OCT. 17, 1986 which is a qualified animal feed substance, no tax shall be 26 use 4661. imposed under section 4661(a). "(B) QUAUFIED ANIMAL FEED SUBSTANCE. — For purpOSeS of this section, the term 'qualified animal feed substance' means any substance — "(i) used in a qualified animal feed use by the manu- facturer, producer, or importer, "(ii) sold for use by any purchaser in a qualified animal feed use, or "(iii) sold for resale by any purchaser for use, or resale for ultimate use, in a qualified animal feed use. "(C) Qualified animal feed use.— The term 'qualified animal feed use' means any use in the manufacture or production of animal feed or animal feed supplements, or of ingredients used in animal feed or animal feed supplements. "(D) Taxation of nonquaufied sale or use.— For pur- poses of section 4661(a), if no tax was imposed by such section on the sale or use of any chemical by reason of subparagraph (A), the 1st person v/ho sells or uses such chemical other than in a sale or use described in subpara- graph (A) shall be treated as the manufacturer of such chemical." (2) Refund or credit for substances used in the produc- tion of animal feed. — Subsection (d) of section 4662 of such Ante, p. 1762. Code (relating to refunds and credits with respect to the tax on certain chemicals) is amended by adding at the end thereof the following new paragraph: "(4) Use in the production of animal feed.— Under regula- tions prescribed by the Secretary, if — "(A) a tax under section 4661 was paid with respect to nitric acid, sulfuric acid, ammonia, or methane used to produce ammonia, without regard to subsection (bX9), and "(B) any person uses such substance as a qualified animal feed substance, then an amount equal to the excess of the tax so paid over the tax determined with regard to subsection (bX9) shall be allowed as a credit or refund (without interest) to such person in the same manner as if it were an overpayment of Lax imposed by this section." (f) Certain Exchanges by Taxpayers Not Treated as Sales.— Subsection (c) of section 4662 of such Code (relating to use by manufacturers) is amended to read as follows: "(c) Use and Certain Exchanges by Manufacturer, Etc.— "(1) Use treated as sale. — Except as provided in subsections (b) and (e), if any person manufactures, produces, or imports any taxable chemical and uses such chemical, then such person shall be liable for tax under section 4661 in the same manner as if such chemical were sold by such person. "(2) Special rules for inventory exchanges.— "(A) In general. — Except as provided in this paragraph, in any case in which a manufacturer, producer, or importer of a taxable chemical exchanges such chemical as part of an inventory exchange with another person — "(i) such exchange shall not be treated as a sale, and 153 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1765 Ante, p. 1763. ' "(ii) such other person shall, for purposes of section 4661, be treated as the manufacturer, producer, or 26 USC 4661. importer of such chemical. "(B) Registration requirement.— Subparagraph (A) shall not apply to any inventory exchange unless— "(i) both parties are registered with the Secretary as manufacturers, producers, or importers of taxable chemicals, and "(ii) the person receiving the taxable chemical has, at such time as the Secretary may prescribe, notified the manufacturer, producer, or importer of such person's registration number and the internal revenue district in which such person is registered. "(C) Inventory exchange. — For purposes of this para- graph, the term 'inventory exchange' means any exchange in which 2 persons exchange property which is, in the hands of each person, property described in section 1221(1)." (g) Special Rules Relating to Hydrocarbon Streams Contain- ing Organic Taxable Chemicals.— Subsection (b) of section 4662 of such Code (relating to exceptions; other special rules) is amended by adding after paragraph (9) the following new paragraph: "(10) Hydrocarbon streams containing mixtures of or- ganic TAXABLE CHEMICALS.— "(A) In GENERAL.— No tax shall be imposed under section 4661(a) on any organic taxable chemical while such chemi- cal is part of an intermediate hydrocarbon stream contain- ing a mixture of organic taxable chemicals. "(B) Removal, etc., treated as use.— For purposes of this part, if any organic taxable chemical on which no tax was imposed by reason of subparagraph (A) is isolated, ex- tracted, or otherwise removed from, or ceases to be part of, an intermediate hydrocarbon stream— "(i) such isolation, extraction, removal, or cessation shall be treated as use by the person causing such event, and "(ii) such person shall be treated as the manufacturer of such chemical. "(C) Registration requirement.— Subparagraph (A) shall not apply to any sale of any intermediate hydrocarbon stream unless the registration requirements of clauses (i) and (ii) of subsection (cX2XB) are satisfied. "(D) Organic taxable chemical.— For purposes of this paragraph, the term 'organic taxable chemical' means any taxable chemical which is an organic substance." (h) Effective Dates. — (1) In general.— Except as otherwise provided in this subsec- tion, the amendments made by this section shall take effect on January 1, 1987. (2) Repeal of tax on xylene for periods before October i, 1985.— (A) Refund of tax previously imposed — (i) In general.— In the case of any tax imposed by section 4661 of the Internal Revenue Code of 1954 on the sale or use of xylene before October 1, 1985, such tax (including interest, additions to tax, and additional amounts) shall not be assessed, and if assessed, the 26 use 4661 note. 154 100 STAT. 1766 PUBLIC LAW 99-499— OCT. 17, 1986 26 use 4661. Claims. 26 use prec. 4611-4612, prec. 4661-4662. prec. 4041, 4611 note. Imports and exports. 26 use 4661. Imports and exports. Ante, p. 1762. assessment shall be abated, and if collected shall be credited or refunded (with interest) as an overpayment. (ii) Condition to allowance.— Clause (i) shall not apply to a sale of xylene unless the person who (but for clause (i)) would be liable for the tax imposed by section 4661 on such sale meets requirements similar to the requirements of paragraph (1) of section 6416(a) of such Code. For purposes of the preceding sentence, subpara- graph (A) of section 6416(aXl) of such Code shall be applied without regard to the material preceding "has not collected". (B) Waiver of statute of limitations.— If on the date of the enactment of this Act (or at any time within 1 year after such date of enactment) refund or credit of any over- payment of tax resulting from the application of subpara- graph (A) is barred by any law or rule of law, refund or credit of such overpayment shall, nevertheless, be made or allowed if claim therefor is filed before the date 1 year after the date of the enactment of this Act. (C) Xylene to include isomers.— For purposes of this paragraph, the term "xylene" shall include any isomer of xylene whether or not separated. (3) Inventory exchanges.— (A) In general.— Except as otherwise provided in this paragraph, the amendment made by subsection (0 shall apply as if included in the amendments made by section 211 of the Hazardous Substance Response Revenue Act of 1980. (B) Recipient must agree to treatment as manufac- turer. — In the case of any inventory exchange before Janu- ary 1, 1987, the amendment made by subsection (f) shall apply only if the person receiving the chemical from the manufacturer, producer, or importer in the exchange agrees to be treated as the manufacturer, producer, or importer of such chemical for purposes of subchapter B of chapter 38 of the Internal Revenue C)ode of 1954. (C) Exception where manufacturer paid tax.— In the case of any inventory exchange before January 1, 1987, the amendment made by subsection (f) shall not apply if the manufacturer, producer, or importer treated such exchange as a sale for purposes of section 4661 of such Code and paid the tax imposed by such section. (D; Registration requiremeni'S.— Section 4662(cK2XB) of such Code (as added by subsection (0) shall apply to ex- changes made after December 31, 1986. (4) Exports of taxable substances. — Subclause (II) of section 4662(eX2)(AXii) of such Code (as added by this section) shall not apply to the export of any taxable substance (as defined in section 4672(a) of such Cods) before January 1, 1989. (5) Sales of intermediate hydrocarbon streams. — (A) In general. — Except as otherwise provided in this paragraph, the amendment made by subsection (g) shall apply as if included in the amendments made by section 211 of the Hazardous Substances Response Revenue Act of 1980. (B) Purchaser must agree to treatment as manufac- turer—Id the case of any sale before January 1, 1987, of any intermediate hydrocarbon stream, the amendment made by subsection (g) shall apply only if the purchaser 155 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1767 agrees to be treated as the manufacturer, producer, or importer for purposes of subchapter B of chapter 38 of such Code. (C) Exception where manufacturer paid tax. — In the case of any sale before January 1, 1987, of any intermediate hydrocarbon stream, the amendment made by subsection (g) shall not apply if the manufacturer, producer, or im- porter of such stream paid the tax imposed by section 4661 with respect to such sale on all taxable chemicals contained in such stream. (D) Registration requirements. — Section 4662(bK10HC) of such Code (as added by subsection (g)) shall apply to exchanges made after December 31, 1986. SEC. 514. REPEAL OF POST-CLOSURE TAX AND TRUST FIND. (a) Repeal of Tax.— (1) Subchapter C of chapter 38 of the Internal Revenue Code of 1986 (relating to tax on hazardous wastes) is hereby repealed. (2) The table of subchapters for such chapter 38 is amended by striking out the item relating to subchapter C. (b) Repeal of Trust Fund. — Section 232 of the Hazardous Sub- stance Response Revenue Act of 1980 is hereby repealed. (c) Effective Date.— (1) In general. — The amendments made by this section shall take effect on October 1, 1983. (2) Waiver of statute of umitations. — If on the date of the enactment of this Act (or at any time within 1 year after such date of enactment) refund or credit of any overpayment of tax resulting from the application of this section is barred by any law or rule of law, refund or credit of such overpayment shall, nevertheless, be made or sdlowed if claim therefor is filed before the date 1 year after the date of the enactment of this Act. SEC. 515. TAX ON CERTAIN IMPORTED SUBSTANCES DERIVED FROM TAXABLE CHEMICALS. (a) General Rule. — Chapter 38 of the Internal Revenue Code of 1986 is amended by adding after subchapter B the following new subchapter: "Subchapter C. Tax on Ortain Imported Substances. "Sec. 4671. Imposition of tax. "Sec. 4672. Derinitions and special rules. "SEC. 4671. IMPOSITION OF TAX. "(a) General Rule. — There is hereby imposed a tax on any taxable substance sold or used by the importer thereof. "(b) Amount of Tax.— "(1) In general. — Except as provided in paragraph (2), the amount of the tax imposed by subsection (a) with respect to any taxable substance shall be the amount of the tax which would have been imposed by section 4661 on the taxable chemicals used as materials in the manufacture or production of such substance if such taxable chemicals had been sold in the United States for use in the manufacture or production of such taxable substance. "(2) Rate where importer does not furnish information to secretary. — If the importer does not furnish to the Secretary (at such time and in such manner as the Secretary shall pre- 26 use prec. 4611-4612, prec. 4661-4662, prec. 4041, 4611 note. Imports and exports. 26 use 4681, 4682. 42 use 9641 26 use 4681 note. Claims. 26 use 4671 Imports and exports. 156 100 STAT. 1768 PUBLIC LAW 99-499— OCT. 17, 1986 26 use 4611, 4661. I 26 use 4672. scribe) sufficient information to determine under paragraph (1) the amount of the tax imposed by subsection (a) on any taxable substance, the amount of the tax imposed on such taxable substance shall be 5 percent of the appraised value of such substance as of the time such substance was entered into the United States for consumption, use, or warehousing. "(3) Authority to prescribe rate in ueu of paragraph (2) RATE— The Secretary may prescribe for each taxable substance a tax which, if prescribed, shall apply in lieu of the tax specified in paragraph (2) with respect to such substance. The tax pre- scribed by the Secretary shall be equal to the amount of tax which would be imposed by subsection (a) with respect to the taxable substance if such substance were produced using the predominant method of production of such substance. "(c) Exemptions for Substances Taxed Under Sections 4611 AND 4661— No tax shall be imposed by this section on the sale or use of any substance if tax is imposed on such sale or use under section 4611 or 4661. "(d) Tax-Free Sales, Etc. for Substances Used as Certain Fuels or in the Production of Fertilizer or Animal Feed— Rules similar to the following rules shall apply for purposes of applying this section with respect to taxable substances used or sold for use as described in such rules: "(1) Paragraphs (2), (5), and (9) of section 4662(b) (relating to tax-free sales of chemicals used as fuel or in the production of fertilizer or animal feed). "(2) Paragraphs (2), (3), and (4) of section 4662(d) (relating to refund or credit of tax on certain chemicals used as fuel or in the production of fertilizer or animal feed). "(e) Termination. — No tax shall be imposed under this section during any period during which no tax is imposed under section 4611(a). "SEC. 4672. DEFINITIONS AND SPECIAL RILES. "(a) Taxable Substance. — For purposes of this subchapter — "(1) In general. — The term 'taxable substance' means any substance which, at the time of sale or use by the importer, is listed as a taxable substance by the Secretary for purposes of this subchapter. "(2) Determination of substances on list.— A substance shall be listed under paragraph (1) if— "(A) the substance is contained in the list under para- graph (3), or "(B) the Secretary determines, in consultation with the Administrator of the Environmental Protection Agency and the Commissioner of Customs, that taxable chemicals con- stitute more than 50 percent of the weight of the materials used to produce such substance (determined on the basis of the predominant method of production). "(3) Initial list of taxable substances. — Cumene Styrene Ammonium nitrate Nickel oxide Isopropyl alcohol Methylene chloride Polypropylene Propylene glycol Formaldehyde Acetone 157 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1769 Ethylene glycol Vinyl chloride Polyethylene resins, total Polybutadiene Styrene-butadiene, latex Styrene-butadiene, snpf Synthetic rubber, not containing fillers Urea Ferronickel Ferrochromium nov 3 pet Ferrochrome ov 3 pet. carbon Unwrought nickel Nickel waste and scrap Wrought nickel rods and wire Nickel powders Phenolic resins Polyvinylchloride resins Polystyrene resins and copolymers Ethyl alcohol for nonbeverage use Ethylbenzene Acrylonitrile Methanol Propylene oxide Polypropylene resins Ethylene oxide Ethylene dichloride Cyclohexane Isophthalic acid Maleic anhydride Phthalic anhydride Ethyl methyl ketone Chloroform Carbon tetrachloride Chromic acid Hydrogen peroxide Polystyrene homopolymer resins Melamine Acrylic and methacrylic acid resins Vinyl resins Vinyl resins, NSPF. "(4) Modifications to ust.— "(A) In general. — The Secretary may add substances to or remove substances from the list under paragraph (3) (including items listed by reason of paragraph (2)) as nec- essary to carry out the purposes of this subchapter. "(B) Authority to add substances to ust based on VALUE. — The Secretary may, to the extent necessary to I carry out the purposes of this subchapter, add any sub- ' stance to the list under paragraph (3) if such sutetance would be described in paragraph (2XB) if 'value' were sub- stituted for 'weight' therein. "(b) Other Definitions. — For purposes of this subchapter — "(1) Importer. — The term 'importer' means the person enter- ing the taxable substance for consumption, use, or warehousing. "(2) Taxable chemicals; united states. — The terms 'taxable chemical' and 'United States' have the respective meanings given such terms by section 4662(a). "(c) EhsposmoN of Revenues From Puerto Rico and the Virgin Islands. — The provisions of subsections (aX3) and (bX3) of section 7652 shall not apply to any tax imposed by section 4671." (b) Clerical Amendment. — The table of subchapters for chapter 38 of such Code is amended by adding after the item relating to subchapter B the following new item: "Subchapter C. Tax on certain imported substances." (c) Effective Date. — The amendments made by this section shall take effect on January 1, 1989. (d) Study. — (1) In general. — The Secretary of the Treasury or his dele- gate shall conduct a study of issues relating to the implementa- tion of— (A) the tax imposed by the section 4671 of the Internal Revenue Code of 1986 (as added by this section), and (B) the credit for exports of taxable substances under section 4661(eX2XAXiiXII) of such Code. In conducting such study, the Secretary of the Treasury or his del^ate shall consult with the Environmental Protection Agency and the International Trade Commission. (2) Report. — The report of the study under paragraph (1) shall be submitted not later than January 1, 1988, to the Committee 26 use 4662. 26 use 4671 note. 26 use 4671 note. 158 100 STAT. 1770 PUBLIC LAW 99-499— OCT. 17, 1986 on Ways and Means of the House of Representatives and the Committee on Finance of the Senate. SEC. 516. KNVIRONMENTAL TAX. (a) In General.— Subchapter A of chapter 1 of the Internal Revenue Code of 1986 (relating to income taxes) is amended by adding at the end thereof the following new part: "PART VII— ENVIRONMENTAL TAX "Sec r)9A. Environmental tax. 26 use 59A -SEC. 59A. ENVIRONMENTAL TAX. Corporation "(a) IMPOSITION OF Tax. — In the case of a corporation, there is hereby imposed (in addition to any other tax imposed by this subtitle) a tax equal to 0.12 percent of the excess of — "(1) the modified alternative minimum taxable income of such corporation for the taxable year, over "(2) $2,000,000. "(b) Modified Alternative Minimum Taxable Income.— For purposes of this section, the term 'modified alternative minimum taxable income' means alternative minimum taxable income (as defined in section 55(b)(2)) but determined without regard to— "(1) the alternative tax net operating loss deduction (as de- fined in section 56(d)), and "(2) the deduction allowed under section 164(aK5). "(c) Special Rules. — "(1) Short taxable years. — The application of this section to taxable years of less than 12 months shall be in accordance with regulations prescribed by the Secretary. "(2) Section 15 not to apply. — Section 15 shall not apply to the tax imposed by this section. "(d) Application of Tax. — Effective date. "(1) In GENERAL.— The tax imposed by this section shall apply to taxable years beginning after December 31, 1986, and before January 1, 1992. "(2) Earlier termination. — The tax imposed by this section shall not apply to taxable years — "(A) beginning during a calendar year during which no tax is imposed under section 4611(a) by reason of paragraph (2) of section 461 1(e), and "(B) beginning after the calendar year which includes the termination date under paragraph (3) of section 4611(e)." (b) Technical Amendments — (1) No credits allowed against tax.— (A) Paragraph (2) of section 26(b) of such Code, as amended by the Tax Reform Act of 1986, is amended by redesignating subparagraphs (B) through (J) as subpara- graphs (C) through (K), respectively, and by inserting after subparagraph (A) the following new subparagraph: "(B) section 59A (relating to environmental tax),". (B) Paragraph (3) of section 936(a) of such Code, as so amended, is amended by redesignating subparagraphs (A), (B), and (C) as subparagraphs (B), (C), and (D), respectively, and by inserting before subparagraph (B) (as so redesig- nated) the following new subparagraph: "(A) section 59A (relating to environmental tax),". 159 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1771 (2) Tax to be deductible for income tax purposes.— (A) Subsection (a) of section 164 of such Code (relating to deduction for taxes), as so amended, is amended by insert- ing after paragraph (4) the following new paragraph: "(5) The environmental tax imposed by section 59A." (B) Subsection (a) of section 275 of such Code is amended by adding at the end thereof the following new sentence: "Paragraph (1) shall not apply to the tax imposed by section 59A." (3) Limitation in case of controlled corporations. — Subsection (a) of section 1561 of such Code (relating to limita- tions on certain multiple tax benefits in the case of certain controlled corporations), as amended by the Tax Reform Act of 1986, is amended — (A) by striking out "and" at the end of paragraph (2), by striking out the period at the end of paragraph (3) and inserting in lieu thereof ", and", and by inserting after paragraph (3) the following new paragraph: "(4) one $2,000,000 amount for purposes of computing the tax imposed by section 59A.", and (B) by striking out "(and the amount specified in para- graph (3))" and inserting in lieu thereof ", the amount specified in paragraph (3), and the amount specified in paragraph (4)". (4) Amendments to estimated tax provisions. — (A) Tax liability must be estimated. — (i) Paragraph (1) of section 6154(c) of such Code, as so amended, is amended by striking out "and" at the end of subparagraph (A), by striking out "over" at the end of subparagraph (B) and inserting in lieu thereof "and", and by adding at the end thereof the following new subparagraph: "(C) the environmental tax imposed by section 59 A, over". (ii) Subsection (a) of section 6154 of such Code is amended by striking out "section 11" and inserting "section 11, 59A,". (C) Conforming amendment to overpayment of esti- mated TAX. — Subparagraph (A) of section 6425(cXl) of such Code, as amended by the Tax Reform Act of 1986, is amended by striking out "plus" at the end of clause (i), by striking out "over" at the end of clause (ii) and inserting in lieu thereof "plus", and by adding at the end thereof the following new clause: "(iii) the tax imposed by section 59A, over". (D) Conforming amendment to penalty for failure to PAY estimated tax. — Paragraph (1) of section 6655(f) of such Code (defining tax), as so amended, is amended by striking out "plus" at the end of subparagraph (A), by striking out "over" at the end of subparagraph (B) and inserting in lieu thereof "plus", and by adding at the end thereof the follow- ing new subparagraph: "(C) the tax imposed by section 59 A, over". (5) Clerical amendment. — The table of parts for subchapter A of chapter 1 of such Code is amended by adding at the end thereof the following new item: "Part VII. Environmental tax." 26 use 164. Ante, p. 1770. 160 100 STAT. 1772 PUBLIC LAW 99-499— OCT. 17, 1986 26 use 26 note. (c) EFFECTIVE Date. — The amendments made by this section shall apply to taxable years beginning after December 31, 1986. SEC. 517. HAZARDOUS SUBSTANCE SUPERFUND. (a) In General. — Subchapter A of chapter 98 of the Internal Revenue Code of 1986 (relating to establishment of trust funds) is amended by adding after section 9506 the following new section: 26 use 9507. "SEC. 9507. HAZARDOUS SUBSTANCE SUPERFUND. "(a) Creation of Trust Fund. — There is established in the Treas- ury 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, or "(3) credited to the Superfund as provided in section 9602(b). "flt)) Transfers to Superfund. — There are hereby appropriated to the Superfund amounts equivalent to — "(1) the taxes received in the Treasury under section 59A, 4611, 4661, or 4671 (relating to environmental taxes), "(2) amounts recovered on behalf of the Superfund under the Comprehensive Environmental Response, Ojmpensation, and Liability Act of 1980 (hereinafter in this section referred to as 'CERCLA'), "(3) all moneys recovered or collected under section 311(bX6XB) of the Clean Water Act, "(4) penalties assessed under title I of CERCLA, and "(5) punitive damages under section 107(cX3) of CERCLA. "(c) Expenditures From Superfund. — "(1) In general. — Amounts in the Superfund shall be avail- able, as provided in appropriation Acts, only for purposes of making expenditures — "(A) to carry out the purposes of — "(i) paragraphs (1), (2), (5), and (6) of section 111(a) of Ante, p. 1642 CERCLA as in effect on the date of the enactment of the Superfund Amendments and Reauthorization Act of 1986, "(ii) section 111(c) of CERCLA (as so in effect), other than paragraphs (1) and (2) thereof, and "(iii) section 11 Km) of CERCLA (as so in effect), or "(B) hereafter authorized by a law which does not au- thorize the expenditure out of the Superfund for a general purpose not covered by subparagraph (A) (as so in effect) Waste disposal. "(2) EXCEPTION FOR CERTAIN TRANSFERS, ETC., OF HAZARDOUS SUBSTANCES. — No amount in the Superfund or derived from the Superfund shall be available or used for the transfer or disposal of hazardous waste carried out pursuant to a cooperative agree- ment between the Administrator of the Environmental Protec- tion Agency and a State if the following conditions apply— "(A) the transfer or disposal, if made on December 13, 1985, would not comply with a State or local requirement, "(B) the transfer is to a facility for which a final permit 42 use 6925. under section 3005(a) of the Solid Waste Disposal Act was issued after January 1, 1983, and before November 1, 1984, and Infra. Ante, p. 1770. 42 use 9601 note. 33 use 1321. 42 use 9601. 42 use 9607. 161 PUBLIC LAW 99-499— (XT. 17, 1986 100 STAT. 1773 Appropriation authorization. "(C) the transfer is from a facility identified as the McCoU California. Site in Fullerton, California. "(d) Authority To Borrow.— "(1) In general.— There are authorized to be appropriated to the Superfund, as repayable advances, such sums as may be necessary to carry out the purposes of the Superfund. "(2) Limitation on aggregate advances.— The maximum aggregate amount of repayable advances to the Superfund which is outstanding at any one time shall not exceed an amount equal to the amount which the Secretary estimates will be equal to the sum of the amounts appropriated to the Superfund under subsection (b)(1) during the following 24 months. "(3) Repayment of advances.— "(A) In general. — Advances made to the Superfund shall be repaid, and interest on such advances shall be paid, to the general fund of the Treasury when the Secretary deter- mines that moneys are available for such purposes in the Superfund. "(B) Final repayment. — No advance shall be made to the Superfund after December 31, 1991, and all advances to such Fund shall be repaid on or before such date. "(C) Rate of interest. — Interest on advances made to the Superfund shall be at a rate determined by the Secretary of the Treasury (as of the close of the calendar month preced- ing the month in which the advance is made) to be equal to the current average market yield on outstanding market- able obligations of the United States with remaining peri- ods to niaturity comparable to the anticipated period during which the advance will be outstanding and shall be compounded annually. "(e) Liability of United States Limited to Amount in Trust Fund.— "(1) General rule.— Any claim filed against the Superfund may be paid only out of the Superfund. "(2) Coordination with other provisions— Nothing in CERCLA or the Superfund Amendments and Reauthorization Act of 1986 (or in any amendment made by either of such Acts) shall authorize the payment by the United States Government of any amount with respect to any such claim out of any source other than the Superfund. "(3) Order in which unpaid claims are to be paid — If at any time the Superfund has insufficient funds to pay all of the claims payable out of the Superfund at such time, such claims shall, to the extent permitted under paragraph (1), be paid in full in the order in which they were finally determined." (b) Authorization of Appropriations.— There is authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, to the Hazardous Substance Superfund for fiscal year — (1) 1987, $250,000,000, (2) 1988, $250,000,000, (3) 1989, $250,000,000, (4) 1990, $250,000,000, and (5) 1991, $250,000,000, plus for each fiscal year an amount equal to so much of the aggregate amount authorized to be appropriated under this subsec- Claims. 42 use 9601 note. 26 use 9507 note. 162 100 STAT. 1774 PUBLIC LAW 99-499— OCT. 17, 1986 tion (and paragraph (2) of section 221(b) of the Hazardous Substance 42 use 9631. Response Act of 1980, as in effect before its repeal) as has not been appropriated before the beginning of the fiscal year involved. (c) Conforming Amendments. — 42 use (1) Subtitle B of the Hazardous Substance Response Revenue 9631-9633. Act of 1980 (relating to establishment of Hazardous Substance Response Trust Fund), as amended by section 204 of this Act, is hereby repealed. 42 use 9601. (2) Paragraph (11) of section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 is amended to read as follows: "(11) The term 'Fund' or Trust Fund' means the Hazardous Substance Superfund established by section 9507 of the Internal 26 use 9507. Revenue Code of 1986." (d) Clerical Amendment.— The table of sections for subchapter A of chapter 98 of such Code is amended by adding after the item relating to section 9506 the following new item: "Sec. 9507. Hazardous Substance Superfund." 26 use 9507 (e) Effective Date.— note. (1 ) In general. — The amendments made by this section shall take effect on January 1, 1987. (2) Superfund treated as continuation of old trust FUND —The Hazardous Substance Superfund established by the amendments made by this section shall be treated for all pur- poses of law as a continuation of the Hazardous Substance Response Trust Fund established by section 221 of the Hazard- 42 use 9631 ous Substance Response Revenue Act of 1980. Any reference in any law to the Hazardous Substance Response Trust Fund established by such section 221 shall be deemed to include (wherever appropriate) a reference to the Hazardous Substance Superfund established by the amendments made by this section. PART II— LEAKING UNDERGROUND STORAGE TANK TRUST FUND AND ITS REVENUE SOURCES SEC. 521. ADDITIONAL TAXES ON GASOLINE. DIESEL FUEL. SPECIAL MOTOR FUELS, FUELS USED IN AVIATION. AND FUELS USED IN COMMERCIAL TRANSPORTATION ON INLAND WATERWAYS. (a) General Rule. — (1) Gasoline.— (A) Gasoline tax before amendment by tax reform act of 1986.— 26 use 4081. (i) In general.— Section 4081 of the Internal Reve- nue Code of 1986 (relating to imposition of tax on gasoline), as in effect on the day before the date of the enactment of the Tax Reform Act of 1986, is amended by striking out subsections (a) and (b) and inserting in lieu thereof the following: "(a) In General.— There is hereby imposed on gasoline sold by the producer or importer thereof, or by any producer of gasoline, a tax at the rate specified in subsection (b). "(b) Rate of Tax.— "(1) In general.— The rate of the tax imposed by this section is the sum of — "(A) the Highway Trust Fund financing rate, and 163 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1775 "(B) the Leaking Underground Storage Tank Trust Fund financing rate. "(2) Rates.— For purposes of paragraph (D— "(A) the Highway Trust Fund financing rate is 9 cents a gallon, and r. j "(B) the Leaking Underground Storage Tank Trust bund financing rate is 0.1 cents a gallon." (ii) Termination.— Section 4081 of such Code, as so in Ante, p. 1774. effect, is amended by adding at the end thereof the following new subsection: '(d) Termination.— "(1) Highway trust fund financing rate. — On and alter October 1, 1988, the Highway Trust Fund financing rate under subsection (bK2)(A) shall not apply. "(2) Leaking underground storage tank trust fund FINANCING RATE.— ^ , , ^ "(A) In general.— The Leaking Underground Storage Tank Trust Fund financing rate under subsection (b)(2)(B) shall not apply after the earlier of— "(i) December 31, 1991, or "(ii) the last day of the termination month. "(B) Termination month —For purposes of subpara- graph (A), the termination month is the 1st month as of the close of which the Secretary estimates that the net reve- nues from the taxes imposed by this section (to the extent attributable to the Leaking Underground Storage Tank Trust Fund financing rate under subsection (b)(2KB)), sec- tion 4041(d), and section 4042 (to the extent attributable to Post, p. 1776. the Leaking Underground Storage Tank Trust Fund financ- ing rate under section 4042(b)) are at least $500,000,000. Post, p. 1777. "(C) Net revenues.— For purposes of subparagraph (B), the term 'net revenues' means the excess of gross revenues over amounts payable by reason of section 9508(cM2) (relat- ing to transfer from Leaking Underground Storage Tank Trust Fund for certain repayments and credits)." (iii) Technical amendments.— Subsection (c) of section 4081 of such Code, as so in effect, is amended— (I) by striking out "subsection (a)" in paragraph (1) and inserting in lieu thereof "subsection (b)", and , ^ , (II) by striking out "a rate" in paragraph (2) and inserting in lieu thereof "a Highway Trust Fund financing rate". (B) Gasoline tax as amended by tax reform act of 1986.— , ^ r (i) In general.— Subsections (a) and (b) of section 4081 of the Internal Revenue Code of 1986 (relating to imposition of tax on gasoline), as amended by the Tax Reform Act of 1986, are each amended by striking out "of 9 cents a gallon" and inserting in lieu thereof "at the rate specified in subsection (d)". (ii) Increase in tax.— Section 4081 of such Code, as amended by the Tax Reform Act of 1986, is amended by striking out subsection (d) and inserting in lieu thereof the following new subsections: "(d) Rate of Tax.— 164 100 STAT. 1776 PUBLIC LAW 99-499— OCT. 17, 1986 Infra; 26 USC 4042. Post, p. 1777. \ "(1) In general.— The rate of the tax imposed by this section is the sum of — "(A) the Highway Trust Fund financing rate, and "(B) the Leaking Underground Storage Tank Trust Fund financing rate. "(2) Rates. — For purposes of paragraph (1) — "(A) the Highway Trust Fund financing rate is 9 cents a gallon, and "(B) the Leaking Underground Storage Tank Trust Fund financing rate is 0.1 cents a gallon. "(e) Termination. — "(1) Highway trust fund financing rate.— On and after October 1, 1988, the Highway Trust Fund financing rate under subsection (dX2)(A) shall not apply. "(2) Leaking underground storage tank trust fund financing rate. — "(A) In general.— The Leaking Underground Storage Tank Trust Fund financing rate under subsection (d)(2)(B) shall not apply after the earlier of— "(i) December 31, 1991, or "(ii) the last day of the termination month. "(B) Termination month. — For purposes of subpara- graph (A), the termination month is the 1st month as of the close of which the Secretary estimates that the net reve- nues from the taxes imposed by this section (to the extent attributable to the Leaking Underground Storage Tank Trust Fund financing rate under subsection (d)(2)(B)), sec- tion 4041(d), and section 4042 (to the extent attributable to the Leaking Underground Storage Tank Trust Fund financ- ing rate under section 404203)) are at least $500,000,000. "(C) Net revenues.— For purposes of subparagraph (B), the term 'net revenues' means the excess of gross revenues over amounts payable by reason of section 9508(cX2) (relat- ing to transfer from Leaking Underground Storage Tank Trust Fund for certain repayments and credits)." (iii) Technical amendments. — Subsection (c) of sec- tion 4081 of such Code, as amended by the Tax Reform Act of 1986, is amended — (I) by striking out "subsection (a)" in paragraph (1) and inserting in lieu thereof "subsection (d)", and (II) by striking out "a rate" in paragraph (2) and inserting in lieu thereof "a Highway Trust Fund financing rate". (2) Diesel and special motor fuels; fuels used in avia- tion. — Section 4041 of such Code (relating to tax on special fuels) is amended by redesignating subsection (d) as subsection (e) and by inserting after subsection (c) the following new subsection: "(d) Additional Taxes To Fund Leaking Underground Storage Tank Trust Fund. — "(1) Liquids other than gasoline, etc., used in motor ve- hicles, MOTORBOATS, OR TRAINS. — In addition to the taxes im- posed by subsection (a), there is hereby imposed a tax of 0.1 cents a gallon on benzol, benzene, naphtha, casing head and natural gasoline, or any other liquid (other than kerosene, gas 165 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1777 oil, liquefied petroleum gas, or fuel oil, or any product taxable under section 4081)— 26 USC 4081. "(A) sold by any person to an owner, lessee, or other operator of a motor vehicle, motorboat, or train for use as a fuel in such motor vehicle, motorboat, or train, or "(B) used by any person as a fuel in a motor vehicle, motorboat, or train unless there was a taxable sale of such liquid under subparagraph (A). "(2) Liquids used in aviation. — In addition to the taxes imposed by subsection (c) and section 4081, there is hereby imposed a tax of 0.1 cents a gallon on any liquid — "(A) sold by any person to an owner, lessee, or other operator of an aircraft for use as a fuel in such aircraft, or "(B) used by any person as a fuel in an aircraft unless there was a taxable sale of such liquid under subparagraph (A). The tax imposed by this paragraph shall not apply to any product tax2i)le under section 4081 which is used as a fuel in an aircraft other than in noncommercial aviation. "(3) Termination. — The taxes imposed by this subsection shall not apply during any period during which the Leaking Underground Storage Tank Trust Fund financing rate under section 4081 does not apply." (3) Fuel used in commercial transportation on inland WATERWAYS. — SubsectioD (b) of section 4042 of such Code (relat- ing to amount of tax on fuel used in commercial transportation on inland waterways) is amended to read as follows: "(b) Amount of Tax.— "(1) In general. — The rate of the tax imposed by subsection (a) is the sum of — "(A) the Inland Waterways Trust Fund financing rate, and "(B) the Leaking Underground Storage Tank Trust Fund financing rate. "(2) Rates. — For purposes of paragraph (1) — "(A) the Inland Waterways Trust Fund financing rate is 10 cents a gallon, gmd "(B) the Leaking Underground Storage Tank Trust Fund financing rate is 0.1 cents a gallon. "(3) Exception for fuel taxed under section 404i(d). — The Leaking Underground Storage Tank Trust Fund financing rate under paragraph (2XB) shall not apply to the use of any fuel if tax under section 4041(d) was imposed on the sale of such fuel or Ante. p. 1776 is imposed on such use. "(4) Termination of leaking underground storage tank trust fund financing rate. — The Leaking Underground Stor- age Tank Trust Fund financing rate under paragraph (2XB) shall not apply during any period during which the Leaking Underground Storage Tank Trust Fund financing rate under section 4081 does not apply." (b) Additional Taxes Not Transferred to Highway Trust Fund, Airport and Airway Trust Fund, and Inland Waterways Trust Fund. — (1) Highway trust fund — (A) In general. — Subsection (b) of section 9503 of such Code (relating to transfer to Highway Trust Fund of 166 100 STAT. 1778 PUBLIC LAW 99-499— OCT. 17, 1986 amounts equivalent to certain taxes) is amended by adding at the end thereof the following new paragraph: "(4) Certain additional taxes not transferred to highway TRUST FUND. — For purposes of paragraphs (1) and (2), there shall Ante, p. 1776 not be taken into account the taxes imposed by section 4041(d) 26 use 4081. and so much of the taxes imposed by section 4081 as is attrib- utable to the Leaking Underground Storage Tank Trust Fund financing rate." (B) Conforming amendment. — Subparagraph (D) of sec- tion 9503(c)(4) of such Code (defining motorboat fuel taxes) is amended by striking out "section 4081" and inserting in lieu thereof "section 4081 (to the extent attributable to the Highway Trust Fund financing rate)". (2) Airport and airway trust fund. — Subsection (b) of sec- tion 9502 of such Code (relating to transfer to Airport and Airway Trust Fund of amounts equivalent to certain taxes) is amended — (A) by striking out "subsections (c) and (d) of section 4041" in paragraph (1) and inserting in lieu thereof "subsections (c) and (e) of section 4041", and (B) by striking out "section 4081" in paragraph (2) and inserting in lieu thereof "section 4081 (to the extent attrib- utable to the Highway Trust Fund financing rate)". (3) Inland waterways trust fund.— -Paragraph (1) of section 9506(b) of such Code is amended by adding at the end thereof the following new sentence: "The preceding sentence shall apply only to so much of such taxes as are attributable to the Inland Waterways Trust Fund financing rate under section 4042(b)." (c) Repayments for Gasoline Used on Farms, Etc.— (1) Gasoline used on farms.— Subsection (h) of section 6420 of such Code (relating to termination) is amended by striking out "This section" and inserting in lieu thereof "Except with respect to taxes imposed by section 4081 at the Leaking Under- ground Storage Tank Trust Fund financing rate, this section". (2) Gasoline used for certain nonhighway purposes or by LOCAL transit SYSTEMS.— (A) Termination not to apply to additional o.i cent TAX. — Subsection (h) of section 6421 of such Code (relating to effective date), as in effect on the day before the date of the enactment of the Tax Reform Act of 1986, is amended by striking out "This section" and inserting in lieu thereof "Except with respect to taxes imposed by section 4081 at the Leaking Underground Storage Tank Trust Fund financ ing rate, this section". (B) Repayment of additional tax for off-highway busi- ness USE TO APPLY ONLY TO CERTAIN VESSELS.— Subsection (e) of section 6421 of such Code, as so in effect, is amended by adding at the end thereof the following new paragraph: "(4) Section not to apply to certain off-highway business USES WITH respect TO THE TAX IMPOSED BY SECTION 4081 AT THE LEAKING UNDERGROUND STORAGE TANK TRUST FUND FINANCING Fish and fishing RATE. — This section shall not apply with respect to the tax imposed by section 4081 at the Leaking Underground Storage Tank Trust Fund financing rate on gasoline used in any off- highway business use other than use in a vessel employed in the fisheries or in the whaling business." 167 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1779 (3) Fuels used for nontaxable purposes. — (A) Subsection (m) of section 6427 of such Code (relating to termination), as in effect on the day before the date of the enactment of the Tax Reform Act of 1986, is amended by striking out "Subsections" and inserting in lieu thereof "Except with respect to taxes imposed by section 404 1(d) and section 4081 at the Leaking Underground Storage Tank Trust Fund financing rate, subsections". (B)(i) Section 6427 of such Code, as so in effect, is amended by redesignating subsection (n) as subsection (o) and by inserting after subsection (m) the following new subsection: "(n) Payments For Taxes Imposed by Section 4041(d).— For pur- poses of subsections (a), (b), and (c), the taxes imposed by section 4041(d) shall be treated as imposed by section 4041(a)." (ii) Subparagraph (A) of section 1703(e)(1) of the Tax Reform Act of 1986 is amended — (I) by striking out "and (o)" and inserting in lieu thereof "(o), and (p)", and (II) by striking out "and (n)" and inserting in lieu thereof "(n), and (o)". (C) Paragraph (1) of section 6427(0 of such Code (relating to gasoline used to produce certain alcohol fuels) is amended by striking out "at the rale" and inserting in lieu thereof "at the Highway Trust Fund financing rate". (d) Continuation of Certain Exemptions From Additional Taxes, Etc.— (1) Subsection (b) of section 4041 of such Code (relating to exemption for off-highway business use; reduction in tax for qualified methanol and ethanol fuel) is amended by adding at the end thereof the following new paragraph: "(3) Coordination with taxes imposed by subsection (d).— "(A) Off-highway business use — "(i) In general. — Except as provided in clause (ii), rules similar to the rules of paragraph (1) shall apply with respect to the taxes imposed by subsection (d). "(ii) Limitation on exemption for off-highway BUSINESS USE. — For purposes of subparagraph (A), para- graph (1) shall apply only with respect to off-highway business use in a vessel employed in the fisheries or in the whaling business. "(B) Qualified methanol and ethanol fuel. — In the case of qualified methanol or ethanol fuel, subsection (d) shall be applied by substituting '0.05 cents' for '0.1 cents' in paragraph (1) thereof." (2) Paragraph (3) of section 4041(f) of such Code (relating to exemption for farm use) is amended by striking out "On and after" and inserting in lieu thereof "Except with respect to the taxes imposed by subsection (d), on and after". (3) The last sentence of section 4041(g) of such Code (relating to other exemptions) is amended by striking out "Paragraphs'' and inserting in lieu thereof "Except with respect to the taxes imposed by subsection (d), paragraphs". (4KA) The last sentence of section 4221(a) of such Code (relat- ing to certain tax-free sales) is amended by striking out '4081" and inserting in lieu thereof "4081 (at the Highway Trust Fund financing rate)". 26 use 6427. Ante. p. 1776. 26 use 6427 Vessels. Fish and fishing. 168 100 STAT. 1780 PUBLIC LAW 99-499— OCT. 17, 1986 \ 26 use 4221 (B) Subparagraph (C) of sectiorx 1703(cX2) of the Tax Reform - Act of L9^6Js amended to read as follows: "(C) Subsection (a) of section 4221 (relating to certain tax- free sales) is amended — "(i) by inserting 'or section 4081 (at the Highway Trust Fund financing rate)' before 'section 4121' in the 1st sentence, and "(ii) by striking out '4071, or 4081 (at the Highway Trust Fund financing rate)' in the last sentence and inserting in lieu thereof 'or 4071'." (5) Paragraph (2) of section 6416(b) of such Code is amended by inserting "or under paragraph (1)(A) or (2)(A) of section 4041(d)" after "section 4041(a)". 26 use 4041 (e) Effective Date. — The amendments made by this section shall note. take effect on January 1, 1987. SEC. 522. LEAKING UNDERGROUND STORAGE TANK TRUST FUND. (a) In General. — Subchapter A of chapter 98 of the Internal Revenue Code of 1986 (relating to establishment of trust funds) is amended by adding after section 9507 the following new section: 26 use 9508 "SEC. 9508. LEAKING UNDERGROUND STORAGE TANK TRUST FUND. "(a) Creation of Trust Fund.— There is established in the Treas- ury of the United States a trust fund to be known as the 'Leaking Underground Storage Tank Trust Fund', consisting of such amounts as may be appropriated or credited to such Trust Fund as provided in this section or section 9602(b). "(b) Transfers to Trust Fund. — There are hereby appropriated to the Leaking Underground Storage Tank Trust Fund amounts equivalent to — "(1) taxes received in the Treasury under section 4041(d) (relating to additional taxes on motor fuels), "(2) taxes received in the Treasury under section 4081 (relat- ing to tax on gasoline) to the extent attributable to the Leaking Underground Storage Tank Trust Fund financing rate under such section, "(3) taxes received in the Treasury under section 4042 (relat ing to tax on fuel used in commercial transportation on inland waterways) to the extent attributable to the Leaking Under- ground Storage Tank Trust Fund financing rate under such section, and "(4) amounts received in the Treasury and collected under Ante, p 1698 section 9003(hK6) of the Solid Waste Disposal Act. "(c) Expenditures. — "(1) In general. — Except as provided in paragraph (2), amounts in the Leaking Underground Storage Tank Trust Fund shall be available, as provided in appropriation Acts, only for purposes of making expenditures to carry out section 9003(h) of the Solid Waste Disposal Act as in effect on the date of the enactment of the Superfund Amendments and Reauthorization Act of 1986. "(2) Transfers from trust fund for certain repayments AND credits. — "(A) In general. — The Secretary shall pay from time to time from the Leaking Underground Storage Tank Trust Fund into the general fund of the Treasury amounts equivalent to — 169 PUBLIC LAW 99-499— OCT. 17, 1986 100 STAT. 1781 "(i) amounts paid under — "(I) section 6420 (relating to amounts paid respect of gasoline used on farms), "(ID section 6421 (relating to amounts paid in respect of gasoline used for certain nonhighway purposes or by local transit systems), and "(III) section 6427 (relating to fuels not used for taxable purposes), and "(ii) credits allowed under section 34, with respect to the taxes imposed by sections 4041(d) and 4081 (to the extent attributable to the Leaking Underground Stor- age Tank Trust Fund financing rate under section 4081). "(B) Transfers based on estimates. — Transfers under subparagraph (A) shall be made on the basis of estimates by the Secretary, and proper adjustments shall be made in amounts subsequently transferred to the extent prior esti- mates were in excess of or less than the amounts required to be transferred. "(d) Liability of the United States Limited to Amount in Trust Fund. — "(1) General rule.— Any claim filed against the Leaking Underground Storage Tank Trust Fund may be paid only out of such Trust Fund. "(2) Coordination with other provisions. — Nothing in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 or the Superfund Amendments and Re- authorization Act of 1986 (or in any amendment made by either of such Acts) shall authorize the payment by the United States Government of any amount with respect to any such claim out of any source other than the Leaking Underground Storage Tank Trust Fund. "(3) Order in which unpaid claims are to be paid. — If at any time the Leaking Underground Storage Tank Trust Fund has insufficient funds to pay all of the claims out of such Trust Fund at such time, such claims shall, to the extent permitted under paragraph (1), be paid in full in the order in which they were finally determined." (b) Clerical Amendment.— The table of sections for subchapter A of chapter 98 of such Code is amended by adding after the item relating to section 9507 the following new item: "Sec. 9508. Leaking Underground Storage Tank Trust Fund." (c) Effective Date. — The amendments made by this section shall take effect on January 1, 1987. in 26 use 6420. Ante, p. 1776. Claims. 42 use 9601 note. 26 use 9508 note. 170 100 STAT. 1782 PUBLIC LAW 99-499— OCT. 17, 1986 42 use 9601 note. PART III— COORDINATION WITH OTHER PROVISIONS OF THIS ACT. SEC. 531. COORDINATION. Notwithstanding any provision of this Act not contained in this title, any provision of this Act (not contained in this title) which— (1) imposes any tax, premium, or fee, (2) establishes any trust fund, or (3) authorizes amounts to be expended from any trust fund, shall have no force or etfect. Approved October 17, 1986. -J LEGISLATIVE HISTORY — H.R. 2005 (H.R. 2817) (S. 51): HOUSE REPORTS: No. 99-69 (Comm. on Ways and Means); No. 99-253, Pt. 1 (Comm on Energy and Commerce), Pt. 2 (Comm. on Ways and Means), Pt. 3 (Comm. on the Judiciary), Pt. 4 (Comm. on Merchant Marme and Fisheries), Pt. 5 (Comm. on Public Works and Transporta- tion), all accompanying H.R. 2817; and No 99-962 (Comm of Conference). SENATE REPORTS: No. 99-11 (Comm. on Environment and Public Works) and No 99-73 (Comm. on Finance), both accompanying S. 51. CONGRESSIONAL RECORD: Vol. 131 (1985): May 14, considered and passed House. Sept. 17-20, 24, 26, considered and passed Senate, amended, m lieu of S. 51. Dec. 5, 6, 10, H.R. 2817 considered and passed House; House agreed to Senate amendments to H.R. 2005 with amend- ments, inserting in lieu the text and title of H.R. 2817. Vol. 132 (1986): Oct. 3, Senate agreedto conference report. Oct. 8, House agreed to conference report. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 22 (1986): Oct. 17, Presidential statement. o 171 [From Weekly Compilation of Presidential Documents, vol. 22, No. 43, Oct. 27, 1986, p. 1412] Superfund Amendments and Reauthorization Act of 1986 Statement on Signing H.R. 2005 Into Law. October 17, 1986 I have today signed the reauthorization legislation of the Superfund program. My overriding concern has been the continu- ation of ovir progress to cleanup hazardous waste sites that endanger the health and safety of our citizens. All Americans can expect no less from their government. While I approve of the programmatic changes in the Superfund legislation, I have expressed concern in the past regarding the level of funding and the funding mecha- nism itself. I am assured by the Administra- tor of the Environmental Protection Agency that the Agency will spend only what is necessary to accomplish the objec- tives of the program and no more. I have always been opposed to any broad- based tax as a new revenue source for Su- perfund; therefore, I have carefully studied the taxing provisions of the current Super- fund legislation. First, it is not a general tax on all American businesses, but affects only larger corporations that have to pay the al- ternative minimum tax — that is, corpora- tions who, because of special deductions, ex- emptions, etc., do not pay the normal tax rate which under the tax reform act will be 34 percent. Additionally, this tax appHes only to corporations with an alternative minimum tax of $2 million and over, and this tax is deductible from regular taxable income. Moreover, this environmental tax is earmarked only for Superfund and goes into a trust fvmd set up for that purpose alone. It is not a tax that can be used for general revenue purposes. I have been assured by Senator Dole, Senator Stafford, and 48 other Senators that they will support my vetoing of either a general purpose broad-based tax or an in- crease in the amount of this special purpose tax to provide funding for the Superfund program. It is important that the Federal Govern- ment continue the work of environmental cleanup in a maimer consistent with our overall objectives. I believe that this legisla- tion, although at some variance with our original proposals, meets these objectives. Note: As enacted, H.R. 2005 is Public Law 99-499, approved October 17. THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABIL- ITY ACT OF 1980 (SUPERFUND) (P.L. 96- 510) AS AMENDED BY THE SUPERFUND AMENDMENTS AND REAU- THORIZATION ACT OF 1986 (P.L. 99-499) (173) 175 CONTENTS TITLE I— HAZARDOUS SUBSTANCES RELEASES. LIABILITY, COMPENSATION Section: Page 101— Definitions 1 102— Reportable quantities and additional designations 9 103 — Notices, penalties 10 104 — Response authorities 12 105 — National contingency plan 31 106 — Abatement action 35 107— Liability 36 108 — Financial responsibility 46 109 — Civil penalties and awards 49 110 — Employee protection 52 111— Uses of fund 53 112 — Claims procedure 60 113 — Litigation, jurisdiction, and venue 65 114 — Relationship to other law 70 115 — Authority to delegate, issue regulations 71 116— Schedules 71 117 — Public participation 72 118 — High priority for drinking water supplies 73 119 — Response action contractors 74 120— Federal facilities 78 121 — Cleanup standards 83 122— Settlements 90 123 — Reimbursement to local governments 100 124 — Methane recovery 100 125— Section 3001(bX3XAXi) waste 101 126— Indian tHbes „ 101 TITLE II— HAZARDOUS SUBSTANCE RESPONSE REVENUE ACT OF 1980 Section: 201— Short title; amendment of 1954 code 102 Subtitle A— Imposition of Taxes on Petroleum and Certain Chemicals Section: 211— Imposition of taxes 102 [Subtitle B — Estabushmei^ of Hazardous Substance Response Trust Fund [Section: [221 — Establishment of hazardous substance response trust fund 113 [222— Liability of United States limited to amount in trust fund 114 [223 — Administrative provisions 1141 Subtitle C— Post-Closure Tax and Trust Fund Section: 231 — Imposition of tax 116 232— Post-closure liability trust fund 117 TITLE III— MISCELLANEOUS PROVISIONS Section: 301— Reports and studies 117 (III) 75-032 0-90 176 « . ^ IV Page Section — Continued 302— Effective dates, savings provision 123 [303 — Expiration, sunset provision '''',] 123J 304 — Conforming amendments !.!!!!!!.! 123 305 — L^islative veto 124 306 — Transportation !.!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 125 307— Assistant Administrator for Solid Waste !!!!!!!!!!!!!!.....!!!!!!!!!!.! 125 308 — Separability ]] 126 309— Actions under State law for damages from exposure to hazardous substances 126 310— Citizen suits !!!!!!!!!!!!!!!!!!... 127 311— Research, development, ami demonstration 128 312— Love Canal property acquisition 136 TITLE IV— POLLUTION INSURANCE Section: 401— Definitions I37 402 — State laws; scope of title „.,. 138 403— Risk retention groups „„ . 138 404 — Purchasing groups ,„ ' 140 405— Applicability of securities laws 141 PROVISIONS OF THE SUPERFUND .\MENDMENTS AND REAUTHORIZA- TION ACT OF 1986 WHICH DO NOT AMEND PUBLIC LAW 96-510 (CERCLA) Section: 118 — Miscellaneous provisions 143 120— Federal facilities ".'.Z 150 121 — Cleanup standards 150 124— Methane recovery 151 126 — Worker protection standards 151 127— Liability limits for ocean incineration vessels 153 203— State procedural reform 153 205 — Cleanup of petroleum from leaking underground storage tanks 154 209— Research, development, and demonstration 161 211— Department of Diefense environmental restoration program 162 213— Love Canal property acquisition 169 TITLE III-EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW Subtitle A— Emergency Planning and Notification Section: 300— Short title, table of contents 169 301 — Establishment of State commissions, planning districts, and local committees 170 302— Substances and facilities covered and notification 171 303 — Comprehensive emergency response plans 172 304— Emergency notification 174 305— Emergency training and review of emergency systems 176 Subtitle B— Reporting Requirements Section: 311— Material safety data sheets 177 312 — Emergency and hazardous chemical inventory forms 179 313— Toxic chemical release forms 182 Subtitle C — General Provisions Section: 321— Relationship to other law 189 322— Trade secrets 189 323— Provision of information to health professionals, doctors, nurses 193 324— Public availability of plans, data sheets, forms, and followup notices. 195 325— Enforcement 195 326— Civil action 198 177 Page Section — Continued 327— Exemption 200 328— Regulations 200 329— Definitions 200 330 — Authorization of appropriations 201 TITLE IV— RADON GAS AND INDOOR AIR QUALITY RESEARCH Section: 401-Short title 201 402— Findings 201 403— Radon gas and indoor air quality research program 201 404— Construction of title 203 405 — Authorizations 203 TITLE V— AMENDMENTS OF THE INTERNAL REVENUE CODE OF 1986 Section: 501— Short title 203 Part I— Superfund and Its Revenue Sources Section: 511 — Extension of environmental taxes 203 512 — Increase in tax on petroleum 204 513 — Changes relating to tax on certain chemicals 204 514 — Repeal of post-closure tax and trust fund 210 515— Tax on certain imported substances derived from taxable chemicals . 211 516 — Environmental tax 213 517— Hazardous substance superfund 215 Part n- -Leaking Underground Storage Tank Trust Fund and Its Revenue Sources Section: j 521— Additional taxes on gasoline, diesel fuel, special motor fuels, fuels used in aviation, and fuels used in commercial transporta- tion on inland waters 522 — Leaking underground storage tank trust fund 218 224 179 NOTE Amendments made by the Superfund Amendments and Reau- thorization Act of 1986 (P.L. 99-499) are shown as follows: Language to be omitted is enclosed in black brackets; new lan- guage is printed in italic; and language where there is no change is printed in roman. Public Law 96-510 96th Congress An Act To provide for liability, compensation, cleanup, and emergency response for haz- ardous substances released into the environment and the cleanup of inactive haz- ardous waste disposal sites. Be it enacted by the Senate and House of Representatives of the United States of American in Congress assembled, That this Act may be cited as the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980". TITLE I— HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION DEFINITIONS Sec. 101. For purpose of this title [, the termj — (1) The term "act of God" means an unanticipated grave nat- ural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight [;]. (2) The term "Administrator" means the Administrator of the United States Environmental Protection Agency [;]. (3) The term "barrel" means forty-two United States gallons at sixty degrees Fahrenheit [;]. (4) The term "claim" means a demand in writing for a sum certain [;]. (5) The term "claimant" means any person who presents a claim for compensation under this Act[;3. (6) The term "damages" means damages for injury or loss of natural resources as set forth in section 107(a) or 111(b) of this Act[;]. (7) The term "drinking water supply" means any raw or fin- ished water source that is or may be used by a public water system (as defined in the Safe Drinking Water Act) or as drinking water by one or more individuals [;]. (1) 180 (8) The term ''environment" means (A) the navigable waters, the waters of the contiguous zone, and the ocean waters of which the natural resources are under the exclusive manage- ment authority of the United States under the Fishery Conser- vation and Management Act of 1976, and (B) any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States [; J. (9) The term "facility" means (A) any building, structure, ir- stallation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel [;]. (10) The term "federally permitted release" means (A) dis- charges in compliance with a permit under section 402 of the Federal Water Pollution Control Act, (B) discharges resulting from circumstances identified and reviewed and made part of the public record with respect to a permit issued or modified under section 402 of the Federal Water Pollution Control Act and subject to a condition of such permit, (C) continuous or an- ticipated intermittent discharges from a point source, identi- fied in a permit or permit application under section 402 of the Federal Water Pollution Control Act, which are caused by events occurring within the scope of relevant operating or treatment systems, (D) discharges in compliance with a legally enforceable permit under section 404 of the Federal Water Pol- lution Control Act, (E) releases in compliance with a legally en- forceable final permit issued pursuant to section 3005 (a) through (d) of the Solid Waste Disposal Act from a hazardous waste treatment, storage, or disposal facility when such permit specifically identifies the hazardous substances and makes such substances subject to a standard of practice, control proce- dure or bioassay limitation or condition, or other control on the hazardous substances in such releases, (F) any release in compliance with a legally enforceable permit issued under sec- tion 102 of section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972, (G) any injection of fluids authorized under Federal underground injection control programs or State programs submitted for Federal approval (and not disapproved by the Administrator of the Environmental Protection Agency) pursuant to part C of the Safe Drinking Water Act, (H) any emission into the air subject to a permit or control regulation under section HI, section 112, title I part C, title I part D, or State implementation plans submitted in accordance with sec- tion 110 of the Clean Air Act (and not disapproved by the Ad- ministrator of the Environmental Protection Agency), includ- ing any schedule or waiver granted, promulgated, or approved under these sections, (I) any injection of fluids or other materi- als authorized under applicable State law (i) for the purpose of stimulating or treating wells for the production of crude oil, natural gas, or water, (ii) for the purpose of secondary, terti- 181 3 ary, or other enhanced recovery of crude oil or natural gas, or (iii) which are brought to the surface in conjunction with the production of crude oil or natural gas and which are reinject- ed (J) the introduction of any pollutant into a publicly ovmed treatment works when such pollutant is specified m and in compliance with applicable pretreatment standards of section 307 (b) or (c) of the Clean Water Act and enforceable require- ments in a pretreatment program submitted by a State or mu- nicipality for Federal approval under section 402 of such Act, and (K) any release of source, special nuclear, or byproduct material, as those terms are defined in the Atomic Energy Act of 1954, in compliance with a legally enforceable license, permit, regulation, or order issued pursuant to the Atomic Energy Act of 1954 [;1. ,„ , „ [(11) The term "Fund" or "Trust Fund" means the Hazard- ous Substance Response Fund established by section 221 of this Act or, in the case of a hazardous waste disposal facility for which liability has been transferred under section 107(k) ot this Act, the Post-closure Liability Fund established by section 232 of this Act;] „ ,„ .^ rr ^ (11) The term ''Fund*' or ''Trust Fund'' means the Hazardous Substance Superfund established by section 9507 of the Internal Revenue Code of 1986. . ^ xj (12) The term "ground water" means water in a saturated zone or stratum beneath the surface of land or water [;]. (13) The term "guarantor" means any person, other than the owner or operator, who provides evidence of fmancial responsi- bility for an owner or operator under this Act[;l . (14) The term "hazardous substance" means (A) any sub- stance designated pursuant to section 311(bX2XA) of the Feder- al Water Pollution Control Act, (B) any element, compound, mixture, solution, or substance designated pursuant to section 102 of this Act, (C) any hazardous waste having ^he character- istics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act (but not including any waste the reg- ulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress), (D) any toxic pollutant listed under section 307(a) of the Federal Water Pollution Control Act, (E) any hazardous air pollutant listed under section IIZ ot the Clean Air Act, and (F) any immmently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 7 of the Toxic Substances Control Act. The term does not include petroleum, mcluding crude oil or any fraction thereof which is not otherwise specifi- cally listed or designated as a hazardous substance under sub- paragraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied nat- ural gas, or synthetic gas usable for fuel (or mixtures of natu- ral gas and such synthetic gas) [;3. ,, . ^, ^ r^x.^ (15) The term "navigable waters" or "navigable waters of the United States" means the waters of the United States, mclud- ing the territorial seas [;]. 1 J r- 1. '^A^'f^ (16) The term "natural resources" means land, fish, wildlile, biota, air, water, ground water, drinking water supplies, and 182 hi L^i resources belon^ng to, managed by, held in trust ^^k.^Ff^^'A-''^ .u' '''' otherwise controlled by the United SLwiir^ hv'ir^l'f ^"""^^ of the fishery conservation zone ^ mfi) ^nXift ^"^^^^1 Conservation and Management Act Prn^lfr i^ State or local government, [orj any foreign gov- ernmentCJ, any Indian tribe, or, if such resources are subject tribe ^^^^^^^^^^^ o/i alienation, any member of an Indian tiiV^i ^^f i^'^ "offshore facility" means any facility of any tod located m, on, or under, any of the navigable waters of in fw ^^^•^^^' ^''i^/r ^?^^J^^/ °^ ^^y ^nd which is subject to the jurisdiction of the United States and is located in, on or vesleir^''^ other waters, other than a vessel or a public \r}}^l f^^/^r'". "onshore facility" means any facility (includ- ing, but not limited to, motor vehicles and rolling stock) of any Si^th?^;^t^"s^^^^^^^^^ ^"^ ^^^' ^^ nonnavigable water^ TTli?L^//^'^J" "otherwise subject to the jurisdiction of the United States means subject to the jurisdiction of the United States by virtue of United States citizenship. United States vessel documentation or numbering, or as provided by interna- J^^vW^l^^"^^ to which the United States is a party[;l. (^OXA The term owner or operator" means (i) in the case of a vessel, any person owning, operating, or chartering by demise, such vessel, (u) in the case of an onshore facility or an offshore facility, any person owning or operating such facility, and [(111) in the case of any abandoned facility, any person who owned, operated, or otherwise controlled activities at such tacility immediately prior to such abandonment.] (Hi) in the case of any facility, title or control of which was conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or simi- lar means to a unit of State or local government, any person who owned operated, or otherwise controlled activities at such facility immediately beforehand. Such term does not include a person who, without participating in the management of a vessel or tacility, holds indicia of ownership primarily to protect his security interest in the vessel or facility. (B) tin] In the case of a hazardous substance which has been accepted for transportation by a common or contract car- A®5 ?^?, ®xf ^Pt as provided in section 107(a) (3) or (4) of this Act, (1) the term owner or operator" shall mean such common carrier or other bona fide for hire carrier acting as an inde- pendent contractor during such transportation, (ii) the shipper of such hazardous substance shall not be considered to have caused or contributed to any release during such transporta- tion which resulted solely from circumstances or conditions beyond his control [;]. (C) [in] In the case of a hazardous substance which has been delivered by a common or contract carrier to a disposal or treatment facility and except as provided in section 107(a) (3) or (4) (i) the term owner or operator" shall not include such common or contract carrier, and (ii) such common or contract carrier shall not be considered to have caused or contributed to 183 any release at such disposal or treatment facility resulting from circumstances or conditions bevond its control [;]. (D) The term ''owner or operator' does not include a unit of State or local government which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandon- ment, or other circumstances in which the government involun- tarily acquires title by virtue of its function as sovereign. The exclusion provided under this paragraph shall not apply to any State or local government which has caused or contributed to the release or threatened release of a hazardous substance from the facility, and such a State or local government shall be sub- ject to the provisions of this Act in the same manner and to the same extent, both procedurally and substantively, as any non- governmental entity, including liability under section 107. (21) The term "person" means an individual, firm, corpora- tion, association, partnership, consortium, joint venture, com- mercial entity. United States Government, State, municipality, commission, political subdivision of a State, or any interstate bodyC;]. (22) The term ''release" means any spilling, leaking, pump- ing, pouring, emitting, emptying, discharging, injecting, escap- ing, leaching, dumping, or disposing into the environment (in- cluding the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous sub- stance or pollutant or contaminant), but excludes (A) any re- lease which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons, (B) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine, (C) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954, if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under section 170 of such Act, or, for the purposes of section 104 of this title or any other response action, any re- lease of source byproduct, or special nuclear material from any processing site designated under section 102(a)(1) or 302(a) of the Uranium Mill Tailings Radiation Control Act of 1978, and (D) the normal application of fertilizer [;]. (23) The terms "remove" or "removal" means the cleanup or removal of released hazardous substances from the environ- ment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environ- ment, such actions as may be necessary to monitor, gissess, and evaluate the release or threat of release of hazardous sub- stances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the envi- ronment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limit- ed to, security fencing or other measures to limit access, provi- sion of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for. 184 6 action taken under section 104(b) of this Act, and any emergen- cy assistance which may be provided under the Disaster Relief Actof 1974[;]. (24) The terms "remedy" or "remedial action" means those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environ- ment, to prevent or minimize the release of hazardous sub- stances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environ- ment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutral- ization, cleanup of released hazardous substances [or] and as- sociated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excava- tions, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and com- munity facilities where the President determines that, alone or in combination with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure dispo- sition offsite of hazardous substances, or may otherwise be nec- essary to protect the public health or [welfare. The term does not include offsite transport of hazardous substances, or the storage, treatment, destruction, or secure disposition offsite of such hazardous substances or contaminated materials unless the President determines that such actions (A) are more cost- effective than other remedial actions, (B) will create new ca- pacity to manage, in compliance with subtitle C of the Solid Waste Disposal Act, hazardous substances in addition to those located at the affected facility, or (C) are necessary to protect public health or welfare or the environment from a present or potential risk which may be created by further exposure to the continued presence of such substances or materials;] welfare; the term includes offsite transport and offsite storage, treat- ment, destruction, or secure disposition of hazardous substances and associated contaminated materials. (25) The terms "respond" or "response" means remove, re- moval, remedy, and remedial action, all such terms (including the terms ''removal'' and ''remedial action J include enforce- ment activities related theretol;"}. (26) The terms "transport" or "transportation" means the movement of a hazardous substance by any mode, including pipeline (as defined in the Pipeline Safety Act), and in the case of a hazardous substance which has been accepted for transpor- tation by a common or contract carrier, the term "transport" or "transportation" shall include any stoppage in transit which is temporary, incidental to the transportation movement, and at the ordinary operating convenience of a common or contract 185 carrier, and any such stoppage shall be considered as a conti- nuity of movement and not as the storage of a hazardous sub- stiince I * ■ (27) The terms "United States" and "State" include the sev- eral States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the North- ern Marianas, and any other territory cr possession over which the United States has jurisdiction [;]. (28) The term "vessel" means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water [;] . (29) The terms "disposal", "hazardous waste", and "treat- ment" shall have the meaning provided in section 1004 of the Solid Waste Disposal Act C;l. ^^ (30) The terms "territorial sea" and "contiguous zone shall have the meaning provided in section 502 of the Federal Water Pollution Control Act. (31) The term "national contingency plan" means the nation- al contingency plan published under section 311(c) of the Fed- eral Water Pollution Control Act or revised pursuant to section 105of this Act [; and]. (32) The terms "liable" or "liability" under this title shall be construed to be the standard of liability which obtains under section 311 of the Federal Water Pollution Control Act. (W The term "pollutant or contaminant" shall include, but not be limited to, any element, substance, compound, or mix- ture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly front the envi- ronment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavior- al abnormalities, cancer, genetic mutation, physiological mal- functions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring; except that the term ''pollutant or contaminant'' shall not include petrole- um, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous sub- stance under subparagraphs (A) through (F) of paragraph (U) and shall not include natural gas, liquefied natural gas, or syn- thetic gas of pipeline quality (or mixtures of natural gas and such synthetic gas). (3k) The term ''alternative water supplies'' includes, but is not limited to, drinking water and household water supplies. (35XA) The term "contractual relationship", for the purpose of section 107(bX3), includes, but is not limited to, land con- tracts, deeds or other instruments transferring title or posses- sion, unless the real property on which the facility concerned is located was acquired by the defendant after the disposal or placement of the hazardous substance on, in, or at the facility, and one or more of the circumstances described in clause (i), (ii), or (Hi) is also established by the defendant by a preponderance of the evidence: 186 (OAt the time the defendant acquired the facility the de- fendant did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in, or at the facility, (ii) The defendant is a government entity which acquired the facility by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent doniain authority by purchase or condemnation. (Hi) The defendant acquired the facility by inheritance or bequest. In addition to establishing the foregoing, the defendant must establish that he has satisfied the requirements of section 107(bX3) (a) and (b). (B) To establish that the defendant had no reason to know, as provided in clause (i) of subparagraph (A) of this paragraph, the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any special- ized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaniinated, 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) shall di- minish the liability of any previous owner or operator of such facility who would otherwise be liable under this Act. Notwith- standing this paragraph, if the defendant obtained actual knowledge of the release or threatened release of a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to another person without disclosing such knowledge, such defendant shall be treated as liable under section 107(a)(1) and no defense under section 107(b)(3) shall be available to such defendant. (D) Nothing in this paragraph shall affect the liability under this Act of a defendant who, by any act or omission, caused or contributed to the release or threatened release of a hazardous substance. (36) The term "Indian tribe" means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village but not including any Alaska Native re- gional or village corporation, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. (37)(A) The term 'service station dealer'' means any person — (i) who owns or operates a motor vehicle service station, filling station, garage, or similar retail establishment en- gaged in the business of selling, repairing, or servicing motor vehicles, where a significant percentage of the gross revenue of the establishment is derived from the fueling, re- pairing, or servicing of motor vehicles, and 187 (ii) who accepts for collection, accumulation, and delivery to an oil recycling facility, recycled oil that (I) has been re- moved from the engine of a light duty motor vehicle or household appliances by the owner of such vehicle or appli- ances, and (II) is presented, by such owner, to such person for collection, accumulation, and delivery to an oil recy- cling facility. (B) For purposes of section llJt(c), the term, ''service station dealer" shall, notwithstanding the provisions of subparagraph (A), include any government agency that establishes a facility solely for the purpose of accepting recycled oil that satisfies the criteria set forth in subclauses (I) and (II) of subparagraph (A)(ii), and, with respect to recycled oil that satisfies the criteria set forth in subclauses (I) and (II), owners or operators of refuse collection services who are compelled by State law to collect, ac- cumulate, and deliver such oil to an oil recycling facility. (C) The President shall promulgate regulations regarding the determination of what constitutes a significant percentage of the gross revenues of an establishment for purposes of this para- graph. (38) The term ''incineration vesseV means any vessel which carries hazardous substances for the purpose of incineration of such substances, so long as such substances or residues of such substances are on board. REPORTABLE QUANTITIES AND ADDITIONAL DESIGNATIONS Sec. 102. (a) The Administrator shall promulgate and revise as may be appropriate, regulations designating as hazardous sub- stances, in addition to those referred to in section 101(14) of this title, such elements, compounds, mixtures, solutions, and sub- stances which, when released into the environment may present substantial danger to the public health or welfare or the environ- ment, and shall promulgate regulations establishing that quantity of any hazardous substance the release of which shall be reported pursuant to section 103 of this title. The Administrator may deter- mine that one single quantity shall be the reportable quantity for any hazardous substance, regardless of the medium into which the hazardous substance is released. For all hazardous substances for which proposed regulations establishing reportable quantities were published in the Federal Register under this subsection on or before March 1, 1986, the Administrator shall promulgate under this sub- section final regulations establishing reportable quantities not later than December 31, 1986. For all hazardous substances for which proposed regulations establishing reportable quantities were not published in the Federal Register under this subsection on or before March 1, 1986, the Administrator shall publish under this subsec- tion proposed regulations establishing reportable quantities not later than December 31, 1986, and promulgate final regulations under this subsection establishing reportable quantities not later than April 30, 1988. (b) Unless and until superseded by regulations establishing a re- portable quantity under subsection (a) of this section for any haz- ardous substance as defined in section 101(14) of this title, (1) a 188 10 quantity of one pound, or (2) for those hazardous substances for which reportable quantities have been established pursuant to sec- tion 311(b)(4) of the Federal Water Pollution Control Act, such re- portable quantity, shall be deemed that quantity, the release of which requires notification pursuant to section 103 (a) or (b) of this title. a NOTICES, PENALTIES Sec. 103. (a) Any person in charge of a vessel or an offshore or an onshore facility shall, as soon as he has knowledge of any release (other than a federally permitted release) of a hazardous substance from such vessel or facility in quantities equal to or greater than those determined pursuant to section 102 of this title, immediately notify the National Response Center established under the Clean Water Act of such release. The National Response Center shall convey the notification expeditiously to all appropriate Govern- ment agencies, including the Governor of any affected State. (b) Any person — (1) in charge of a vessel from which a hazardous substance is released, other than a federally permitted release, into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, or (2) in charge of a vessel from which a hazardous substance is released, other than a federally permitted release, which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Fishery Conservation and Man- agement Act of 1976), and who is otherwise subject to the juris- diction of the United States at the time of the release, or (3) in charge of a facility from which a hazardous substance IS released, other than a federally permitted release in a quantity equal to or greater than that determined pursuant to section 102 of this title who fails to notify immediately the appro- priate agency of the United States Government as soon as he has knowledge of such release or who submits in such a notification any information which he knows to be false and misleading shall, upon conviction, be fined [not more than $10,000 or imprisoned for not more than one year, or both] in accordance with the applicable provisions of title 18 of the United States Code or imprisoned for not more than 3 years (or not more than 5 years in the case of a second or subsequent conviction), or both. Notification received pur- suant to this [paragraph] subsection or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement. (c) Within one hundred and eighty days after the enactment of this Act, any person who owns or operates or who at the time of disposal owned or operated, or who accepted hazardous substances for transport and selected, a facility at which hazardous substances (as defined in section 101(14)(C) of this title) are or have been stored, treated, or disposed of shall, unless such facility has a permit issued under, or has been accorded interim status under, subtitle C of the Solid Waste Disposal Act, notify the Administrator 189 11 of the Environmental Protection Agency of the existence of such facility, specifying the amount and type of any hazardous sub- stance to be found there, and any known, suspected, or likely re- leases of such substances from such facility. The Administrator may prescribe in greater detail the manner and form of the notice and the information included. The Administrator shall notify the affected State agency, or any department designated by the Gover- nor to receive such notice, of the existence of such facility. Any person who knowingly fails to notify the Administrator of the ex- istence of any such facility shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. In addition, any such person who knowingly fails to provide the notice required by this subsection shall not be entitled to any limitation of liability or to any defenses to liability set out in sec- tion 107 of this Act: Provided, however, That notification under this subsection is not required for any facility which would be report- able hereunder solely as a result of any stoppage in transit which is temporary, incidental to the transportation movement, or at the ordinary operating convenience of a common or contract carrier, and such stoppage shall be considered as a continuity of movement and not as the storage of a hazardous substance. Notification re- ceived pursuant to this subsection or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement. (d)(1) The Administrator of the Environmental Protection Agency is authorized to promulgate rules and regulations specifying, with respect to — (A) the location, title, or condition of a facility, and (B) the identity, characteristics, quantity, origin, or condition (including containerization and previous treatment) of any haz- ardous substances contained or deposited in a facility; the records which shall be retained by any person required to pro- vide the notification of a facility set out in subsection (c) of this sec- tion. Such specification shall be in accordance with the provisions of this subsection. (2) Beginning with the date of enactment of this Act, for fifty years thereafter or for fifty years after the date of establishment of a record (whichever is later), or at any such earlier time as a waiver if obtained under paragraph (3) of this subsection, it shall be unlawful for any such person knowingly to destroy, mutilate, erase, dispose of, conceal, or otherwise render unavailable or un- readable or falsify any records identified in paragraph (1) of this subsection. Any person who violates this paragraph shall, upon conviction, be fined [not more than $20,000, or imprisoned for not more than one year, or both] in accordance with the applicable provisions of title 18 of the United States Code or imprisoned for not more than 3 years (or not more than 5 years in the case of a second or subsequent conviction), or both. (3) At any time prior to the date which occurs fifty years after the date of enactment of this Act, any person identified under paragraph (1) of this subsection may apply to the Administrator of the Environmental Protection Agency for a waiver of the provi- sions of the first sentence of paragraph (2) of this subsection. The 190 1 12 Administrator is authorized to grant such waiver if, in his discre- tion, such waiver would not unreasonably interfere with the attain- ment of the purposes and provisions of this Act. The Administrator shall promulgate rules and regulations regarding such a waiver so as to inform parties of the proper application procedure and condi- tions for approval of such a waiver. (4) Notwithstanding the provisions of this subsection, the Admin- istrator of the Environmental Protection Agency may in his discre- tion require any such person to retain any record identified pursu- ant to paragraph (1) of this subsection for such a time period in excess of the period specified in paragraph (2) of this subsection as the Administrator determines to be necessary to protect the public health or welfare. (e) This section shall not apply to the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act or to the handling and storage of such a pesticide product by an agricultural producer. (f) No notification shall be required under subsection (a) or (b) of this section for any release of a hazardous substance- CD which is required to be reported (or specifically exempted from a requirement for reporting) under subtitle C of the Solid Waste Disposal Act or regulations thereunder and which has been reported to the National Response Center, or (2) which is a continuous release, stable in quantity and rate, and is — (A) from a facility for which notification has been given under subsection (c) of this section, or (B) a release of which notification has been given under subsections (a) and (b) of this section for a period sufficient to establish the continuity, quantity, and regularity of such release: Provided, That notification in accordance with subsections (a) and (b) of this paragraph shall be given for releases subject to this paragraph annually, or at such time as there is any statis- tically significant increase in the quantity of any hazardous substance or constituent thereof released, above that previous- ly reported or occurring. RESPONSE AUTHORITIES Sec. 104. (a)(1) Whenever (A) any hazardous substance is released or there is a substantial threat of such a release into the environ- ment, or (B) there is a release or substantial threat of release into the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare, the President is authorized to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide^ for remedial action relating to such hazardous sub- stance, pollutant, or contaminant at any time (including its remov- al from any contaminated natural resource), or take any other re- sponse measure consistent with the national contingency plan which the President deems necessary to protect the public health or welfare or the environment [, unless the President determines that such removal and remedial action will be done properly by the 191 13 owner or operator of the vessel or facility from which the release or threat of release emanates, or by any other responsible party] . When the President determines that such action will be done proper- ly and promptly by the owner or operator of the facility or vessel or by any other responsible party, the President may allow such person to carry out the action, conduct the remedial investigation, or con- duct the feasibility study in accordance with section 122. No remedi- al investigation or feasibility study (RI/FS) shall be authorized except on a determination by the President that the party is quali- fied to conduct the RI/FS and only if the President contracts with or arranges for a qualified person to assist the President in oversee- ing and reviewing the conduct of such RI/FS and if the responsible party agrees to reimburse the Fund for any cost incurred by the President under, or in connection with, the oversight contract or ar- rangement In no event shall a potentially responsible party be sub- ject to a lesser standard of liability, receive preferential treatment, or in any other way, whether direct or indirect, benefit from any such arrangements as a response action contractor, or as a person hired or retained by such a response action contractor, with respect to the release or facility in question. The President shall give pri- mary attention to those releases which the President deems may present a public health threat. [(2) For the purposes of this section, "pollutant or contaminant" shall include, but not be limited to, any element, substance, com- pound, or mixture, including disease-causing agents, which after re- lease into the environment and upon exposure, ingestion, inhala- tion, or assimilation into any organism, either directly from the en- vironment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring. The term does not include pe- troleum, including crude oil and any fraction thereof which is not otherwise specifically listed or designated as hazardous substances under section 101(14) (A) through (F) of this title, nor does it in- clude natural gas, liquefied natural gas, or synthetic gas of pipeline quality (or mixtures of natural gas and such synthetic gas).] (2) Removal Action.— Any removal action undertaken by the President under this subsection (or by any other person referred to in section 122) should, to the extent the President deems practicable, contribute to the efficient performance of any long term remedial action with respect to the release or threatened release concerned. (3) Limitations on Response.— The President shall not provide for a removal or remedial action under this section in response to a release or threat of release — (A) of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring processes or phe- nomena, from a location where it is naturally found; (B) from products which are part of the structure of, and result in exposure within, residential buildings or business or community structures; or (C) into public or private drinking water supplies due to dete- rioration of the system through ordinary use. 192 14 (J^) Exception to Limitations.— Notwithstanding paragraph (3) of this subsection, to the extent authorized by this section, the Presi- dent may respond to any release or threat of release if in the Presi- dent's discretion, it constitutes a public health or environmental emergency and no other person with the authority and capability to respond to the emergency will do so in a timely manner. Qo)(l) Information; Studies and Investigations. — Whenever the President is authorized to act pursuant to subsection (a) of this section, or whenever the President has reason to believe that a re- lease has occurred or is about to occur, or that illness, disease, or complaints thereof may be attributable to exposure to a hazardous substance, pollutant, or contaminant and that a release may have occurred or be occurring, he may undertake such investigations, monitoring, surveys, testing, and other information gathering as he may deem necessary or appropriate to identify the existence and extent of the release or threat thereof, the source and nature of the hazardous substances, pollutants or contaminants involved, and the extent of danger to the public health or welfare or to the environ- ment. In addition, the President may undertake such planning, legal, fiscal, economic, engineering, architectural, and other studies or investigations as he may deem necessary or appropriate to plan and direct response actions, to recover the costs thereof, and to en- force the provisions of this Act. (2) Coordination of Investigations.— The President shall promptly notify the appropriate Federal and State natural resource trustees of potential damages to natural resources resulting from re- leases under investigation pursuant to this section and shall seek to coordinate the assessments, investigations, and planning under this section with such Federal and State trustees. (cXD Unless (A) the President finds that (i) continued response actions are immediately required to prevent, limit, or mitigate an emergency, (ii) there is an immediate risk to public health or wel- fare or the environment, and (iii) such assistance will not otherwise be provided on a timely basis, or (B) the President has determined the appropriate remedial actions pursuant to paragraph (2) of this subsection and the State or States in which the source of the re- lease is located have complied with the requirements of paragraph (3) of this subsection, or (C) continued response action is otherwise appropriate and consistent with the remedial action to be taken ob- ligations from the Fund, other than those authorized by subsection (b) of this section, shall not continue after [$1,000,000] $2,000,000 has been obligated for response actions or [six months] 12 months has elapsed from the date of initial response to a release or threat- ened release of hazardous substances. (2) The President shall consult with the affected State or States before determining any appropriate remedial action to be taken pursuant to the authority granted under subsection (a) of this sec- tion. (3) The President shall not provide any remedial actions pursu- ant to this section unless the State in which the release occurs first enters into a contract or cooperative agreement with the President providing assurances deemed adequate by the President that (A) the State will assure all future maintenance of the removal and re- medial actions provided for the expected life of such actions as de- 193 15 termined by the President; (B) the State will assure the availability of a hazardous waste disposal facility acceptable to the President and in compliance with the requirements of subtitle C of the Solid Waste Disposal Act for any necessary offsite storage, destruction, treatment, or secure disposition of the hazardous substances; and (C) the State will pay or assure pa5mient of (i) 10 per centum of the costs of the remedial action, including all future maintenance, or [(ii) at least 50 per centum or such greater amount as the Presi- dent may determine appropriate, taking into account the degree of responsibility of the State or political subdivision, of any sums ex- p^ended in response to a release at a facility that was owned at the time of any disposal of hazardous substances therein by the State or a political subdivision thereof. The President shall grant the State a credit against the share of the costs for which it is responsi- ble under this paragraph for any documented direct out-of-pocket non-Federal funds expended or obligated by the State or a political subdivision thereof after January 1, 1978, and before the date of enactment of this Act for cost-eligible response actions and claims for damages compensable under section 111 of this title relating to the specific release in question: Provided, however. That in no event shall the amount of the credit granted exceed the total re- sponse costs relating to the release.] (ii) 50 percent (or such greater amount as the President may determine appropriate, taking into ac- count the degree of responsibility of the State or political subdivi- sion for the release) of any sums expended in response to a release at a facility, that was operated by the State or a political subdivision thereof, either directly or through a contractual relationship or oth- erwise, at the time of any disposal of hazardous substances therein. For the purpose of clause (ii) of this subparagraph, the term ''facili- ty'' does not include navigable waters or the beds underlying those waters. In the case of remedial action to be taken on land or water held by an Indian tribe, held by the United States in trust for Indi- ans, held by a member of an Indian tribe (if such land or water is subject to a trust restriction on alienation), or otherwise within the borders of an Indian reservation, the requirements of this paragraph for assurances regarding future maintenance and cost-sharing shall not apply, and the President shall provide the assurance required by this paragraph regarding the availability of a hazardous waste dis- posal facility. [(4) The President shall select appropriate remedial actions de- termined to be necessary to carry out this section which are to the extent practicable in accordance with the national contingency plan and which provide for that cost-effective response which pro- vides a balance between the need for protection of public health and welfare and the environment at the facility under consider- ation, and the availability of amounts from the Fund established under title II of this Act to respond to other sites which present or may present a threat to public health or welfare or the environ- ment, taking into consideration the need for immediate action.] (4) Selection of Remedial Action.— The President shall select remedial actions to carry out this section in accordance with section 121 of this Act (relating to cleanup standards). (5) State Credits.— 194 16 (A) Granting of credit.— The President shall grant a State a credit against the share of the costs, for which it is responsi- ble under paragraph (3) with respect to a facility listed on the National Priorities List under the National Contingency Plan, for amounts expended by a State for remedial action at such fa- cility pursuant to a contract or cooperative agreement with the President. The credit under this paragraph shall be limited to those State expenses which the President determines to be rea- sonable, documented, direct out-of-pocket expenditures of non- Federal funds. (B) Expenses before listing or agreement.— The credit under this paragraph shall include expenses for remedial action at a facility incurred before the listing of the facility on the Na- tional Priorities List or before a contract or cooperative agree- ment is entered into under subsection (d) for the facility if— (i) after such expenses are incurred the facility is listed on such list and a contract or cooperative agreement is en- tered into for the facility, and (ii) the President determines that such expenses would have been credited to the State under subparagraph (A) had the expenditures been made after listing of the facility on such list and after the date on which suck contract or cooperative agreement is entered into. (C) Response actions between 1978 and i980.—The credit under this paragraph shall include funds expended or obligated by the State or a political subdivision thereof after January 1, 1978, and before December 11, 1980, for cost-eligible response ac- tions and claims for damages compensable under section 111. (D) State expenses after December ii, i980, in excess of 10 PERCENT OF COSTS.— The Credit under this paragraph shall include 90 percent of State expenses incurred at a facility owned, but not operated, by such State or by a political subdivi- sion thereof Such credit applies only to expenses incurred pur- suant to a contract or cooperative agreement under subsection (d) and only to expenses incurred after December 11, 1980, but before the date of the enactment of this paragraph. (E) Item-by-item approval.— In the case of expenditures made after the date of the enactment of this paragraph, the President may require prior approval of each item of expendi- ture as a condition of granting a credit under this paragraph. (F) Use of credits.— Credits granted under this paragraph for funds expended with respect to a facility may be used by the State to reduce all or part of the share of costs otherwise re- quired to be paid by the State under paragraph (3) in connec- tion with remedial actions at such facility. If the amount of funds for which credit is allowed under this paragraph exceeds such share of costs for such facility, the State may use the amount of such excess to reduce all or part of the share of such costs at other facilities in that State. A credit shall not entitle the State to any direct payment. (6) Operation and Maintenance. — For the purposes of para- graph (3) of this subsection, in the case of ground or surface water contamination, completed remedial action includes the completion of treatment or other measures, whether taken onsite or offsite, nee- 195 17 essary to restore ground and surface water quality to a level that assures protection of human health and the environment. With re- spect to such measures, the operation of such measures for a period of up to 10 years after the construction or installation and com- mencement of operation shall be considered remedial action. Activi- ties required to maintain the effectiveness of such measures follow- ing such period or the completion of remedial action, whichever is earlier, shall be considered operation or maintenance. (7) Limitation on Source of Funds for O&M.— During any period after the availability of funds received by the Hazardous Substance Superfund established under subchapter A of chapter 98 of the Internal Revenue Code of 1954 from tax revenues or appro- priations from general revenues, the Federal share of the payment of the cost of operation or maintenance pursuant to paragraph (3XC)(i) or paragraph (6) of this subsection (relating to operation and main- tenance) shall be from funds received by the Hazardous Substance Superfund from amounts recovered on behalf of such fund under this Act. (8) RECONTRACTING.—The President is authorized to undertake or continue whatever interim remedial actions the President deter- mines to be appropriate to reduce risks to public health or the envi- ronment where the performance of a complete remedial action re- quires recontracting because of the discovery of sources, types, or quantities of hazardous substances not known at the time of entry into the original contract. The total cost of interim actions under- taken at a facility pursuant to this paragraph shall not exceed $2,000,000. (9) Siting.— Effective 3 years after the enactment of the Super- fund Amendments and Reauthorization Act of 1986, the President shall not provide any remedial actions pursuant to this section unless the State in which the release occurs first enters into a con- tract or cooperative agreement with the President providing assur- ances deemed adequate by the President that the State will assure the availability of hazardous waste treatment or disposal facilities which — (A) have adequate capacity for the destruction, treatment, or secure disposition of all hazardous wastes that are reasonably expected to be generated within the State during the 20-year period following the date of such contract or cooperative agree- ment and to be disposed of, treated, or destroyed, (B) are within the State or outside the State in accordance with an interstate agreement or regional agreement or author- ity, (C) are acceptable to the President, and (D) are in compliance with the requirements of subtitle C of the Solid Waste Disposal Act. [(dXD Where the President determines that a State or political subdivision thereof has the capability to carry out any or all of the actions authorized in this section, the President may, in his discre- tion, enter into a contract or cooperative agreement with such State or political subdivision to take such actions in accordance with criteria and priorities established pursuant to section 105(8) of this title and to be reimbursed for the reasonable response costs 196 18 ..S3 thereof from the Fund. Any contract made hereunder shall be sub- ject to the cost-sharing provisions of subsection (c) of this section.] (d)(1) Cooperative Agreements.— (A) State applications. — A State or political subdivision thereof or Indian tribe may apply to the President to carry out actions authorized in this section. If the President determines that the State or political subdivision or Indian tribe has the capability to carry out any or all of such actions in accordance with the criteria and priorities established pursuant to section 105(a)(8) and to carry out related enforcement actions, the Presi- dent may enter into a contract or cooperative agreement with the State or political subdivision or Indian tribe to carry out such actions. The President shall make a determination regard- ing such an application within 90 days after the President re- ceives the application. (B) Terms and conditions. — A contract or cooperative agree- ment under this paragraph shall be subject to such terms and conditions as the President may prescribe. The contract or coop- erative agreement may cover a specific facility or specific facili- ties. (C) Reimbursements.— Any State which expended funds during the period beginning September SO, 1985, and ending on the date of the enactment of this subparagraph for response ac- tions at any site included on the National Priorities List and subject to a cooperative agreement under this Act shall be reim- bursed for the share of costs of such actions for which the Fed- eral Government is responsible under this Act. (2) If the President enters into a cost-sharing agreement pursu- ant to subsection (c) of this section or a contract or cooperative agreement pursuant to this subsection, and the State or political subdivision thereof fails to comply with any requirements of the contract, the President may, after providing sixty days notice, seek in the appropriate Federal district court to enforce the contract or to recover any funds advanced or any costs incurred because of the breach of the contract by the State or political subdivision. (3) Where a State or a political subdivision thereof is acting in behalf of the President, the President is authorized to provide tech- nical and legal assistance in the administration and enforcement of any contract or subcontract in connection with response actions as- sisted under this title, and to intervene in any civil action involv- ing the enforcement of such contract or subcontract. (4) Where two or more noncontiguous facilities are reasonably re- lated on the basis of geography, or on the basis of the threat, or potential threat to the public health or welfare or the environment, the President may, in his discretion, treat these related facilities as one for purposes of this section. [(e)(1) For purposes of assisting in determining the need for re- sponse to a release under this title or enforcing the provisions of this title, any person who stores, treats, or disposes of, or, where necessary to ascertain facts not available at the facility where such hazardous substances are located, who generates, transports, or otherwise handles or has handled, hazardous substances shall, upon request of any officer, employee, or representative of the President, duly designated by the President, or upon request of any 197 19 duly designated officer, employee, or representative of a State, where appropriate, furnish information relating to such substances and permit such person at all reasonable times to have access to, and to copy all records relating to such substances. For the pur- poses specified in the preceding sentence, such officers, employees, or representatives are authorized — [(A) to enter at reasonable times any establishment or other place where such hazardous substances are or have been gener- ated, stored, treated, or disposed of, or transported from; [(B) to inspect and obtain samples from any person of any such substance and samples of any containers or labeling for such substances. Each such inspection shall be commenced and completed with reasonable promptness. If the officer, employ- ee, or representative obtains any samples, prior to leaving the premises, he shall give to the owner, operator, or person in charge a receipt describing the sample obtained and if request- ed a portion of each such sample equal in volume of weight to the portion retained. If any analysis is made of such samples, a copy of the results of such analysis shall be furnished promptly to the owner, operator, or person in charge.] (e) Information Gathering and Access.— (1) Action authorized. — Any officer, employee, or representa- tive of the President, duly designated by the President, is au- thorized to take action under paragraph (2), (3), or (4) (or any combination thereof) at a vessel, facility, establishment, place, property, or location or, in the case of paragraph (3) or (4X at any vessel, facility, establishment, place, property, or location which is adjacent to the vessel, facility, establishment, place, property, or location referred to in such paragraph (3) or (4). Any duly designated officer, employee, or representative of a State or political subdivision under a contract or cooperative agreement under subsection (d)(1) is also authorized to take such action. The authority of paragraphs (3) and (4) may be ex- ercised only if there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance or pollut- ant or contaminant. The authority of this subsection may be ex- ercised only for the purposes of determining the need for re- sponse, or choosing or taking any response action under this title, or otherwise enforcing the provisions of this title. (2) Access to information— Any officer, employee, or repre- sentative described in paragraph (1) may require any person who has or may have information relevant to any of the follow- ing to furnish, upon reasonable notice, information or docu- ments relating to such matter: (A) The identification, nature, and quantity of materials which have been or are generated, treated, stored, or dis- posed of at a vessel or facility or transported to a vessel or facility. (B) The nature or extent of a release or threatened release of a hazardous substance or pollutant or contaminant at or from a vessel or facility. (C) Information relating to the ability of a person to pay for or to perform a cleanup. 198 20 \ In addition, upon reasonable notice, such person either (i) shall grant any such officer, employee, or representative access at all reasonable times to any vessel, facility, establishment, place, property, or location to inspect and copy all documents or records relating to such matters or (ii) shall copy and furnish to the officer, employee, or representative all such documents or records, at the option and expense of such person. (3) Entry. — Any officer, employee, or representative described in paragraph (1) is authorized to enter at reasonable times any of the following: (A) Any vessel, facility, establishment, or other place or property where any hazardous substance or pollutant or contaminant may be or has been generated, stored, treated, disposed of, or transported from. (B) Any vessel, facility, establishment, or other place or property from which or to which a hazardous substance or pollutant or contaminant has been or may have been re- leased. (C) Any vessel, facility, establishment, or other place or property where such release is or may be threatened. (D) Any vessel, facility, establishment, or other place or property where entry is needed to determine the need for re- sponse or the appropriate response or to effectuate a re- sponse action under this title. (4) Inspection and samples. — (A) Authority. — Any officer, employee or representative described in paragraph (1) is authorized to inspect and obtain samples from any vessel, facility, establishment, or other place or property referred to in paragraph (3) or from any location of any suspected hazardous substance or pol- lutant or contaminant. Any such officer, employee, or repre- sentative is authorized to inspect and obtain samples of any containers or labeling for suspected hazardous substances or pollutants or contaminants. Each such inspection shall be completed with reasonable promptness. (B) Samples. — If the officer, employee, or representative obtains any samples, before leaving the premises he shall give to the owner, operator, tenant, or other person in charge of the place from which the samples were obtained a receipt describing the sample obtained and, if requested, a portion of each such sample. A copy of the results of any analysis made of such samples shall be furnished promptly to the owner, operator, tenant, or other person in charge, if such person can be located. (5) Compliance orders.— (A) Issuance. — If consent is not granted regarding any request made by an officer, employee, or representative under paragraph (2), (3), or i\), the President may issue an order directing compliance with the request. The order may be issued after such notice and opportunity for consultation as is reasonably appropriate under the circumstances. (B) Compliance.— The President may ask the Attorney General to commence a civil action to compel compliance with a request or order referred to in subparagraph (A). 199 21 Where there is a reasonable basis to believe there may be a release or threat of a release of a hazardous substance or pollutant or contaminant, the court shall take the follow- ing actions: (i) In the case of interference with entry or inspection, the court shall enjoin such interference or direct com- pliance with orders to prohibit interference with entry or inspection unless under the circumstances of the case the demand for entry or inspection is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. (ii) In the case of information or document requests or orders, the court shall enjoin interference with such information or document requests or orders or direct compliance with the requests or orders to provide such information or documents unless under the circum- stances of the case the demand for information or doc- uments is arbitrary and capricious, an abuse of discre- tion, or otherwise not in accordance with law. The court may assess a civil penalty not to exceed $25,000 for each day of noncompliance against any person who un- reasonably fails to comply with the provisions of paragraph (2), (3), or (4) or an order issued pursuant to subparagraph (A) of this paragraph. (6) Other authority. — Nothing in this subsection shall pre- clude the President from securing access or obtaining informa- tion in any other lawful manner. [(2)(A)] (7) Confidentiality of Information.— (A) Any records, reports, or information obtained from any person under this section (including records, reports, or information obtained by representatives of the President) shall be available to the public, except that upon a showing satisfactory to the President (or the State, as the case may be) by any person that records, reports, or information, or particular part thereof (other than health or safety effects data), to which the Presi- dent (or the State, as the case may be) or any officer, employee, or representative has access under this section if made public would divulge information entitled to protection under section 1905 of title 18 of the United States Ck)de, such information or particular portion thereof shall be considered confidential in accordance with the purposes of that section, except that such record, report, document or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this Act, or when relevant in any proceeding under this Act. (B) Any person not subject to the provisions of section 1905 of title 18 of the United States Code who knowingly and will- fully divulges or discloses any information entitled to protec- tion under this subsection shall, upon conviction, be subject to a fine of not more than $5,000 or to imprisonment not to exceed one year, or both. (C) In submitting data under this Act, a person required to provide such data may (i) designate the data which such person believes is entitled to protection under this subsection and (ii) 200 22 a —a -'< >--•<■ submit such designated data separately from other data sub- mitted under this Act. A designation under this paragraph shall be made in writing and in such manner as the President may prescribe by regulation. (D) Notwithstanding any limitation contained in this section or any other provision of law, all information reported to or otherwise obtained by the President (or any representative of the President) under this Act shall be made available, upon written request of any duly authorized committee of the Con- gress, to such committee. (E) No person required to provide information under this Act may claim that the information is entitled to protection under this paragraph unless such person shows each of the following: (i) Such person has not disclosed the information to any other person, other than a member of a local emergency planning committee established under title III of the Amendments and Reauthorization Act of 1986, an officer or employee of the United States or a State or local govern- ment, an employee of such person, or a person who is bound by a confidentiality agreement, and such person has taken reasonable measures to protect the confidentiality of such information and intends to continue to take such measures. (ii) The information is not required to be disclosed, or otherwise made available, to the public under any other Federal or State law. (Hi) Disclosure of the information is likely to cause sub- stantial harm to the competitive position of such person. (iv) The specific chemical identity, if sought to be protect- ed, is not readily discoverable through reverse engineering. (F) The following information with respect to any hazardous substance at the facility or vessel shall not be entitled to protec- tion under this paragraph: (i) The trade name, common name, or generic class or cat- egory of the hazardous substance. (ii) The physical properties of the substance, including its boiling point, melting point, flash point, specific gravity, vapor density, solubility in water, and vapor pressure at 20 degrees Celsius. (Hi) The hazards to health and the environment posed by the substance, including physical hazards (such as explo- sion) and potential acute and chronic health hazards. (iv) The potential routes of human exposure to the sub- stance at the facility, establishment, place, or property being investigated, entered, or inspected under this subsec- tion. (v) The location of disposal of any waste stream. (vi) Any monitoring data or analysis of monitoring data pertaining to disposal activities. (vii) Any hydrogeologic or geologic data. (viii) Any groundwater monitoring data. (f) In awarding contracts to any person engaged in response ac- tions, the President or the State, in any case where it is awarding contracts pursuant to a contract entered into under subsection (d) of this section, shall require compliance with Federal health and 201 23 safety standards established under section 301(f) of this Act by con- tractors and subcontractors as a condition of such contracts. (g)(1) All laborers and mechanics employed by contractors or sub- contractors in the performance of construction, repair, or alter- ation work funded in whole or in part under this section shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with the Davis-Bacon Act. The President shall not approve any such funding without first obtaining adequate as- surance that required labor standards will be maintained upon the construction work. (2) The Secretary of Labor shall have, with respect to the labor standards specified in paragraph (1), the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176; 64 Stat. 1267) and section 276c of title 40 of the United States Code. (h) Notwithstanding any other provision of law, subject to the provisions of section HI of this Act, the President may authorize the use of such emergency procurement powers as he deems neces- sary to effect the purpose of this Act. Upon determination that such procedures are necessary, the President shall promulgate reg- ulations prescribing the circumstances under which such authority shall be used and the procedures governing the use of such author- ity. ayi) There is hereby established within the Public Health Serv- ice an agency, to be known as the Agency for Toxic Substances and Disease Registry, which shall report directly to the Surgeon Gener- al of the United States. The Administrator of said Agency shall, with the cooperation of the Administrator of the Environmental Protection Agency, the Commissioner of the Food and Drug Admin- istration, the Directors of the National Institute of Medicine, Na- tional Institute of Environmental Health Sciences, National Insti- tute of Occupational Safety and Health, Centers for Disease Con- trol, the Administrator of the Occupational Safety and Health Ad- ministration, [andj the Administrator of the Social Security Ad- ministration, the Secretary of Transportation and appropriate State and local health officials, effectuate and implement the health re- lated authorities of this Act. In addition, said Administrator shall— [(1)] (A) in cooperation with the States, establish and main- tain a national registry of serious diseases and illnesses and a national registry of persons exposed to toxic substances; [(2)] (BJ establish and maintain inventory of literature, re- search, and studies on the health effects of toxic substances; [(3)3 (C) in cooperation with the States, and other agencies of the Federal Government, establish and maintain a complete listing of areas closed to the public or otherwise restricted in use because of toxic substance contamination; C(4)] (D) in cases of public health emergencies caused or be- lieved to be caused by exposure to toxic substances, provide medical care and testing to exposed individuals, including but not limited to tissue sampling, chromosomal testing, where ap- propriate, epidemiological studies, or any other assistance ap- propriate under the circumstances; and 202 24 [(5)] (E) either independently or as part of other health status survey, conduct periodic survey and screening programs to determine relationships between exposure to toxic sub- stances and illness. In cases of public health emergencies, ex- posed persons shall be eligible for admission to hospitals and other facilities and services operated or provided by the Public Health Service. (2)(A) Within 6 months after the enactment of the Superfund Amendments and Reauthorization Act of 1986, the Administrator of the Agency for Toxic Substances and Disease Registry C'ATSDR'') and the Administrator of the Environmental Protection Agency C'EPA 'V shall prepare a list, in order of priority, of at least 100 haz- ardous substances which are most commonly found at facilities on the National Priorities List and which, in their sole discretion, they determine are posing the most significant potential threat to human health due to their known or suspected toxicity to humans and the potential for human exposure to such substances at facilities on the National Priorities List or at facilities to which a response to a re- lease or a threatened release under this section is under consider- ation. (B) Within 2J^ months after the enactment of the Superfund Amendments and Reauthorization Act of 1986, the Administrator of ATSDR and the Administrator of EPA shall revise the list prepared under subparagraph (A). Such revision shall include, in order of priority, the addition of 100 or more such hazardous substances. In each of the 3 consecutive 12-month periods that follow, the Admin- istrator of ATSDR and the Administrator of EPA shall revise, in the same manner as provided in the 2 preceding sentences, such list to include not fewer than 25 additional hazardous substances per revision. The Administrator of ATSDR and the Administrator of EPA shall not less often than once every year thereafter revise such list to include additional hazardous substances in accordance with the criteria in subparagraph (A). (3) Based on all available information, including information maintained under paragraph (IXB) and data developed and collect- ed on the health effects of hazardous substances under this para- graph, the Administrator of ATSDR shall prepare toxicological pro- files of each of the substances listed pursuant to paragraph (2), The toxicological profiles shall be prepared in accordance with guide- lines developed by the Administrator of ATSDR and the Adminis- trator of EPA. Such profiles shall include, but not be limited to each of the following: (A) An examination, summary, and interpretation of avail- able toxicological information and epidemiologic evaluations on a hazardous substance in order to ascertain the levels of signifi- cant human exposure for the substance and the associated acute, subacute, and chronic health effects. (B) A determination of whether adequate information on the health effects of each substance is available or in the process of development to determine levels of exposure which present a sig- nificant risk to human health of acute, subacute, and chronic health effects. (C) Where appropriate, an identification of toxicological test- ing needed to identify the types or levels of exposure that may 203 25 present significant risk of adverse health effects in humans. Any toxicological profile or revision thereof shall reflect the Admin- istrator of ATSDR's assessment of all relevant toxicological testing which has been peer reviewed. The profiles required to be prepared under this paragraph for those hazardous substances listed under subparagraph (A) of paragraph (2) shall be completed, at a rate of no fewer than 25 per year, within 4 years after the enactment of the Superfund Amendments and Reauthorization Act of 1986. A profile required on a substance listed pursuant to subparagraph (B) of paragraph (2) shall be completed within 3 years after addition to the list. The profiles prepared under this paragraph shall be of those substances highest on the list of priorities under paragraph (2) for which profiles have not previously been prepared. Profiles re- quired under this paragraph shall be revised and republished as necessary, but no less often than once every S years. Such profiles shall be provided to the States and made available to other interest- ed parties. (4) The Administrator of the ATSDR shall provide consultations upon request on health issues relating to exposure to hazardous or toxic substances, on the basis of available information, to the Ad- ministrator of EPA, State officials, and local officials. Such consul- tations to individuals may be provided by States under cooperative agreements established under this Act. (5XA) For each hazardous substance listed pursuant to paragraph (2), the Administrator of ATSDR (in consultation with the Adminis- trator of EPA and other agencies and programs of the Public Health Service) shall assess whether adequate information on the health effects of such substance is available. For any such substance for which adequate information is not available (or under develop- ment), the Administrator of ATSDR, in cooperation with the Direc- tor of the National Toxicology Program, shall assure the initiation of a program of research designed to determine the health effects (and techniques for development of methods to determine such health effects) of such substance. Where feasible, such program shall seek to develop methods to determine the health effects of such substance in combination with other substances with which it is commonly found. Before assuring the initiation of such program, the Administrator of ATSDR shall consider recommendations of the Interagency Testing Committee established under section 4(e) of the Toxic Substances Control Act on the types of research that should be done. Such program shall include, to the extent necessary to supple- ment existing information, but shall not be limited to — (i) laboratory and other studies to determine short, intermedi- ate, and long-term health effects; (ii) laboratory and other studies to determine organ-specific, site-specific, and system-specific acute and chronic toxicity; (Hi) laboratory and other studies to determine the manner in which such substances are metabolized or to otherwise develop an understanding of the biokinetics of such substances; and (iv) where there is a possibility of obtaining human data, the collection of such information. (B) In assessing the need to perform laboratory and other studies, as required by subparagraph (A), the Administrator of ATSDR shall consider — 204 26 (i) the availability and quality of existing test data concern- ing the substance on the suspected health effect in question; (ii) the extent to which testing already in progress will, in a timely fashion, provide data that will be adequate to support the preparation of toxicological profiles as required by para- graph (3); and (Hi) such other scientific and technical factors as the Admin- istrator of ATSDR may determine are necessary for the effective implementation of this subsection. (C) In the development and implementation of any research pro- gram under this paragraph, the Administrator of ATSDR and the Administrator of EPA shall coordinate such research program im- plemented under this paragraph with the National Toxicology Pro- gram and with programs of toxicological testing established under the Toxic Substances Control Act and the Federal Insecticide, Fun- gicide and Rodenticide Act. The purpose of such coordination shall be to avoid duplication of effort and to assure that the hazardous substances listed pursuant to this subsection are tested thoroughly at the earliest practicable date. Where appropriate, consistent with such purpose, a research program under this paragraph may be car- ried out using such programs of toxicological testing. (D) It is the sense of the Congress that the costs of research pro- grams under this paragraph be borne by the manufacturers and processors of the hazardous substance in question, as required in programs of toxicological testing under ihe Toxic Substances Con- trol Act. Within 1 year after the enactment of the Superfund Amendments and Reauthorization Act of 1986, the Administrator of EPA shall promulgate regulations which provide, where appropri- ate, for payment of such costs by manufacturers and processors under the Toxic Substances Control Act, and registrants under the Federal Insecticide, Fungicide, and Rodenticide Act, and recovery of such costs from responsible parties under this Act. (6XA) The Administrator of ATSDR shall perform a health as- sessment for each facility on the National Priorities List established under section 105. Such health assessment shall be completed not later than December 10, 1988, for each facility proposed for inclu- sion on such list prior to the date of the enactment of the Superfund Amendments and Reauthorization Act of 1986 or not later than one year after the date of proposal for inclusion on such list for each facility proposed for inclusion on such list after such date of enact- ment. (B) The Administrator of ATSDR may perform health assess- ments for releases or facilities where individual persons or licensed physicians provide information that individuals have been exposed to a hazardous substance, for which the probable source of such ex- posure is a release. In addition to other methods (formal or infor- mal) of providing such information, such individual persons or li- censed physicians may submit a petition to the Administrator of ATSDR providing such information and requesting a health assess- ment. If such a petition is submitted and the Administrator of ATSDR does not initiate a health assessment, the Administrator of A TSDR shall provide a written explanation of why a health assess- ment is not appropriate. 205 27 (C) In determining the priority in which to conduct health assess- ments under this subsection, the Administrator of ATSDR, in con- sultation with the Administrator of EPA, shall give priority to those facilities at which there is documented evidence of the release of hazardous substances, at which the potential risk to human health appears highest, and for which in the judgment of the Ad- ministrator of ATSDR existing health assessment data are inad- equate to assess the potential risk to human health as provided in subparagraph (F). In determining the priorities for conducting health assessments under this subsection, the Administrator of ATSDR shall consider the National Priorities List schedules ana the needs of the Environmental Protection Agency and other Feder- al agencies pursuant to schedules for remedial investigation and feasibility studies. (D) Where a health assessment is done at a site on the National Priorities List, the Administrator of ATSDR shall complete such as- sessment promptly and, to the maximum extent practicable, before the completion of the remedial investigation and feasibility study at the facility concerned. (E) Any State or political subdivision carrying out a health assess- ment for a facility shall report the results of the assessment to the Administrator of ATSDR and the Administrator of EPA and shall include recommendations with respect to further activities which need to be carried out under this section. The Administrator of ATSDR shall state such recommendation in any report on the re- sults of any assessment carried out directly by the Administrator of ATSDR for such facility and shall issue periodic reports which in- clude the results of all the assessments carried out under this sub- section. (F) For the purposes of this subsection and section lll(cX4X the term ''health assessments" shall include preliminary assessments of the potential risk to human health posed by individual sites and fa- cilities, based on such factors as the nature and extent of contami- nation, the existence of potential pathways of human exposure (in- cluding ground or surface water contamination, air emissions, and food chain contamination), the size and potential susceptibility of the community within the likely pathways of exposure, the compari- son of expected human exposure levels to the short-term and long- term health effects associated with identified hazardous substances and any available recommended exposure or tolerance limits for such hazardous substances, and the comparison of existing morbidi- ty and mortality data on diseases that may be associated with the observed levels of exposure. The Administrator of ATSDR shall use appropriate data, risk assessments, risk evaluations and studies available from the Administrator of EPA. (G) The purpose of health assessments under this subsection shall be to assist in determining whether actions under paragraph (11) of this subsection should be taken to reduce human exposure to haz- ardous substances from a facility and whether additional informa- tion on human exposure and associated health risks is needed and should be acquired by conducting epidemiological studies under paragraph (7), establishing a registry under paragraph (8), establish- ing a health surveillance program under paragraph (9), or through other means. In using the results of health assessments for deter- 206 28 mining additional actions to be taken under this section, the Ad- ministrator of ATSDR may consider additional information on the risks to the potentially affected population from all sources of such hazardous substances including known point or nonpoint sources other than those from the facility in question. (H) At the completion of each health assessment, the Administra- tor of ATSDR shall provide the Administrator of EPA and each af- fected State with the results of such assessment, together with any recommendations for further actions under this subsection or other- wise under this Act. In addition, if the health assessment indicates that the release or threatened release concerned may pose a serious threat to human health or the environment, the Administrator of ATSDR shall so notify the Administrator of EPA who shall promptly evaluate such release or threatened release in accordance with the hazard ranking system referred to in section 105(aX8XA) to determine whether the site shall be placed on the National Prior- ities List or, if the site is already on the list, the Administrator of ATSDR may recommend to the Administrator of EPA that the site be accorded a higher priority. (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 deter- mine the desirability of conducting full scale epidemiological or other health studies of the entire exposed population. (B) Whenever in the judgment of the Administrator of ATSDR it is appropriate on the basis of the results of such pilot study or other study or health assessment, the Administrator of ATSDR shall con- duct such full scale epidemiological or other health studies as may be necessary to determine the health effects on the population ex- posed to hazardous substances from a release or threatened release. If a significant excess of disease in a population is identified, the letter of transmittal of such study shall include an assessment of other risk factors, other than a release, that may, in the judgment of the peer review group, be associated with such disease, if such risk factors were not taken into account in the design or conduct of the study. (8) In any case in which the results of a health assessment indi- cate a potential significant risk to human health, the Administrator of ATSDR shall consider whether the establishment of a registry of exposed persons would contribute to accomplishing the purposes of this subsection, taking into account circumstances bearing on the usefulness of such a registry, including the seriousness or unique character of identified diseases or the likelihood of population mi- gration from the affected area. (9) Where the Administrator of ATSDR has determined that there is a significant increased risk of adverse health effects in humans from exposure to hazardous substances based on the results of a health assessment conducted under paragraph (6), an epidemiologic study conducted under paragraph (7), or an exposure registry that has been established under paragraph (8), and the Administrator of ATSDR has determined that such exposure is the result of a release from a facility, the Administrator of ATSDR shall initiate a health 207 29 surveillance program for such population. This program shall in- clude but not be limited to — (A) periodic medical testing where appropriate of population subgroups to screen for diseases for which the population or subgroup is at significant increased risk; and (B) a mechanism to refer for treatment those individuals within such population who are screened positive for such dis- eases. (10) Two years after the date of the enactment of the Superfund Amendments and Reauthorization Act of 1986, and every 2 years thereafter, the Administrator of ATSDR shall prepare and submit to the Administrator of EPA and to the Congress a report on the results of the activities of ATSDR regarding— (A) health assessments and pilot health effects studies con- ducted; (B) epidemiologic studies conducted; (C) hazardous substances which have been listed under para- graph (2), toxicological profiles which have been developed, and toxicologic testing which has been conducted or which is being conducted under this subsection; (D) registries established under paragraph (8); and (E) an overall assessment, based on the results of activities conducted by the Administrator of ATSDR, of the linkage be- tween human exposure to individual or combinations of haz- ardous substances due to releases from facilities covered by this Act or the Solid Waste Disposal Act and any increased inci- dence or prevalence of adverse health effects in humans. (11) If a health assessment or other study carried out under this subsection contains a finding that the exposure concerned presents a significant risk to human health, the President shall take such steps as may be necessary to reduce such exposure and eliminate or substantially mitigate the significant risk to human hedlth. Such steps may include the use of any authority under this Act, includ- ing, but not limited to — (A) provision of alternative water supplies, and (B) permanent or temporary relocation of individucils. In any case in which information is insufficient, in the judgment of the Administrator of ATSDR or the President to determine a signif- icant human exposure level with respect to a hazardous substance, the President may take such steps as may be necessary to reduce the exposure of any person to such hazardous substance to such level as the President deems necessary to protect human health. (12) In any case which is the subject of a petition, a health CLSsess- ment or study, or a research program under this subsection, nothing in this subsection shall be construed to delay or otherwise affect or impair the authority of the President, the Administrator of ATSDR, or the Administrator of EPA to exercise any authority vested in the President, the Administrator of ATSDR or the Administrator of EPA under any other provision of law (including, but not limited to, the imminent hazard authority of section 7003 of the Solid Waste Disposal Act) or the response and abatement authorities of this Act. (13) All studies and results of research conducted under this sub- section (other than health assessments) shall be reported or adopted 75-032 0-90-8 208 30 only after appropriate peer review. Such peer review shall be com- pleted, to the maximum extent practicable, within a period of 60 days. In the case of research conducted under the National Toxicol- ogy Program, such peer review may be conducted by the Board of Scientific Counselors. In the case of other research, such peer review shall be conducted by panels consisting of no less than three nor more than seven members, who shall be disinterested scientific ex- perts selected for such purpose by the Administrator of ATSDR or the Administrator of EPA, as appropriate, on the basis of their rep- utation for scientific objectivity and the lack of institutional ties with any person involved in the conduct of the study or research under review. Support services for such panels shall be provided by the Agency for Toxic Substances and Disease Registry, or by the En- vironmental Protection Agency, as appropriate. (14) In the implementation of this subsection and other health-re- lated authorities of this Act, the Administrator of ATSDR shall as- semble, develop as necessary, and distribute to the States, and upon request to medical colleges, physicians, and other health profession- als, appropriate educational materials (including short courses) on the medical surveillance, screening, and methods of diagnosis and treatment of injury or disease related to exposure to hazardous sub- stances (giving priority to those listed in paragraph (2)), through such means as the Administrator of ATSDR deems appropriate. (15) The activities of the Administrator of ATSDR described in this subsection and section lll(cX4) shall be carried out by the Ad- ministrator of ATSDR, either directly or through cooperative agree- ments with States (or political subdivisions thereof) which the Ad- ministrator of ATSDR determines are capable of carrying out such activities. Such activities shall include provision of consultations on health information, the conduct of health assessments, including those required under section 3019(b) of the Solid Waste Disposal Act, health studies, registries, and health surveillance. (16) The President shall provide adequate personnel for ATSDR, which shall not be fewer than 100 employees. For purposes of deter mining the number of employees under this subsection, an employee employed by ATSDR on a part-time career employment basis shal, be counted as a fraction which is determined by dividing 40 houn into the average number of hours of such employee's regularly scheduled workweek. (17) In accordance with section 120 (relating to Federal facilities), the Administrator of ATSDR shall have the same authorities under this section with respect to facilities owned or operated by a depart- ment, agency, or instrumentality of the United States as the Admin- istrator of ATSDR has with respect to any nongovernmental entity. (18) If the Administrator of ATSDR determines that it is appro- priate for purposes of this section to treat a pollutant or contami- nant as a hazardous substance, such pollutant or contaminant shall be treated as a hazardous substance for such purpose. (j) Acquisition of Property. — (1) Authority. — The President is authorized to acquire, by purchase, lease, condemnation, donation, or otherwise, any real property or any interest in real property that the President in his discretion determines is needed to conduct a remedial action 209 31 under this Act. There shall be no cause of action to compel the President to acquire any interest in real property under this Act. (2) State assurance. — The President may use the authority of paragraph (1) for a remedial action only if before an interest in real estate is acquired under this subsection, the State in which the interest to be acquired is located assures the Presi- dent, through a contract or cooperative agreement or otherwise, that the State will accept transfer of the interest following com- pletion of the remedial action. (3) Exemption. — No Federal, State, or local government agency shall be liable under this Act solely as a result of ac- quiring an interest in real estate under this subsection. 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 revi- sion shall include a section of the plan to be known as the national hazardous substance response plan which shall establish proce- dures and standards for responding to releases of hazardous sub- stances, pollutants, and contaminants, which shall include at a minimum: (1) methods for discovering and investigating facilities at which hazardous substances have been disposed of or otherwise come to be located; (2) methods for evaluating, including analyses of relative cost, and remedying any releases or threats of releases from fa- cilities which pose substantial danger to the public health or the environment; (3) methods and criteria for determining the appropriate extent of removal, remedy, and other measures authorized by this Act; (4) appropriate roles and responsibilities for the Federal, State, and local governments and for interstate and nongovern- mental entities in effectuating the plan; (5) provision for identification, procurement, maintenance, and storage of response equipment and supplies; (6) a method for and assignment of responsibility for report- ing the existence of such facilities which may be located on fed- erally owned or controlled properties and any releases of haz- ardous substances from such facilities; (7) means of assuring that remedial action measures are cost- effective over the period of potential exposure to the hazardous substances or contaminated materials; (8)(A) criteria for determining priorities among releases or threatened releases throughout the United States for the pur- pose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action. Criteria and priorities 210 32 under this paragraph shall be based upon relative risk or danger to public health or welfare or the environment, in the judgment of the President, taking into account to the extent possible the population at risk, the hazard potential of the haz- ardous substances at such facilities, the potential for contami- nation of drinking water supplies, the potential for direct human contact, the potential for destruction of sensitive eco- systems, the damage to natural resources which may affect the human food chain and which is associated with any release or threatened release, the contamination or potential contamina- tion of the ambient air which is associated with the release or threatened release, State preparedness to assume State costs and responsibilities, and other appropriate factors; (B) based upon the criteria set forth in subparagraph (A) of this paragraph, the President shall list as part of the plan na- tional priorities among the known releases or threatened re- leases throughout the United States and shall revise the list no less often than annually. Within one year after the date of en- actment of this Act, and annually thereafter, each State shall establish and submit for consideration by the President prior- ities for remedial action among known releases and potential releases in that State based upon the criteria set forth in sub- paragraph (A) of this paragraph. In assembling or revising the national list, the President shall consider any priorities estab- lished by the States. To the extent practicable, [at least four hundred ofj the highest priority facilities shall be designated individually and shall be referred to as the *'top priority among known response targets", and, to the extent practicable, shall include among the one hundred highest priority [facili- ties at least] facilities one such facility from each State which shall be the facility designated by the State as presenting the greatest danger to public health or welfare or the environment among the known facilities in such State. A State shall be al- lowed to designate its highest priority facility only once. Other priority facilities or incidents may be listed singly or grouped for response priority purposes; [and] (9) specified roles for private organizations and entities in preparation for response and in responding to releases of haz- ardous substances, including identification of appropriate qualifications and capacity therefor [.J and including consider- ation of minority firms in accordance with subsection (f); and (10) standards and testing procedures by which alternative or innovative treatment technologies can be determined to be ap- propriate for utilization in response actions authorized by this Act. The plan shall specify procedures, techniques, materials, equip- ment, and methods to be employed in identifying, removing, or remedying releases of hazardous substances comparable to those required under section 311(c)(2) (F) and (G) and (j)(l) of the Federal Water Pollution Control Act. Following publication of the revised national contingency plan, the response to and actions to minimize damage from hazardous substances releases shall, to the greatest extent possible, be in accordance with the provisions of the plan. 211 33 The President may, from time to time, revise and republish the na- tional contingency plan. , /> , (h) Revision of Plan.— Not later than 18 months after the enact- ment of the Superfund Amendments and Reauthorization Act of 1986y the President shall revise the National Contingency Plan to re- flect the requirements of such amendments. The portion of such Plan known as ''the National Hazardous Substance Response Plan shall be revised to provide procedures and standards for remedial actions undertaken pursuant to this Act which are consistent with amendments made by the Superfund Amendments and Reauthoriza- tion Act of 1986 relating to the selection of remedial action. (c) Hazard Ranking System.— (1) Revision.— Not later than 18 months after the enactment of the Superfund Amendments and Reauthorization Act of 1986 and after publication of notice and opportunity for submission of comments in accordance with section 553 of title 5, United States Code, the President shall by rule promulgate amend- ments to the hazard ranking system in effect on September 1, 1984. Such amendments shall assure, to the maximum extent feasible, that the hazard ranking system accurately assesses the relative degree of risk to human health and the environment posed by sites and facilities subject to review. The President shall establish an effective date for the amended hazard rank- ing system which is not later than 24 months after enactment of the Superfund Amendments and Reauthorization Act of 1986. Such amended hazard ranking system shall be applied to any site or facility to be newly listed on the National Priorities List after the effective date established by the President. Until such effective date of the regulations, the hazard ranking system in effect on September 1, 1984, shall continue in full force and effect. (2) Health assessment of water contamination risks.— In carrying out this subsection, the President shall ensure that the human health risks associated with the contamination or po- tential contamination (either directly or as a result of the runoff of any hazardous substance or pollutant or contaminant from sites or facilities) of surface water are appropriately as- sessed where such surface water is, or can be, used for recrea- tion or potable water consumption. In making the assessment required pursuant to the preceding sentence, the President shall take into account the potential migration of any hazardous sub- stance or pollutant or contaminant through such surface water to downstream sources of drinking water. (3) Reevaluation not required.— The President shall not be required to reevaluate, after the date of the enactment of the Superfund Amendments and Reauthorization Act of 1986, the hazard ranking of any facility which was evaluated in accord- ance with the criteria under this section before the effective date of the amendments to the hazard ranking system under this subsection and which was assigned a national priority under the National Contingency Plan. (4) New information.— Nothing in paragraph (3) shall pre- clude the President from taking new information into account in undertaking response actions under this Act. 212 34 (d) Petition for Assessment of Release.— Any person who is, or may be, affected by a release or threatened release of a hazardous substance or pollutant or contaminant, may petition the President to conduct a preliminary assessment of the hazards to public health and the environment which are associated with such release or threatened release. If the President has not previously conducted a preliminary assessment of such release, the President shall, within 12 months after the receipt of any such petition, complete such as- sessment or provide an explanation of why the assessment is not ap- propriate. If the preliminary assessment indicates that the release or threatened release concerned may pose a threat to human health or the environment, the President shall promptly evaluate such release or threatened release in accordance with the hazard ranking system referred to in paragraph (8)(A) of subsection (a) to determine the na- tional priority of such release or threatened release. (e) Releases From Earlier Sites. — Whenever there has been, after January 1, 1985, a significant release of hazardous substances or pollutants or contaminants from a site which is listed by the President as a ''Site Cleaned Up To Date" on the National Prior- ities List (revised edition, December 1984) the site shall be restored to the National Priorities List, without application of the hazard ranking system. (f) Minority Contractors. — In awarding contracts under this Act, the President shall consider the availability of qualified minor- ity firms. The President shall describe, as part of any annual report submitted to the Congress under this Act, the participation of mi- nority firms in contracts carried out under this Act. Such report shall contain a brief description of the contracts which have been awarded to minority firms under this Act and of the efforts made by the President to encourage the participation of such firms in pro- grams carried out under this Act. (g) Special Study Wastes. — (1) Application. — This subsection applies to facilities — (A) which as of the date of enactment of the Super fund Amendments and Reauthorization Act of 1986 were not in- cluded on, or proposed for inclusion on, the National Prior- ities List; and (B) at which special study wastes described in paragraph (2), (3)(A)(ii) or (SXAXiii) of section 3001(b) of the Solid Waste Disposal Act are present in significant quantities, in- cluding any such facility from which there has been a re- lease of a special study waste. (2) Considerations in adding facilities to npl.— Pending revision of the hazard ranking system under subsection (c), the President shall consider each of the following factors in adding facilities covered by this section to the National Priorities List: (A) The extent to which hazard ranking system score for the facility is affected by the presence of any special study waste at, or any release from, such facility. (B) Available information as to the quantity, toxicity, and concentration of hazardous substances that are con- stituents of any special study waste at, or released from such facility, the extent of or potential for release of such hazardous constituents, the exposure or potential exposure 213 35 to human population and the environment, and the degree of hazard to human health or the environment posed by the release of such hazardous constituents at such facility. This subparagraph refers only to available information on actual concentrations of hazardous substances and not on the total quantity of special study waste at such facility. (3) Savings provisions.— Nothing in this subsection shall be construed to limit the authority of the President to remove any facility which as of the date of enactment of the Superfund Amendments and Reauthorization Act of 1986 is included on the National Priorities List from such List, or not to list any facility which as of such date is proposed for inclusion on such list. XT , . (4) Information gathering and analysis.— Nothing m this Act shall be construed to preclude the expenditure of monies from the Fund for gathering and analysis of information which will enable the President to consider the specific factors re- quired by paragraph (2). ABATEMENT ACTION Sec. 106. (a) In addition to any other action taken by a State or local government, when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public mterest and the equities of the case may require. The President may also, after notice to the affected State, take other action under this sec- tion including, but not limited to, issuing such orders as may be necessary to protect public health and welfare and the environ- ment. , ... . (bYi; Any person [who willfully] who, without sufficient cause, willfully violates, or fails or refuses to comply with, any order of the President under subsection (a) may, in an action brought m the appropriate United States district court to enforce such order, be fined not more than [$5,000] $25,000 for each day in which such violation occurs or such failure to comply continues. (2XA) Any person who receives and complies with the terms of any order issued under subsection (a) may, within 60 days after comple- tion of the required action, petition the President for reimbursement from the Fund for the reasonable costs of such action, plus interest Any interest payable under this paragraph shall accrue on the amounts expended from the date of expenditure at the same rate as specified for interest on investments of the Hazardous Substance Su- perfund establi$hed under subchapter A of chapter 98 of the Inter- nal Revenue Code of 1954. ^ , (B) If the President refuses to grant all or part of a petition made under this paragraph, the petitioner may within 30 days of receipt of such refusal file an action against the President m the appropn- 214 ate United States district court seeking reimbursement from the Fund. (C) Except as provided in subparagraph (D), to obtain reimburse- ment, the petitioner shall establish by a preponderance of the evi- dence that it is not liable for response costs under section 107(a) and that costs for which it seeks reimbursement are reasonable in light of the action required by the relevant order. (D) A petitioner who is liable for response costs under section 107(a) may also recover its reasonable costs of response to the extent that it can demonstrate, on the administrative record, that the President's decision in selecting the response action ordered was ar- bitrary and capricious or was otherwise not in accordance with law. Reimbursement awarded under this subparagraph shall include all reasonable response costs incurred by the petitioner pursuant to the portions of the order found to be arbitrary and capricious or other- wise not in accordance with law. (E) Reimbursement awarded by a court under subparagraph (C) or (D) may include appropriate costs, fees, and other expenses in ac- cordance with subsections (a) and (d) of section 2412 of title 28 of the United States Code. (c) Within one hundred and eighty days after enactment of this Act, the Administrator of the Environmental Protection Agency shall, after consultation with the Attorney General, establish and publish guidelines for using the imminent hazard, enforcement, and emergency response authorities of this section and other exist- ing statutes administered by the Administrator of the Environmen- tal Protection Agency to effectuate the responsibilities and powers created by this Act. Such guidelines shall to the extent practicable be consistent with the national hazardous substance response plan, and shall include, at a minimum, the assignment of responsibility for coordinating response actions with the issuance of administra- tive orders, enforcement of standards and permits, the gathering of information, and other imminent hazard and emergency powers authorized by (1) sections 311(c)(2), 308, 309, and 504(a) of the Feder- al Water Pollution Control Act, (2) sections 3007, 3008, 3013, and 7003 of the Solid Waste Disposal Act, (3) sections 1445 and 1431 of the Safe Drinking Water Act, (4) sections 113, 114, and 303 of the Clean Air Act, and (5) section 7 of the Toxic Substances Control Act. UABIUTY 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 of)erator of a vessel [(otherwise subject to the jurisdiction of the United States)] or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazard- ous substances were disposed of, (3) any person who by contract, agreement, or otherwise ar- ranged for disposal or treatment, or arranged with a trans- porter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other 215 37 party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such haz- ardous substances, and (4) any person who accepts or accepted any hazardous sub- stances for transport to disposal or treatment facilities, inciner- ation vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incur- rence of response costs, of a hazardous substance, shall be liable for — (A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; [and] (C) damages for injury to, destruction of, or loss of natu- ral resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a re- leasee.]; and (D) the costs of any health assessment or health effects study carried out under section 104(iX The amounts recoverable in an action under this section shall in- clude interest on the amounts recoverable under subparagraphs (A) through (D). Such interest shall accrue from the later of (i) the date payment of a specified amount is demanded in writing, or (ii) the date of the expenditure concerned. The rate of interest on the out- standing unpaid balance of the amounts recoverable under this sec- tion shall be the same rate as is specified for interest on investments of the Hazardous Substance Superfund established under subchap- ter A of chapter 98 of the Internal Revenue Code of 1954. For pur- poses of applying such amendments to interest under this subsec- tion, the term ''comparable maturity'' shall be determined with ref- erence to the date on which interest accruing under this subsection commences. (b) There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by- (1) an act of God; (2) an act of war; (3) an act or omission of a third party other than an employ- ee or agent of the defendant, or than one whose act or omis- sion occurs in connection with a contractual relationship, exist- ing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteris- tics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foresee- able acts or omissions of any such third party and the conse- 216 38 quences that could foreseeably result from such acts or omis- sions; or (4) any combination of the foregoing paragraphs. (c)(1) Except as provided in paragraph (2) of this subsection, the liability under this section of an owner or operator or other respon- sible person for each release of a hazardous substance or incident involving release of a hazardous substance shall not exceed — (A) for any vessel, other than an incineration vessel, which carries any hazardous substance as cargo or residue, $300 per gross ton, or $5,000,000, whichever is greater; (B) for any other vessel, other than an incineration vessel, $300 per gross ton, or $500,000, whichever is greater; (C) for any motor vehicle, aircraft, pipeline (as defined in the Hazardous Liquid Pipeline Safety Act of 1979), or rolling stock, $50,000,000 or such lesser amount as the President shall estab- lish by regulation, but in no event less than $5,000,000 (or, for releases of hazardous substances as defined in section 101(14XA) of this title into the navigable waters, $8,000,000). Such regulations shall take into account the size, type, loca- tion, storage, and handling capacity and other matters relating to the likelihood of release in each such class and to the eco- nomic impact of such limits on each such class; or (D) for any incineration vessel or any facility other than those specified in subparagraph (C) of this paragraph, the total of all costs of response plus $50,000,000 for any damages under this title. (2) Notwithstanding the limitations in paragraph (1) of this sub- section, the liability of an owner or operator or other responsible person under this section shall be the full and total costs of re- sponse and damages, if (AXi) the release or threat of release of a hazardous substance was the result of willful misconduct or willful negligence within the privity or knowledge of such person, or (ii) the primary cause of the release was a violation (within the privity or knowledge of such person) of applicable safety, construction, or operating standards or regulations; or (B) such person fails or re- fuses to provide all reasonable cooperation and assistance request- ed by a responsible public official in connection with response ac- tivities under the national contingency plan with respect to regu- lated carriers subject to the provisions of title 49 of the United States Code or vessels subject to the provisions of title 33 or 46 of the United States Code, subparagraph (AXii) of this paragraph shall be deemed to refer to Federal standards or regulations. (3) If any person who is liable for a release or threat of release of a hazardous substance fails without sufficient cause to properly provide removal or remedial action upon order of the President pursuant to section 104 or 106 of this Act, such person may be liable to the United States for punitive damages in an amount at least equal to, and not more than three times, the amount of any costs incurred by the Fund as a result of such failure to take proper action. The President is authorized to commence a civil action against any such person to recover the punitive damages, which shall be in addition to any costs recovered from such person pursuant to section 112(c) of this Act. Any moneys received by the 217 39 United States pursuant to this subsection shall be deposited in the Fund. [(d) No person shall be liable under this title for damages as a result of actions taken or omitted in the course of rendering care, assistance, or advice in accordance with the national contingency plan or at the direction of an onscene coordinator appointed under such plan, with respect to an incident creating a danger to public health or welfare or the environment as a result of any release of a hazardous substance or the threat thereof. This subsection shall not preclude liability for damages as the result of gross negligence or intentional misconduct on the part of such person. For the pur- poses of the preceding sentence, reckless, willful, or wanton miscon- duct shall constitute gross negligence. J (d) Rendering Care or Advice. — (1) In general. — Except as provided in paragraph (2), no person shall be liable under this title for costs or damages as a result of actions taken or omitted in the course of rendering care, assistance, or advice in accordance with the National Con- tingency Plan C'NCP") or at the direction of an onscene coordi- nator appointed under such plan, with respect to an incident creating a danger to public health or welfare or the environ- ment as a result of any releases of a hazardous substance or the threat thereof This paragraph shall not preclude liability for costs or damages as the result of negligence on the part of such person. (2) State and local governments. — No State or local gov- ernment shall be liable under this title for costs or damages as a result of actions taken in response to an emergency created by the release or threatened release of a hazardous substance gen- erated by or from a facility owned by another person. This para- graph shall not preclude liability for costs or damages as a result of gross negligence or intentional misconduct by the State or local government. For the purpose of the preceding sentence, reckless, willful, or wanton misconduct shall constitute gross negligence. (3) Savings provision. — This subsection shall not alter the liability of any person covered by the provisions of paragraph (1), (2), (3), or (i) of subsection (a) of this section with respect to the release or threatened release concerned. (e)(1) No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or opera- tor of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the liability imposed under this section. Nothing in this sub- section shall bar any agreement to insure, hold harmless, or indem- nify a party to such agreement for any liability under this section. (2) Nothing in this title, including the provisions of paragraph (1) of this subsection, shall bar a cause of action that an owner or op- erator or any other person subject to liability under this section, or a guarantor, has or would have, by reason of subrogation or other- wise against any person. {i)(l) Natural Resources Liability.— In the case of an injury to, destruction of, or loss of natural resources under subparagraph (C) of subsection (a) liability shall be to the United States Government 218 40 and to any State for natural resources within the State or belong- ing to, managed by, controlled by, or appertaining to such State and to any Indian tribe for natural resources belonging to, manager by, controlled by, or appertaining to such tribe, or held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust restriction on alienation: Pro- vided, however, That no liability to the United States or State or Indian tribe shall be imposed under subparagraph (C) of subsection (a), where the party sought to be charged has demonstrated that the damages to natural resources complained of were specifically identified as an irreversible and irretrievable commitment of natu- ral resources in an environmental impact statement, or other com- parable environment analysis, and the decision to grant a permit or license authorizes such commitment of natural resources, and the facility or project was otherwise operating within the terms of its permit or license, so long as, in the case of damages to an Indian tribe occurring pursuant to a Federal permit or license, the issuance of that permit or license was not inconsistent with the fi- duciary duty of the United States with respect to such Indian tribe. The President, or the authorized representative of any State, shall act on behalf of the public as trustee of such natural resources to recover for such damages. [Sums recovered shall be available for use to restore, rehabilitate, or acquire the equivalent of such natu- ral resources by the appropriate agencies of the Federal Govern- ment or the State government, or the Indian tribe ^ but the meas- ure of such damages shall not be limited by the sums which can be used to restore or replace such resources.] Sums recovered by the United States Government as trustee under this subsection shall be retained by the trustee, without further appropriation, for use only to restore, replace, or acquire the equivalent of such natural re- sources. Sums recovered by a State as trustee under this subsection shall be available for use only to restore, replace, or acquire the equivalent of such natural resources by the State. The measure of damages in any action under subparagraph (C) of subsection (a) shall not be limited by the sums which can be used to restore or re- place such resources. There shall be no double recovery under this Act for natural resource damages, including the costs of damage as- sessment or restoration, rehabilitation, or acquisition for the same release and natural resource. There shall be no recovery under the authority of subparagraph (C) of subsection (a) where such damages and the release of a hazardous substance from which such damages resulted have occurred wholly before the enactment of this Act. (2) Designation of Federal and State Officials. — (A) Federal. — The President shall designate in the National Contingency Plan published under section 105 of this Act the Federal officials who shall act on behalf of the public as trust- ees for natural resources under this Act and section 311 of the Federal Water Pollution Control Act. Such officials shall assess damages for injury to, destruction of, or loss of natural re- sources for purposes of this Act and such section 311 for those resources under their trusteeship and may, upon request of and The phrase "or the Indian tribe" was inserted here by section 207(cXlXD) of PubHc Law 99-499. 219 41 reimbursement from a State and at the Federal officials discre- tion, assess damages for those natural resources under the State's trusteeship. (B) State. — The Governor of each State shall designate State officials who may act on behalf of the public as trustee for nat- ural resources under this Act and section 311 of the Federal Water Pollution Control Act and shall notify the President of such designations: Such State officials shall assess damages to natural resources for the purposes of this Act and such section 311 for those natural resources under their trusteeship. (C) Rebuttable presumption. — Any determination or assess- ment of damages to natural resources for the purposes of this Act and section 311 of the Federal Water Pollution Control Act made by a Federal or State trustee in accordance with the regu- lations promulgated under section 301(c) of this Act shall have the force and effect of a rebuttable presumption on behalf of the trustee in any administrative or judicial proceeding under this Act or section 311 of the Federal Water Pollution Control Act. [(g) Each department, agency, or instrumentality of the execu- tive, legislative, and judicial branches of the Federal Government shall be subject to, and comply with, this Act in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under this sec- tion.] (g) Federal Agencies. — For provisions relating to Federal agencies, see section 120 of this Act. (h) The owner or operator of a vessel shall be liable in accord- ance with this section, under Maritime tort law, and as provided under section 114 of this Act notwithstanding any provision of the Act of March 3, 1851 (46 U.S.C. 183ff) or the absence of any physical damage to the proprietary interest of the claimant. (i) No person (including the United States or any State or Indian tribe) may recover under the authority of this section for any re- sponse costs or damages resulting from the application of a pesti- cide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act. Nothing in this paragraph shall affect or modify in any way the obligations or liability of any person under any other provision of State or Federal law, including common law, for damages, injury, or loss resulting from a release of any hazard- ous substance or for removal or remedial action or the costs of re- moval or remedial action of such hazardous substance. (j) Recovery by any person (including the United States or any State or Indian tribe) for response costs or damages resulting from a federally permitted release shall be pursuant to existing law in lieu of this section. Nothing in this paragraph shall affect or modify in any way the obligations or liability of any person under any other provision of State or Federal law, including common law, for damages, injury, or loss resulting from a release of any hazard- ous substance or for removal or remedial action or the costs of re- moval or remedial action of such hazardous substance. In addition, costs of response incurred by the Federal Government in connec- tion with a discharge specified in section 101(10) (B) or (C) shall be recoverable in an action brought under section 309(b) of the Clean Water Act. 220 42 (k)(l) The liability established by this section or any other law for the owner or operator of a hazardous waste disposal facility which has received a permit under subtitle C of the Solid Waste Disposal Act, shall be transferred to and assumed by the Post-closure Liabil- ity Fund established by section 232 of this Act when— (A) such facility and the owner and operator thereof has complied with the requirements of subtitle C of the Solid Waste Disposal Act and regulations issued thereunder, which may affect the performance of such facility after closure; and (B) such facility has been closed in accordance with such reg- ulations and the conditions of such permit, and such facility and the surrounding area have been monitored as required by such regulations and permit conditions for a period not to exceed hve years after closure to demonstrate that there is no substantial likelihood that any migration offsite or release from confinement of any hazardous substance or other risk to public health or welfare will occur. (2) Such transfer of liability shall be effective ninety days after the owner or operator of such facility notifies the Administrator of the Environmental Protection Agency (and the State where it has an authorized program under section 3006(b) of the Solid Waste Disposal Act) that the conditions imposed by this subsection have been satisfied. If within such ninety-day period the Administrator of the Environmental Protection Agency or such State determines that any such facility has not complied with all the conditions im- posed by this subsection or that insufficient information has been provided to demonstrate such compliance, the Administrator or such State shall so notify the owner and operator of such facility and the administrator of the Fund established by section 232 of this Act, and the owner and operator of such facility shall continue to be liable with respect to such facility under this section and other law until such time as the Administrator and such State de- termines that such facility has complied with all conditions im- posed by this subsection. A determination by the Administrator or such State that a facility has not complied with all conditions im- posed by this subsection or that insufficient information has been supplied to demonstrate compliance, shall be a final administrative action for purposes of judicial review. A request for additional in- formation shall state in specific terms the data required. (3) In addition to the assumption of liability of owners and opera- tors under paragraph (1) of this subsection, the Post-closure Liabil- ity Fund established by section 232 of this Act may be used to pay costs of monitoring and care and maintenance of a site incurred by other persons after the period of monitoring required by regula- tions under subtitle C of the Solid Waste Disposal Act for hazard- ous waste disposal facilities meeting the conditions of paragraph (1) of this subsection. (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 estab- lishing or qualifying an optional system of private insurance for postclosure financial responsibility for hazardous waste disposal fa- cilities to which this subsection applies. Such study shall include a specification of adequate and realistic minimum standards to 221 43 assure that any such privately placed insurance will carry out the purposes of this subsection in a reliable, enforceable, and practical manner. Such a study shall include an examination of the public and private incentives, programs, and actions necessary to make privately placed insurance a practical and effective option to the financing system for the Post-closure Liability Fund provided in title II of this Act. (B) Not later than eighteen months after the date of enactment of this Act and after a public hearing, the President shall by rule determine whether or not it is feasible to establish or qualify an optional system of private insurance for postclosure financial responsibility for hazardous waste disposal facilities to which this subsection applies. If the President determines the establishment or qualification of such a system would be infeasible, he shall promptly publish an explanation of the reasons for such a determi- nation. If the President determines the establishment or qualifica- tion of such a system would be feasible, he shall promptly publish notice of such determination. Not later than six months after an affirmative determination under the preceding sentence and after a public hearing, the President shall by rule promulgate adequate and realistic minimum standards which must be met by any such privately placed insurance, taking into account the purposes of this Act and this subsection. Such rules shall also specify reasonably ex- peditious procedures by which privately placed insurance plans can qualify as meeting such minimum standards. (C) In the event any privately placed insurance plan qualifies under subparagraph (B), any person enrolled in, and complying with the terms of, such plan shall be excluded from the provisions of paragraphs (1), (2), and (3) of this subsection and exempt from the requirements to pay any tax or fee to the Post-closure Liability Fund under title II of this Act. (D) The President may issue such rules and take such other ac- tions as are necessary to effectuate the purposes of this paragraph. (5) Suspension of Liability Transfer.— Notwithstanding para- graphs (1), (2), (2), and (4) of this subsection and subsection (j) of sec- tion HI of this Act, no liability shall be transferred to or assumed by the Post-Closure Liability Trust Fund established by section 222 of this Act prior to completion of the study required under para- graph (6) of this subsection, transmission of a report of such study to both Houses of Congress, and authorization of such a transfer or assumption by Act of Congress following receipt of such study and report (6) Study of Options for Post-Closure Program.— (A) Study.— The Comptroller General shall conduct a study of options for a program for the management of the liabilities associated with hazardous waste treatment, storage, and dispos- al sites after their closure which complements the policies set forth in the Hazardous and Solid Waste Amendments of 1984 and assures the protection of human health and the environ- ment. (B) Program elements.— The program referred to in sub- paragraph (A) shall be designed to assure each of the following: 222 44 (i) Incentives are created and maintained for the safe management and disposal of hazardous wastes so as to assure protection of human health and the environment. (ii) Members of the public will have reasonable confi- dence that hazardous wastes will be managed and disposed of safely and that resources will be available to address any problems that may arise and to cover costs of long-term monitoring, care, and maintenance of such sites. (Hi) Persons who are or seek to become owners and opera- tors of hazardous waste disposal facilities will be able to manage their potential future liabilities and to attract the investment capital necessary to build, operate, and close such facilities in a manner which assures protection of human health and the environment. (C) Assessments. — The study under this paragraph shall in- clude assessments of treatment, storage, and disposal facilities which have been or are likely to be issued a permit under sec- tion 3005 of the Solid Waste Disposal Act and the likelihood of future insolvency on the part of owners and operators of such facilities. Separate assessments shall be made for different classes of facilities and for different classes of land disposal fa- cilities and shall include but not be limited to — (i) the current and future financial capabilities of facility owners and operators; (ii) the current and future costs associated with facilities, including the costs of routine monitoring and maintenance, compliance monitoring, corrective action, natural resource damages, and liability for damages to third parties; and (Hi) the availability of mechanisms by which owners and operators of such facilities can assure that current and future costs, including post-closure costs, will be financed. (D) Procedures. — In carrying out the responsibilities of this paragraph, the Comptroller General shall consult with the Ad- ministrator, the Secretary of Commerce, the Secretary of the Treasury, and the heads of other appropriate Federal agencies. (E) Consideration of options. — In conducting the study under this paragraph, the Comptroller General shall consider various mechanisms and combinations of mechanisms to com- plement the policies set forth in the Hazardous and Solid Waste Amendments of 1984 to serve the purposes set forth in subpara- graph (B) and to assure that the current and future costs associ- ated with hazardous waste facilities, including post-closure costs, will be adequately financed and, to the greatest extent possible, borne by the owners and operators of such facilities. Mechanisms to be considered include, but are not limited to — (i) revisions to closure, post-closure, and financial respon- sibility requirements under subtitles C and I of the Solid Waste Disposal Act; (ii) voluntary risk pooling by owners and operators; (Hi) legislation to require risk pooling by owners and op- erators; (iv) modification of the Post-Closure Liability Trust Fund previously established by section 232 of this Act, and the conditions for transfer of liability under this subsection, in- 223 45 eluding limiting the transfer of some or all liability under this subsection only in the case of insolvency of owners and operators; (v) private insurance; (vi) insurance provided by the Federal Government; (vii) coinsurance, reinsurance, or pooled-risk insurance, whether provided by the private sector or provided or assist- ed by the Federal Government; and (viii) creation of a new program to be administered by a new or existing Federal agency or by a federally chartered corporation. (F) Recommendations. — The Comptroller General shall con- sider options for funding any program under this section and shall, to the extent necessary, make recommendations to the ap- propriate committees of Congress for additional authority to im- plement such program. (I) Federal Lien.— (1) In general. — All costs and damages for which a person is liable to the United States under subsection (a) of this section (other than the owner or operator of a vessel under paragraph (1) of subsection (a)) shall constitute a lien in favor of the United States upon all real property and rights to such property which — (A) belong to such person; and (B) are subject to or affected by a removal or remedial action. (2) Duration. — The lien imposed by this subsection shall arise at the later of the following: (A) The time costs are first incurred by the United States with respect to a response action under this Act. (B) The time that the person referred to in paragraph (1) is provided (by certified or registered mail) written notice of potential liability. Such lien shall continue until the liability for the costs (or a judgment against the person arising out of such liability) is sat- isfied or becomes unenforceable through operation of the statute of limitations provided in section US. (3) Notice and validity. — The lien imposed by this subsec- tion shall be subject to the rights of any purchaser, holder of a security interest, or judgment lien creditor whose interest is per- fected under applicable State law before notice of the lien has been filed in the appropriate office within the State (or county or other governmental subdivision), as designated by State law, in which the real property subject to the lien is located. Any such purchaser, holder of a security interest, or judgment lien creditor shall be afforded the same protections against the lien imposed by this subsection as are afforded under State law against a judgment lien which arises out of an unsecured obli- gation and which arises as of the time of the filing of the notice of the lien imposed by this subsection. If the State has not by law designated one office for the receipt of such notices of liens, the notice shall be filed in the office of the clerk of the United States district court for the district in which the real property is located. For purposes of this subsection, the terms "purchaser" 224 46 and "security interest'' shall have the definitions provided under section 6323(h) of the Internal Revenue Code of 1954. (4) Action in rem. — The costs constituting the lien may be re- covered in an action in rem in the United States district court for the district in which the removal or remedial action is oc- curring or has occurred. Nothing in this subsection shall affect the right of the United States to bring an action against any person to recover all costs and damages for which such person is liable under subsection (a) of this section, (m) Maritime Lien. — All costs and damages for which the owner or operator of a vessel is liable under subsection (aXV with respect to a release or threatened release from such vessel shall constitute a maritime lien in favor of the United States on such vessel. Such costs may be recovered in an action in rem in the district court of the United States for the district in which the vessel may be found. Nothing in this subsection shall affect the right of the United States to bring an action against the owner or operator of such vessel in any court of competent jurisdiction to recover such costs. FINANCIAL RESPONSIBILITY Sec. 108. (a)(1) The owner or operator of each vessel (except a non-self-propelled barge that does not carry hazardous substances as cargo) over three hundred gross tons that uses any port or place in the United States or the navigable waters or any offshore facili- ty, shall establish and maintain, in accordance with regulations promulgated by the President, evidence of financial responsibility of $300 per gross ton (or for a vessel carrying hazardous substances as cargo, or $5,000,000, whichever is greater to cover the liability prescribed under paragraph (1) of section 107(a) of this Act). Finan- cial responsibility may be established by any one, or any combina- tion, of the following: insurance, guarantee, surety bond, or qualifi- cation as a self-insurer. Any bond filed shall be issued by a bonding company authorized to do business in the United States. In cases where an owner or operator owns, operates, or charters more than one vessel subject to this subsection, evidence of financial responsi- bility need be established only to meet the maximum liability ap- plicable to the largest of such vessels. (2) The Secretary of the Treasury shall withhold or revoke the clearance required by section 4197 of the Revised Statutes of the United States of any vessel subject to this subsection that does not have certification furnished by the President that the financial re- sponsibility provisions of paragraph (1) of this subsection have been complied with. (3) The Secretary of Transportation, in accordance with regula- tions issued by him, shall (A) deny entry to any port or place in the United States or navigable waters to, and (B) detain at the port or place in the United States from which it is about to depart for any other port or place in the United States, any vessel subject to this subsection that, upon request, does not produce certification fur- nished by the President that the financial responsibility provisions of paragraph (1) of this subsection have been complied with. (4) In addition to the financial responsibility provisions of para- graph (1) of this subsection, the President shall require additional 225 47 evidence of financial responsibility for incineration vessels in such amounts, and to cover such liabilities recognized by law, as the President deems appropriate, taking into account the potential risks posed by incineration and transport for incineration, and any other factors deemed relevant. (b)(1) Beginning not earlier than five years after the date of en- actment of this Act, the President shall promulgate requirements (for facilities in addition to those under subtitle C of the Solid Waste Disposal Act and other Federal law) that classes of facilities establish and maintain evidence of financial responsibility consist- ent with the degree and duration of risk associated with the pro- duction, transportation, treatment, storage, or disposal of hazard- ous substances. Not later than three years after the date of enact- ment of the Act, the President shall identify those classes for which requirements will be first developed and publish notice of such identification in the Federal Register. Priority in the develop- ment of such requirements shall be accorded to those classes of fa- cilities, owners, and operators which the President determines present the highest level of risk of injury. (2) The level of financial responsibility shall be initially estab- lished, and, when necessary, adjusted to protect against the level of risk which the President in his discretion believes is appropriate based on the payment experience of the Fund, commercial insur- ers, courts settlements and judgments, and voluntary claims satis- faction. To the maximum extent practicable, the President shall co- operate with and seek the advice of the commercial insurance in- dustry in developing financial responsibility requirements. Finan- cial responsibility may be established by any one, or any combina- tion, of the following: insurance, guarantee, surety bond, letter of credit, or qualification as a self-insurer. In promulgating require- ments under this section, the President is authorized to specify policy or other contractual terms, conditions, or defenses which are necessary, or which are unacceptable, in establishing such evidence of financial responsibility in order to effectuate the purposes of this Act. (3) Regulations promulgated under this subsection shall incrementally impose financial responsibility requirements [over a period of not less than three and no more than six years] as quick- ly as can reasonably be achieved but in no event more than 4 years after the date of promulgation. Where possible, the level of finan- cial responsibility which the President believes appropriate as a final requirement shall be achieved through incremental, annual increases in the requirements. (4) Where a facility is owned or operated by more than one person, evidence of financial responsibility covering the facility may be established and maintained by one of the owners or opera- tors, or, in consolidated form, by or on behalf of two or more owners or operators. When evidence of financial responsibility is established in a consolidated form, the proportional share of each participant shall be shown. The evidence shall be accompanied by a statement authorizing the applicant to act for and in behalf of each participant in submitting and maintaining the evidence of financial responsibility. 226 48 (5) The requirements for evidence of financial responsibility for motor carriers covered by this Act shall be determined under sec- tion 30 of the Motor Carrier Act of 1980, Public Law 96-296. [(c) Any claim authorized by section 107 or 111 may be asserted directly against any guarantor providing evidence of financial responsibility as required under this section. In defending such a claim, the guarantor may invoke all rights and defenses which would be available to the owner or operator under this title. The guarantor may also invoke the defense that the incident was caused by the willful misconduct of the owner or operator, but such guarantor may not invoke any other defense that such guarantor might have been entitled to invoke in a proceeding brought by the owner or operator against him. [(d) Any guarantor acting in good faith against which claims under this Act are asserted as a guarantor shall be liable under section 107 or section 112(c) of this title only up to the monetary limits of the policy of insurance or indemnity contract such guar- antor has undertaken or of the guaranty of other evidence of finan- cial responsibility furnished under section 108 of this Act, and only to the extent that liability is not excluded by restrictive endorse- ment: Provided, That this subsection shall not alter the liability of any person under section 107 of this Act.] (c) Direct Action. — (1) Releases from vessels. — In the case of a release or threatened release from a vessel, any claim authorized by sec- tion 107 or 111 may he asserted directly against any guarantor providing evidence of financial responsibility for such vessel under subsection (a). In defending such a claim, the guarantor may invoke all rights and defenses which would be available to the owner or operator under this title. The guarantor may also invoke the defense that the incident was caused by the willful misconduct of the owner or operator, but the guarantor may not invoke any other defense that the guarantor might have been entitled to invoke in a proceeding brought by the owner or oper- ator against him. (2) Releases from facilities. — In the case of a release or threatened release from a facility, any claim authorized by sec- tion 107 or 111 may be asserted directly against any guarantor providing evidence of financial responsibility for such facility under subsection (b), if the person liable under section 107 is in bankruptcy, reorganization, or arrangement pursuant to the Federal Bankruptcy Code, or if with reasonable diligence, juris- diction in the Federal courts cannot be obtained over a person liable under section 107 who is likely to be solvent at the time of judgment. In the case of any action pursuant to this para- graph, the guarantor shall be entitled to invoke all rights and defenses which would have been available to the person liable under section 107 if any action had been brought against such person by the claimant and all rights and defenses which would have been available to the guarantor if an action had been brought against the guarantor by such person. (d) Limitation of Guarantor Liability.— (1) Total liability.— The total liability of any guarantor in a direct action suit brought under this section shall be limited 227 49 to the aggregate amount of the monetary limits of the policy of insurance, guarantee, surety bond, letter of credit, or similar in- strument obtained from the guarantor by the person subject to liability under section 107 for the purpose of satisfying the re- quirement for evidence of financial responsibility. (2) Other liability. — Nothing in this subsection shall be construed to limit any other State or Federal statutory, contrac- tual, or common law liability of a guarantor, including, but not limited to, the liability of such guarantor for bad faith either in negotiating or in failing to negotiate the settlement of any claim. Nothing in this subsection shall be construed, interpret- ed, or applied to diminish the liability of any person under sec- tion 107 of this Act or other applicable law. [penalty [Sec. 109. Any person who, after notice and an opportunity for a hearing, is found to have failed to comply with the requirements of section 108, the regulations issued thereunder, or with any denial or detention order shall be liable to the United States for a civil penalty, not to exceed $10,000 for each day of violation.] CIVIL PENALTIES AND AWARDS Sec. 109. (a) Class I Administrative Penalty.— (1) Violations.— A civil penalty of not more than $25,000 per violation may be assessed by the President in the case of any of the following — (A) A violation of the requirements of section 103 (a) or (b) (relating to notice). (B) A violation of the requirements of section 103(d)(2) (re- lating to destruction of records, etc.). (C) A violation of the requirements of section 108 (relat- ing to financial responsibility, etc.), the regulations issued under section 108, or with any denial or detention order under section 108. (D) A violation of an order under section 122(d)(3) (relat- ing to settlement agreements for action under section 104(b)). (E) Any failure or refusal referred to in section 122(1) (re- lating to violations of administrative orders, consent de- crees, or agreements under section 120). (2) Notice and hearings. — No civil penalty may be assessed under this subsection unless the person accused of the violation is given notice and opportunity for a hearing with respect to the violation. (3) Determining amount. — In determining the amount of any penalty assessed pursuant to this subsection, the President shall take into account the nature, circumstances, extent and gravity of the violation or violations and, with respect to the vi- olator, ability to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any) result- ing from the violation, and such other matters as justice may require. 228 50 (It) Review. — Any person against whom a civil penalty is as- sessed under this subsection may obtain review thereof in the appropriate district court of the United States by filing a notice of appeal in such court within 30 days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the President. The President shall promptly file in such court a certified copy of the record upon which such violation was found or such penalty imposed. If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order or after the appropriate court has entered final judgment in favor of the United States, the President may request the Attorney General of the United States to institute a civil action in an appropriate district court of the United States to collect the penalty, and such court shall have jurisdiction to hear and decide any such action. In hear- ing such action, the court shall have authority to review the violation and the assessment of the civil penalty on the record. (5) Subpoenas. — The President may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, or documents in connection with hear- ings under this subsection. In case of contumacy or refusal to obey a subpoena issued pursuant to this paragraph and served upon any person, the district court of the United States for any district in which such person is found, resides, or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requir- ing such person to appear and give testimony before the admin- istrative law judge or to appear and produce documents before the administrative law judge, or both, and any failure to obey such order of the court may be punished by such court as a con- tempt thereof, (b) Class II Administrative Penalty.— A civil penalty of not more than $25,000 per day for each day during which the violation continues may be assessed by the President in the case of any of the following — (1) A violation of the notice requirements of section 103 (a) or (2) A violation of section 103(d)(2) (relating to destruction of records, etc.). (3) A violation of the requirements of section 108 (relating to financial responsibility, etc.), the regulations issued under sec- tion 108, or with any denial or detention order under section 108. (I^) A violation of an order under section 122(d)(3) (relating to settlement agreements for action under section 104(b)). (5) Any failure or refusal referred to in section 122(1) (relating to violations of administrative orders, consent decrees, or agree- ments under section 120). In the case of a second or subsequent violation the amount of such penalty may be not more than $75,000 for each day during which the violation continues. Any civil penalty under this subsection shall be assessed and collected in the same manner, and subject to the same provisions, as in the case of civil penalties assessed and collected after notice and opportunity for hearing on the record in 229 51 accordance with section 554 of title 5 of the United States Code. In any proceeding for the assessment of a civil penalty under this sub- section the President may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents and may promulgate rules for discovery procedures. Any person who requested a hearing with respect to a civil penalty under this subsection and who is aggrieved by an order assessing the civil penalty may file a petition for Judicial review of such order with the United States Court of Appeals for the District of Colum- bia Circuit or for any other circuit in which such person resides or transacts business. Such a petition may only be filed within the 30- day period beginning on the date the order making such assessment was issued. (c) Judicial Assessment. — The President may bring an action in the United States district court for the appropriate district to assess and collect a penalty of not more than $25,000 per day for each day during which the violation (or failure or refusal) continues in the case of any of the following — (1) A violation of the notice requirements of section 103 (a) or (b). (2) A violation of section 103(dX2) (relating to destruction of records, etc.). (3) A violation of the requirements of section 108 (relating to financial responsibility, etc.), the regulations issued under sec- tion 108, or with any denial or detention order under section 108. (4) A violation of an order under section 122(dX3) (relating to settlement agreements for action under section 104(b)). (5) Any failure or refusal referred to in section 122(1) (relating to violations of administrative orders, consent decrees, or agree- ments under section 120). In the case of a second or subsequent violation (or failure or refus- al), the amount of such penalty may be not more than $75,000 for each day during which the violation (or failure or refusal) contin- ues. For additional provisions providing for judicial assessment of civil penalties for failure to comply with a request or order under section 104(e) (relating to information gathering and access authori- ties), see section 104(e). (d) Awards. — The President may pay an award of up to $10,000 to any individual who provides information leading to the arrest and conviction of any person for a violation subject to a criminal penalty under this Act, including any violation of section 103 and any other violation referred to in this section. The President shall, by regulation, prescribe criteria for such an award and may pay any award under this subsection from the Fund, as provided in section 111. (e) Procurement Procedures. — Notwithstanding any other pro- vision of law, any executive agency may use competitive procedures or procedures other than competitive procedures to procure the serv- ices of experts for use in preparing or prosecuting a civil or criminal action under this Act, whether or not the expert is expected to testify at trial. The executive agency need not provide any written justifica- tion for the use of procedures other than competitive procedures when procuring such expert services under this Act and need not 230 52 furnish for publication in the Commerce Business Daily or other- wise any notice of solicitation or synopsis with respect to such pro- curement. (f) Savings Clause. — Action taken by the President pursuant to this section shall not affect or limit the President's authority to en- force any provisions of this Act. EMPLOYEE PROTECTION Sec. 110. (a) No person shall fire or in any other way discrimi- nate against, or cause to be fired or discriminated against, any em- ployee or any authorized representative of employees by reason of the fact that such employee or representative has provided infor- mation to a State or to the Federal Government, filed, instituted, or caused to be filed or instituted any proceeding under this Act, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this Act. (b) Any employee or a representative of employees who believes that he has been fired or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such alleged violation occurs, apply to the Secre- tary of Labor for a review of such firing or alleged discrimination. A copy of the application shall be sent to such person, who shall be the respondent. Upon receipt of such application, the Secretary of Labor shall cause such investigation to be made as he deems appro- priate. Such investigation shall provide an opportunity for a public hearing at the request of any party to such review to enable the parties to present information relating to such alleged violation. The parties shall be given written notice of the time and place of the hearing at least five days prior to the hearing. Any such hear- ing shall be of record and shall be subject to section 554 of title 5, United States Code. Upon receiving the report of such investiga- tion, the Secretary of Labor shall make findings of fact. If he finds that such violation did occur, he shall issue a decision, incorporat- ing an order therein and his findings, requiring the party commit- ting such violation to take such affirmative action to abate the vio- lation as the Secretary of Labor deems appropriate, including, but not limited to, the rehiring or reinstatement of the employee or representative of employees to his former position with compensa- tion. If he finds that there was no such violation, he shall issue an order denying the application. Such order issued by the Secretary of Labor under this subparagraph shall be subject to judicial review in the same manner as orders and decisions are subject to judicial review under this Act. (c) Whenever an order is issued under this section to abate such violation, at the request of the applicant a sum equal to the aggre- gate amount of all costs and expenses (including the attorney's fees) determined by the Secretary of Labor to have been reasonably incurred by the applicant for, or in connection with, the institution and prosecution of such proceedings, shall be assessed against the person committing such violation. (d) This section shall have no application to any employee who acting without discretion from his employer (or his agent) deliber- ately violates any requirement of this Act. 231 (e) The President shall conduct continuing evaluations of poten- tial loss of shifts of employment which may result from the admin- istration or enforcement of the provisions of this Act, including, where appropriate, investigating threatened plant closures or re- ductions in employment allegedly resulting from such administra- tion or enforcement. Any employee who is discharged, or laid off, threatened with discharge or layoff, or otherwise discriminated against by any person because of the alleged results of such admin- istration or enforcement, or any representative of such employee, may request the President to conduct a full investigation of the matter and, at the request of any party, shall hold public hearings, require the parties, including the employer involved, to present in- formation relating to the actual or potential effect of such adminis- tration or enforcement on employment and any alleged discharge, layoff, or other discrimination, and the detailed reasons or justifica- tion therefore. Any such hearing shall be of record and shall be subject to section 554 of title 5, United States Code. Upon receiving the report of such investigation, the President shall make findings of fact as to the effect of such administration or enforcement on employment and on the alleged discharge, layoff, or discrimination and shall make such recommendations as he deems appropriate. Such report, findings, and recommendations shall be available to the public. Nothing in this subsection shall be construed to require or authorize the President or any State to modify or withdraw any action, standard, limitation, or any other requirement of this Act. USES OF FUND Sec. 111. (a) In General.— For the purposes specified in this sec- tion there is authorized to be appropriated from the Hazardous Sub- stance Superfund established under subchapter A of chapter 98 of the Internal Revenue Code of 1954 not more than $8,500,000,000 for the 5-year period beginning on the date of enactment of the Super- fund Amendments and Reauthorization Act of 1986. The preceding sentence constitutes a specific authorization for the funds appropri- ated under title II of Public Law 99-160 (relating to payment to the Hazardous Substances Trust Fund). The President shall use the money in the Fund for the following purposes: (1) [payment] Payment of governmental response costs in- curred pursuant to section 104 of this title, including costs in- curred pursuant to the Intervention on the High Seas Act[;]. (2) [payment] Payment of any claim for necessary response costs incurred by any other person as a result of carrying out the national contingency plan established under section 311(c) of the Clean Water Act and amended by section 105 of this title: Provided, however, That such costs must be approved under said plan and certified by the responsible Federal offi- cial [;]. (3) [payment] Payment of any claim authorized by subsec- tion (b) of this section and finally decided pursuant to section 112 of this title, including those costs set out in subsection 1 12(c)(3) of this title [;] . [and] (4) [payment] Payment of costs specified under subsection (c) of this section. 232 54 1 .3 X --•■a* -^ -•«a (5) Grants for technical assistance.— The cost of grants under section 117(e) (relating to public participation grants for technical assistance). (6) Lead contaminated soil. — Payment of not to exceed $15,000,000 for the costs of a pilot program for removal, decon- tamination, or other action with respect to lead-contaminated soil in one to three different metropolitan areas. The President shall not pay for any administrative costs or ex- penses out of the Fund unless such costs and expenses are reason- ably necessary for and incidental to the implementation of this title. (hYV In General. — Claims asserted and compensable but unsa- tisfied under provisions of section 311 of the Clean Water Act, which are modified by section 304 of this Act may be asserted against the Fund under this title; and other claims resulting from a release or threat of release of a hazardous substance from a vessel or a facility may be asserted against the Fund under this title for injury to, or destruction or loss of, natural resources, in- cluding cost for damage assessment: Provided, however. That any such claim may be asserted only by the President, as trustee, for natural resources over which the United States has sovereign rights, or natural resources within the territory or the fishery con- servation zone of the United States to the extent they are managed or protected by the United States, or by any State for natural re- sources within the boundary of that State belonging to, managed by, controlled by, or appertaining to the State, or by any Indian tribe or by the United States acting on behalf of any Indian tribe for natural resources belonging to, managed by, controlled by, or ap- pertaining to such tribe, or held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust restriction on alienation. (2) Limitation on Payment of Natural Resource Claims.— (A) General requirements. — No natural resource claim may be paid from the Fund unless the President determines that the claimant has exhausted all administrative and judicial reme- dies to recover the amount of such claim from persons who may be liable under section 107. (B) Definition.— As used in this paragraph, the term ''natu- ral resource claim" means any claim for injury to, or destruc- tion or loss of, natural resources. The term does not include any claim for the cost of natural resource damage assessment. (c) Uses of the Fund under subsection (a) of this section include — (1) [the] The costs of assessing both short-term and long- term injury to, destruction of, or loss of any natural resources resulting from a release of a hazardous substance [;]. (2) [the] The costs of Federal or State or Indian tribe efforts in the restoration, rehabilitation, or replacement or acquiring the equivalent of any natural resources injured, destroyed, or lost as a result of a release of a hazardous substance [;]. (3) [subject] Subject to such amounts as are provided in ap- propriation Acts, the costs of a program to identify, investi- gate, and take enforcement and abatement action against re- leases of hazardous substances [;]. 233 55 (4) [the costs of epidemiologic studies,] Any costs incurred in accordance with subsection (m) of this section (relating to ATSDR) and section 104(i) including the costs of epidemiologic and laboratory studies, health assessments, preparation of toxi- cologic profiles development and maintenance of a registry of persons exposed to hazardous substances to allow long-term health effect studies, and diagnostic services not otherwise available to determine whether persons in populations exposed to hazardous substances in connection with a release or a sus- pected release are suffering from long-latency diseases [;]. (5) [subject] Subject to such amounts as are provided in ap- propriation Acts, the costs of providing equipment and similar overhead, related to the purposes of this Act and section 311 of the Clean Water Act, and needed to supplement equipment and services available through contractors or other non-Feder- al entities, and of establishing and maintaining damage assess- ment capability, for any Federal agency involved in strike forces, emergency task forces, or other response teams under the national contingency plan[; and]. (6) [subject] Subject to such amounts as are provided in ap- propriation Acts, the costs of a program to protect the health and safety of employees involved in response to hazardous sub- stance releases. Such program shall be developed jointly by the Environmental Protection Agency, the Occupational Safety and Health Administration, and the National Institute for Oc- cupational Safety and Health and shall include, but not be lim- ited to, measures for identifying and assessing hazards to which persons engaged in removal, remedy, or other response to hazardous substances may be exposed, methods to protect workers from such hazards, and necessary regulatory and en- forcement measures to assure adequate protection of such em- ployees. (7) Evaluation costs under petition provisions of sec- tion 105(d). — Costs incurred by the President in evaluating fa- cilities pursuant to petitions under section 105(d) (relating to pe- titions for assessment of release). (8) Contract costs under section loMaxi). — The costs of contracts or arrangements entered into under section 10Ma)(l) to oversee and review the conduct of remedial investigations and feasibility studies undertaken by persons other than the Presi- dent and the costs of appropriate Federal and State oversight of remedial activities at National Priorities List sites resulting from consent orders or settlement agreements. (9) Acquisition costs under section loujl—The costs in- curred by the President in acquiring real estate or interests in real estate under section 1040) (relating to acquisition of proper- ty)- (10) Research, development, and demonstration costs UNDER SECTION 311. — The cost of Carrying out section 311 (relat- ing to research, development, and demonstration), except that the amounts available for such purposes shall not exceed the amounts specified in subsection (n) of this section. (11) Local government reimbursement. — Reimbursements to local governments under section 123, except that during the 234 56 1 -a 5-fiscdl-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 the fiscal years 1987, 1988, 1989, 1990, and 1991. (13) Awards under section io9. — The costs of any awards granted under section 109(d). (W Lead poisoning study.— The cost of carrying out the study under subsection (f) of section 118 of the Superfund Amendments and Reauthorization Act of 1986 (relating to lead poisoning in children). (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 sub- section (b) of this section, where the injury, destruction, or loss of natural resources and the release of a hazardous substance from which such damages resulted have occurred wholly before the en- actment of this Act. (2) No money in the Fund may be used for the payment of any claim under subsection (b) of this section where such expenses are associated with injury or loss resulting from long-term exposure to ambient concentrations of air pollutants from multiple or diffuse sources. (e)(1) Claims against or presented to the Fund shall not be valid or paid in excess of the total money in the Fund at any one time. Such claims become valid only when additional money is collected, appropriated, or otherwise added to the Fund. Should the total claims outstanding at any time exceed the current balance of the Fund, the President shall pay such claims, to the extent authorized under this section, in full in the order in which they were finally determined. (2) In any fiscal year, 85 percent of the money credited to the Fund under title II of this Act shall be available only for the pur- poses specified in paragraphs (1), (2), and (4) of subsection (a) of this section. No money in the Fund may be used for the payment of any claim under subsection (aX3) or subsection (b) of this section in any fiscal year for which the President determines that all of the Fund is needed ro response to threats to public health from releases or threatened releases of hazardous substances. (3) No money in the Fund shall be available for remedial action, other than actions specified in subsection (c) of this section, with respect to federally owned facilities,- except that money in the Fund shall be available for the provision of alternative water supplies (in- cluding the reimbursement of costs incurred by a municipality) in any case involving groundwater contamination outside the bound- aries of a federally owned facility in which the federally owned fa- cility is not the only potentially responsible party. (4) Paragraphs (1) and (4) of subsection (a) of this section shall m the aggregate be subject to such amounts as are provided in appro- priation Acts. . (f) The President is authorized to promulgate regulations desig- nating one or more Federal officials who may obligate money in 235 57 the Fund in accordance with this section or portions thereof. The President is also authorized to delegate authority to obligate money in the Fund or to settle claims to officials of a State or Indian tribe operating under a contract or cooperative agreement with the Fed- eral Government pursuant to section 104(d) of this title. (g) The President shall provide for the promulgation of rules and regulations with respect to the notice to be provided to potential injured parties by an owner and operator of any vessel, or facility from which a hazardous substance has been released- Such rules and regulations shall consider the scope and form of the notice which would be appropriate to carry out the purposes of this title. Upon promulgation of such rules and regulations, the owner and operator of any vessel or facility from which a hazardous substance has been released shall provide notice in accordance with such rules and regulations. With respect to releases from public vessels, the President shall provide such notification as is appropriate to potential injured parties. Until the promulgation of such rules and regulations, the owner and operator of any vessel or facility from which a hazardous substance has been released shall provide rea- sonable notice to potential injured parties by publication in local newspapers serving the affected area. [(h)(1) In accordance with regulations promulgated under section 301(c) of this Act, damages for injury to, destruction of, or loss of natural resources resulting from a release of a hazardous sub- stance, for the purposes of this Act and section 311(f) (4) and (5) of the Federal Water Pollution Control Act, shall be assessed by Fed- eral officials designated by the President under the national con- tingency plan published under section 105 of the Act, and such offi- cials shall act for the President as trustee under this section and section 311(f)(5) of the Federal Water Pollution Control Act. [(2) Any determination or assessment of damages for injury to, de- struction of, or loss of natural resources for the purposes of this Act and section 311(f) (4) and (5) of the Federal Water Pollution Control Act shall have the force and effect of a rebuttable pre- sumption on behalf of any claimant (including a trustee under sec- tion 107 of this Act or a Federal agency) in any judicial or adjudica- tory administrative proceeding under this Act or section 311 of the Federal Water Pollution Control Act.] (h) Reserved. (i) Except in a situation requiring action to avoid an irreversible loss of natural resources or to prevent or reduce any continuing danger to natural resources or similar need for emergency action, funds may not be used under this Act for the restoration, rehabili- tation, or replacement or acquisition of the equivalent of any natu- ral resources until a plan for the use of such funds for such pur- poses has been developed and adopted by affected Federal agencies and the Governor or Governors of any State and by the governing body of any Indian tribe having sustained damage to natural re- sources belonging to, managed by, controlled by, or appertaining to such tribe, or held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust restriction on alienation, having sustained damage to natural re- sources within its borders, belonging to, managed by or appertain- 236 58 ing to such State, after adequate public notice and opportunity for hearing and consideration of all public comment. (j) The President shall use the money in the Post-closure Liabil- ity Fund for any of the purposes specified in subsection (a) of this section with respect to a hazardous waste disposal facility for which liability has transferred to such fund under section 107(k) of this Act, and, in addition, for payment of any claim or appropriate request for costs of response, damages, or other compensation for injury or loss under section 107 of this Act or any other State or Federal law, resulting from a release of a hazardous substance from such a facility. [(k) The Inspector General of each department or agency to which responsibility to obligate money in the Fund is delegated shall provide an audit review team to audit all payments, obliga- tions, reimbursements, or other uses of the Fund, to assure that the Fund is being properly administered and that claims are being appropriately and expeditiously considered. Each such Inspector General shall submit to the Congress an interim report one year after the establishment of the Fund and a final report two years after the establishment of the Fund. Each such Inspector General shall thereafter provide such auditing of the Fund as is appropri- ate. Each Federal agency shall cooperate with the Inspector Gener- al in carrying out this subsection.] (k) Inspector General. — In each fiscal year, the Inspector Gener- al of each department, agency, or instrumentality of the United States which is carrying out any authority of this Act shall conduct an annual audit of all payments, obligations, reimbursements, or other uses of the Fund in the prior fiscal year, to assure that the Fund is being properly administered and that claims are being ap- propriately and expeditiously considered. The audit shall include an examination of a sample of agreements with States (in accord- ance with the provisions of the Single Audit Act) carrying out re- sponse actions under this title and an examination of remedial in- vestigations and feasibility studies prepared for remedial actions. The Inspector General shall submit to the Congress an annual report regarding the audit report required under this subsection. The report shall contain such recommendations as the Inspector General deems appropriate. Each department, agency, or instrumen- tality of the United States shall cooperate with its inspector general in carrying out this subsection. (1) To the extent that the provisions of this Act permit, a foreign claimant may assert a claim to the same extent that a United States claimant may assert a claim if^ (1) the release of a hazardous substance occurred (A) in the navigable waters or (B) in or on the territorial sea or adjacent shoreline of a foreign country of which the claimant is a resi- dent; (2) the claimant is not otherwise compensated for his loss; (3) the hazardous substance was released from a facility or from a vessel located adjacent to or within the navigable waters or was discharged in connection with activities conduct- ed under the Outer Continental Shelf Lands Act, as amended (43 U.S.C. 1331 et seq.) or the Deepwater Port Act of 1974, as amended (33 U.S.C. 1501 et seq.); and i 237 59 (4) recovery is authorized by a treaty or an executive agree- ment between the United States and foreign country involved, or if the Secretary of State, in consultation with the Attorney General and other appropriate officials, certifies that such country provides a comparable remedy for United States claim- ants. (m) Agency for Toxic Substances and Disease Registry.— There shall be directly available to the Agency for Toxic Substances and Disease Registry to be used for the purpose of carrying out ac- tivities described in subsection (cX4) o,nd section 104(i) not less than $50,000,000 per fiscal year for each of fiscal years 1987 and 1988, not less than $55,000,000 for fiscal year 1989, and not less than $60,000,000 per fiscal year for each of fiscal years 1990 and 1991. Any funds so made available which are not obligated by the end of the fiscal year in which made available shall be returned to the Fund. (n) Limitations on Research, Development, and Demonstra- tion Program. — (1) Section 311(b).— For each of the fiscal years 1987, 1988, 1989, 1990, and 1991, not more than $20,000,000 of the amounts available in the Fund may be used for the purposes of carrying out the applied research, development, and demonstration pro- gram for alternative or innovative technologies and training program authorized under section 311(b) (relating to research, development, and demonstration) other than basic research. Such amounts shall remain available until expended. (2) Section 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 re- search, demonstration, and training activities): (A) For the fiscal year 1987, $3, 000, 000. (B) For the fiscal year 1988, $10,000,000. (C) For the fiscal year 1989, $20, 000, 000. (D) For the fiscal year 1990, $30,000,000 (E) For the fiscal year 1991, $35,000,000. No more than 10 percent of such amounts shall be used for training under section 311(a) in any fiscal year. (3) Section 311(d).— For each of the fiscal years 1987, 1988, 1989, 1990, and 1991, not more than $5,000,000 of the amounts available in the Fund may be used for the purposes of section 311(d) (relating to university hazardous substance research cen- ters). (o) Notification Procedures for Limitations on Certain Pay- ments.— Not later than 90 days after the enactment of this subsec- tion, the President shall develop and implement procedures to ade- quately notify, as soon as practicable after a site is inclucled on the National Priorities List, concerned local and State officials and other concerned persons of the limitations, set forth in subsection (a)(2) of. this section, on the payment of claims for necessary response costs incurred with respect to such site, (p) General Revenue Share of Superfund. — (1) In general.— The following sums are authorized to be ap- propriated, out of any money in the Treasury not otherwise ap- propriated, to the Hazardous Substance Superfund: 238 (A) For fiscal year 1987, $212,500,000. (B) For fiscal year 1988, $212,500,000 (C) For fiscal year 1989, $212,500, 000. (D) For fiscal year 1990, $212,500,000 (E) For fiscal year 1991, $212,500,000 In addition there is authorized to be appropriated to the Haz- ardous Substance Superfund for each fiscal year an amount equal to so much of the aggregate amount authorized to be ap- propriated under this subsection (and paragraph (2) of section 221(b) of the Hazardous Substance Response Revenue Act of 1980) as has not been appropriated before the beginning of the fiscal year involved. (2) Computation. — The amounts authorized to be appropri- ated under paragraph (1) of this subsection in a given fiscal year shall be available only to the extent that such amount ex- ceeds the amount determined by the Secretary under section 9507(b)(2) of the Internal Revenue Code of 1986 for the prior fiscal year. CLAIMS PROCEDURE Sec. 112. [(a) All claims which may be asserted against the Fund pursuant to section 111 of this title shall be presented in the first instance to the owner, operator, or guarantor of the vessel or facili- ty from which a hazardous substance has been released, if known to the claimant, and to any other person known to the claimant who may be liable under section 107 of this title. In any case where the claim has not been satisfied within sixty days of presentation in accordance with this subsection, the claimant may elect to com- mence an action in court against such owner, operator, guarantor, or other person or to present the claim to the Fund for payment.] (a) Claims Against the Fund for Response Costs. — No claims may be asserted against the Fund pursuant to section 111(a) unless such claim is presented in the first instance to the owner, operator, or guarantor of the vessel or facility from which a hazardous sub- stance has been released, if known to the claimant, and to any other person known to the claimant who may be liable under section 107. In any case where the claim has not been satisfied within 60 days of presentation in accordance with this subsection, the claimant may present the claim to the Fund for payment. No claim against the Fund may be approved or certified during the pendency of an action by the claimant in court to recover costs which are the subject of the claim. [(b)(l)3 (b)(1) Prescribing Forms and Procedures.— The Presi- dent shall prescribe appropriate forms and procedures for claims filed hereunder, which shall include a provision requiring the claimant to make a sworn verification of the claim to the best of his knowledge. Any person who knowingly gives or causes to be given any false information as a part of any such claim shall, upon conviction, be fined [up to $5,000 or imprisoned for not more than one year, or both.] in accordance with the applicable provisions of title 18 of the United States Code or imprisoned for not more than 3 years (or not more than 5 years in the case of a second or subsequent conviction), or both. 239 61 [(2)(A) Upon receipt of any claim, the President shall as soon as practicable inform any known affected parties of the claim and shall attempt to promote and arrange a settlement between the claimant and any person who may be liable. If the claimant and alleged liable party or parties can agree upon a settlement, it shall be final and binding upon the parties thereto, who will be deemed to have waived all recourse against the Fund. [(B) Where a liable party is unknown or cannot be determined, the claimant and the President shall attempt to arrange settlement of any claim against the Fund. The President is authorized to award and make payment of such a settlement, subject to such proof and procedures as he may promulgate by regulation. [(C) Except as provided in subparagraph (D) of this paragraph, the President shall use the facilities and services of private insur- ance and claims adjusting organizations or State agencies in imple- menting this subsection and may contract to pay compensation for those facilities and services. Any contract made under the provi- sions of this paragraph may be made without regard to the provi- sions of section 3709 of the Revised Statutes, as amended (41 U.S.C. 5), upon a showing by the President that advertising is not reason- ably practicable. When the services of a State agency are used hereunder, no payment may be made on a claim asserted on behalf of that State or any of its agencies or subdivisions unless the pay- ment has been approved by the President. [(D) To the extent necessitated by extraordinary circumstances, where the services of such private organizations or State agencies are inadequate, the President may use Federal personnel to imple- ment this subsection. [(3) If no settlement is reached within forty-five days of filing of a claim through negotiation pursuant to this section, the President may, if he is satisfied that the information developed during the processing of the claim warrants it, make and pay an award of the claim. If the claimant is dissatisfied with the award, he may appeal it in the manner provided for in subparagraph (G) of paragraph (4) of this subsection. If the President declines to make an award, he shall submit the claim for decision to a member of the Board of Ar- bitrators established pursuant to paragraph (4). [(4)(A) Within ninety days of the enactment of this Act, the President shall establish a Board of Arbitrators to implement this subsection. The Board shall consist of as many members as the President may determine will be necessary to implement this sub- section expeditiously, and he may increase or decrease the size of the Board at any time in his discretion in order to enable it to re- spond to the demands of such implementation. Each member of the Board shall be selected through utilization of the procedures of the American Arbitration Association: Provided, however, That no reg- ular employee of the President or any of the Federal departments, administrations, or agencies to whom he delegated responsibilities under this Act shall act as a member of the Board. [(B) Hearings conducted hereunder shall be public and shall be held in such place as may be agreed upon by the parties thereto, or, in the absence of such agreement, in such place as the Presi- dent determines, in his discretion, will be most convenient for the parties thereto. 75-032 0-90 240 62 [(C) Hearings before a member of the Board shall be informal, and the rules of evidence prevailing in judicial proceedings need not be required. Each member of the Board shall have the power to administer oaths and to subpena the attendance and testimony of witnesses and the production of books, records, and other evidence relative or pertinent to the issues presented to him for decision. Testimony may be taken by interrogatory or deposition. Each person appearing before a member of the Board shall have the right to counsel. Subpenas shall be issued and enforced in accord- ance with procedures in subsection (d) of section 555 of title 5, United States Code, and rules promulgated by the President. If a person fails or refuses to obey a subpena, the President may invoke the aid of the district court of the United States where the person is found, resides, or transacts business in requiring the attendance and testimony of the person and the production by him of books, papers, documents, or any tangible things. [(D) In any proceeding before a member of the Board, the claim- ant shall bear the burden of proving his claim. Should a member of the Board determine that further investigations, monitoring, sur- veys, testing, or other information gathering would be useful and necessary in deciding the claim, he may request the President in writing to undertake such activities pursuant to section 104(b) of this title. The President shall dispose of such a request in his sole discretion, taking into account various competing demands and the availability of the technical and financial capacity to conduct such studies, monitoring, and investigations. Should the President decide to undertake the requested actions, all time requirements for the processing and deciding of claims hereunder shall be sus- pended until the President reports the results thereof to the member of the Board. [(E) All costs and expenses approved by the President attributa- ble to the employment of any member of the Board shall be pay- able from the Fund, including fees and mileage expenses for wit- nesses summoned by such members on the same basis and to the same extent as if such witnesses were summoned before a district court of the United States. [(F) All decisions rendered by members of the Board shall be in writing, with notification to all appropriate parties, and shall be rendered within ninety days of submission of a claim to a member, unless all the parties to the claim agree in writing to an extension or unless the President extends the time limit pursuant to subpara- graph (I) of this subsection. [(G) All decisions rendered by members of the Board shall be final, and any party to the proceeding may appeal such a decision within thirty days of notification of the award or decision. Any such appeal shall be made to the Federal district court for the dis- trict where the arbitral hearing took place. In any such appeal, the award or decision of the member of the Board shall be considered binding and conclusive, and shall not be overturned except for arbi- trary or capricious abuse of the member's discretion: Provided, however, That no such award or decision shall be admissible as evi- dence of any issue of fact or law in any proceeding brought under any other provision of this Act or under any other provision of law. Nor shall any prearbitral settlement reached pursuant to subsec- 241 63 tion (b)(2)(A) of this section be admissible as evidence in any such proceeding. [(H) Within twenty days of the expiration of the appeal period for any arbitral award or decision, or within twenty days of the final judicial determination of any appeal taken pursuant to this subsection, the President shall pay any such award from the Fund. The President shall determine the method, terms, and time of pay- ment. [(I) If at any time the President determines that, because of a large number of claims arising from any incident or set of inci- dents, it is in the best interests of the parties concerned, he may extend the time for prearbitral negotiation or for rendering an ar- bitral decision pursuant to this subsection by a period not to exceed sixty days. He may also group such claims for submission to a member of the Board of Arbitrators. 3 (2) Payment or Request for Hearing. — The President may, if satisfied that the information developed during the processing of the claim warrants it, make and pay an award of the claim, except that no claim may he awarded to the extent that a judicial judg- ment has been made on the costs that are the subject of the claim. If the President declines to pay all or part of the claim, the claimant may, within 30 days after receiving notice of the President's deci- sion, request an administrative hearing. (3) Burden of Proof. — In any proceeding under this subsection, the claimant shall bear the burden of proving his claim. (4) Decisions.— All administrative decisions made hereunder shall be in writing, with notification to all appropriate parties, and shall be rendered within 90 days of submission of a claim to an ad- ministrative law judge, unless all the parties to the claim agree in writing to an extension or unless the President, in his discretion, ex- tends the time limit for a period not to exceed sixty days. (5) Finality and Appeal.^AU administrative decisions hereun- der shall be final, and any party to the proceeding may appeal a . decision within 30 days of notification of the award or decision. Any such appeal shall be made to the Federal district court for the district where the release or threat of release took place. In any such appeal, the decision shall be considered binding and conclusive, and shall not be overturned except for arbitrary or capricious abuse of discretion. (6) Payment.— Within 20 days after the expiration of the appeal period for any administrative decision concerning an award, or within 20 days after the final judicial determination of any appeal taken pursuant to this subsection, the President shall pay any such award from the Fund. The President shall determine the method, terms, and time of payment. (c)(1) Payment of any claim by the Fund under this section shall be subject to the United States Government acquiring by subroga- tion the rights of the claimant to recover those costs of removal or damages for which it has compensated the claimant from the person responsible or liable for such release. (2) Any person, including the Fund, who pays compensation pur- suant to this Act to any claimant for damages or costs resulting from a release of a hazardous substance shall be subrogated to all 242 64 rights; claims, and causes of action for such damages and costs of removal that the claimant has under this Act or any other law. (3) Upon request of the President, the Attorney General shall commence an action on behalf of the Fund to recover any compen- sation paid by the Fund to any claimant pursuant to this title, and, without regard to any limitation of liability, all interest, adminis- trative and adjudicative costs, and attorney's fees incurred by the Fund by reason of the claim. Such an action may be commenced against any owner, operator, or guarantor, or against any other person who is liable, pursuant to any law, to the compensated claimant or to the Fund, for the damages or costs for which com- pensation was paid. [(d) No claim may be presented, nor may an action be com- menced for damages under this title, unless that claim is presented or action commenced within three years from the date of the dis- covery of the loss or the date of enactment of this Act, whichever is later: Provided, however, That the time limitations contained herein shall not begin to run against a minor until he reaches eighteen years of age or a legal representative is duly appointed for him, nor against an incompetent person until his incompetency ends or a legal representative is duly appointed for him.] (d) Statute of Limitations. — (1) Claims for recovery of costs. — No claim may be pre- sented under this section for recovery of the costs referred to in section 107(a) after the date 6 years after the date of completion of all response action. (2) Claims for recovery of damages.— No claim may be presented under this section for recovery of the damages re- ferred to in section 107(a) unless the claim is presented within 2 years after the later of the following: (A) The date of the discovery of the loss and its connec- tion with the release in question. (B) The date on which final regulations are promulgated under section 301(c). (2) Minors and incompetents. — The time limitations con- tained herein shall not begin to run — (A) against a minor until the earlier of the date when such minor reaches 18 years of age or the date on which a legal representative is duly appointed for the minor, or (B) against an incompetent person until the earlier of the date on which such person 's incompetency ends or the date on which a legal representative is duly appointed for such incompetent person. (e) Regardless of any State statutory or common law to the con- trary, no person who asserts a claim against the Fund pursuant to this title shall be deemed or held to have waived any other claim not covered or assertable against the Fund under this title arising from the same incident, transaction, or set of circumstances, nor to have split a cause of action. Further, no person asserting a claim against the Fund pursuant to this title shall as a result of any de- termination of a question of fact or law made in connection with that claim be deemed or held to be collaterally stopped from rais- ing such question in connection with any other claim not covered 243 65 or assertable against the Fund under this title arising from the same incident, transaction, or set of circumstances. (f) Double Recovery Prohibited. — Where the President has paid out of the Fund for any response costs or any costs specified under section 111(c) (1) or (2), no other claim may be paid out of the Fund for the same costs. LITIGATION, JURISDICTION, AND VENUE Sec. 113. (a) Review of any regulation promulgated under this Act may be had upon application by any interested person only in the Circuit Court of Appeals of the United States for the District of Columbia. Any such application shall be made within ninety days from the date of promulgation of such regulations. Any matter with respect to which review could have been obtained under this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement or to obtain damages or recov- ery of response costs. (b) Except as provided in [subsection] subsections (a) and (h) of this section, the United States district courts shall have exclusive original jurisdiction over all controversies arising under this Act, without regard to the citizenship of the parties or the amount in controversy. Venue shall lie in any district in which the release or damages occurred, or in which the defendant resides, may be found, or has his principal office. For the purposes of this section, the Fund shall reside in the District of Columbia. (c) The provisions of subsections (a) and (b) of this section shall not apply to any controversy or other matter resulting from the as- sessment of collection of any tax, as provided by title II of this Act, or to the review of any regulation promulgated under the Internal Revenue Code of 1954. (d) No provision of this Act shall be deemed or held to moot any litigation concerning any release of any hazardous substance, or any damages associated therewith, commenced prior to enactment of this Act. (e) Nationwide Service of Process. — In any action by the United States under this Act, process may be served in any district where the defendant is found, resides, transacts business, or has ap- pointed an agent for the service of process. (f) Contribution.— (1) Contribution. — Any person may seek contribution from any other person who is liable or potentially liable under sec- tion 107(a), during or following any civil action under section 106 or under section 107(a). Such claims shall be brought in ac- cordance with this section and the Federal Rules of Civil Proce- dure, and shall be governed by Federal law. In resolving contri- bution claims, the court may allocate response costs among liable parties using such equitable factors as the court deter- mines are appropriate. Nothing in this subsection shall dimin- ish the right of any person to bring an action for contribution in the absence of a civil action under section 106 or section 107. (2) Settlement.— A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribu- 244 66 tion regarding matters addressed in the settlement. Such settle- ment does not discharge any of the other potentially liable per- sons unless its terms so provide, but it reduces the potential li- ability of the others by the amount of the settlement. (3) Persons not party to settlement.— (A) If the United States or a State has obtained less than complete relief from a person who has resolved its liability to the United States or the State in an administrative or judicially approved settlement, the United States or the State may bring an action against any person who has not so resolved its liability. (B) A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judi- cially approved settlement may seek contribution from any person who is not party to a settlement referred to in paragraph (2). (C) In any action under this paragraph, the rights of any person who has resolved its liability to the United States or a State shall be subordinate to the rights of the United States or the State. Any contribution action brought under this para- graph shall be governed by Federal law. (g) Period in Which Action May Be Brought— (1) Actions for natural resource damages.— Except as provided in paragraphs (3) and (4), no action may be com- menced for damages (as defined in section 101(6)) under this Act, unless that action is commenced within 3 years after the later of the following: (A) The date of the discovery of the loss and its connec- tion with the release in question. (B) The date on which regulations are promulgated under section 301(c). With respect to any facility listed on the National Priorities List C'NPL"), any Federal facility identified under section 120 (relating to Federal facilities), or any vessel or facility at which a remedial action under this Act is otherwise scheduled, an action for damages under this Act must be commenced within 3 years after the completion of the remedial action (excluding op- eration and maintenance activities) in lieu of the dates referred to in subparagraph (A) or (BX In no event may an action for damages under this Act with respect to such a vessel or facility be commenced (i) prior to 60 days after the Federal or State nat- ural resource trustee provides to the President and the poten- tially responsible party a notice of intent to file suit, or (ii) before selection of the remedial action if the President is dili- gently proceeding with a remedial investigation and feasibility study under section 10I^(b) or section 120 (relating to Federal fa- cilities). The limitation in the preceding sentence on commenc- ing an action before giving notice or before selection of the re- medial action does not apply to actions filed on or before the enactment of the Superfund Amendments and Reauthorization Act of 1986 (2) Actions for recovery of cosTS.^An initial action for recovery of the costs referred to in section 107 must be com- menced — 245 67 (A) for a removal action, within 3 years after completion of the removal action, except that such cost recovery action must be brought within 6 years after a determination to grant a waiver under section 104(cXlXC) for continued re- sponse action; and (B) for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action, except that, if the remedial action is initiated within 3 years after the completion of the removal action, costs in- curred in the removal action may be recovered in the cost recovery action brought under this subparagraph. In any such action described in this subsection, the court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or ac- tions to recover further response costs or damages. A subsequent action or actions under section 107 for further response costs at the vessel or facility may be maintained at any time during the response action, but must be commenced no later than 3 years after the date of completion of all response action. Except as otherwise provided in this paragraph, an action may be com- menced under section 107 for recovery of costs at any time after such costs have been incurred. (3) Contribution. — No action for contribution for any re- sponse costs or damages may be commenced more than 3 years after — (A) the date of judgment in any action under this Act for recovery of such costs or damages, or (B) the date of an administrative order under section 122(g) (relating to de minimis settlements) or 122(h) (relat- ing to cost recovery settlements) or entry of a judicially ap- proved settlement with respect to such costs or damages. (k) Subrogation.— No action based on rights subrogated pur- suant to this section by reason of payment of a claim may be commenced under this title more than 3 years after the date of payment of such claim. (5) Actions to recover indemnification payments. — Not- withstanding any other provision of this subsection, where a payment pursuant to an indemnification agreement with a re- sponse action contractor is made under section 119, an action under section 107 for recovery of such indemnification payment from a potentially responsible party may be brought at any time before the expiration of 3 years from the date on which such payment is made. (6) Minors and incompetents. — The time limitations con- tained herein shall not begin to run — (A) against a minor until the earlier of the date when such minor reaches 18 years of age or the date on which a legal representative is duly appointed for such minor, or (B) against an incompetent person until the earlier of the date on which such incompetent's incompetency ends or the date on which a legal representative is duly appointed for such incompetent. (h) Timing of Review.— No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 of the 246 68 United States Code (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 121 (relating to cleanup standards) to review any chal- lenges to removal or remedial action selected under section 104, or to review any order issued under section 106(a), in any action except one of the following: (1) An action under section 107 to recover response costs or damages or for contribution. (2) An action to enforce an order issued under section 106(a) or to recover a penalty for violation of such order. (3) An action for reimbursement under section 106(bX2). (4) An action under section 310 (relating to citizens suits) al- leging that the removal or remedial action taken under section 104 or secured under section 106 was in violation of any re- quirement of this Act. Such an action may not be brought with regard to a removal where a remedial action is to be undertak- en at the site. (5) An action under section 106 in which the United States has moved to compel a remedial action. (i) Intervention. — In any action commenced under this Act or under the Solid Waste Disposal Act in a court of the United States, any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situ- ated that the disposition of the action may, as a practical matter, impair or impede the person 's ability to protect that interest, unless the President or the State shows that the person's interest is ade- quately represented by existing parties. (j) Judicial Review.— (1) Limitation. — In any judicial action under this Act, judi- cial review of any issues concerning the adequacy of any re- sponse action taken or ordered by the President shall be limited to the administrative record. Otherwise applicable principles of administrative law shall govern whether any supplemental ma- terials may be considered by the court. (2) Standard. — In considering objections raised in any judi- cial action under this Act, the court shall uphold the Presi- dent 's decision in selecting the response action unless the object- ing party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law. (3) Remedy. — If the court finds that the selection of the re- sponse action was arbitrary and capricious or otherwise not in accordance with law, the court shall award (A) only the re- sponse costs or damages that are not inconsistent with the na- tional contingency plan, and (B) such other relief as is consist- ent with the National Contingency Plan. (4) Procedural errors. — In reviewing alleged procedural errors, the court may disallow costs or damages only if the errors were so serious and related to matters of such central rel- evance to the action that the action would have been signifi- cantly changed had such errors not been made. (k) Administrative Record and Participation Procedures.^ (1) Administrative record. — The President shall establish an administrative record upon which the President shall base 247 69 the selection of a response action. The administrative record shall be available to the public at or near the facility at issue. The President also may place duplicates of the administrative record at any other location. (2) Participation procedures. — (A) Removal action.— The President shall promulgate regulations in accordance with chapter 5 of title 5 of the United States Code establishing procedures for the appro- priate participation of interested persons in the develop- ment of the administrative record on which the President will base the selection of removal actions and on which ju- dicial review of removal actions will be based. (B) Remedial action.— The President shall provide for the participation of interested persons, including potential- ly responsible parties, in the development of the adminis- trative record on which the President will base the selection of remedial actions and on which judicial review of reme- dial actions will be based. The procedures developed under this subparagraph shall include, at a minimum, each of the following: (i) Notice to potentially affected persons and the public, which shall be accompanied by a brief analysis of the plan and alternative plans that were considered. (ii) A reasonable opportunity to comment and provide information regarding the plan. (Hi) An opportunity for a public meeting in the af- fected area, in accordance with section 117(aX2) (relat- ing to public participation). (iv) A response to each of the significant comments, criticisms, and new data submitted in written or oral presentations. (v) A statement of the basis and purpose of the select- ed action. For purposes of this subparagraph, the administrative record shall include all items developed and received under this subparagraph and all items described in the second sentence of section 117(d). The President shall promulgate regulations in accordance with chapter 5 of title 5 of the United States Code to carry out the requirements of this subparagraph. (C) Interim record. — Until such regulations under sub- paragraphs (A) and (B) are promulgated, the administra- tive record shall consist of all items developed and received pursuant to current procedures for selection of the response action, including procedures for the participation of inter- ested parties and the public. The development of an admin- istrative record and the selection of response action under this Act shall not include an adjudicatory hearing. (D) Potentially responsible parties. — The President shall make reasonable efforts to identify and notify poten- tially responsible parties as early as possible before selec- tion of a response action. Nothing in this paragraph shall be construed to be a defense to liability. 248 70 G) Notice of Actions.— Whenever any action is brought under this Act in a court of the United States by a plaintiff other than the United States, the plaintiff shall provide a copy of the complaint to the Attorney General of the United States and to the Administrator of the Environmental Protection Agency. RELATIONSHIP TO OTHER LAW Sec. 114. (a) Nothing in this Act shall be construed or interpreted as preempting any State from imposing any additional liability or requirements vsdth respect to the release of hazardous substances within such State. (b) Any person who receives compensation for removal costs or dam^es or claims pursuant to this Act shall be precluded from re- covering compensation for the same removal costs or damages or claims pursuant to any other State or Federal law. Any person who receives compensation for removal costs or damages or claims pur- suant to any other Federal or State law shall be precluded from receiving compensation for the same removal costs or damages or claims as provided in this Act. [(c) Except as provided in this Act, no person may be required to contribute to any fund, the purpose of which is to pay compensa- tion for claims for any costs of response or damages or claims which may be compensated under this title. Nothing in this section shall preclude any State from using general revenues for such a fund, or from imposing a tax or fee upon any person or upon any substance in order to finance the purchase or prepositioning of haz- ardous substance response equipment or other preparations for the response to a release of hazardous substances which affects such State.] (c) Recycled Oil.— (1) Service station dealers, etc.— No person (including the United States or any State) may recover, under the authority of subsection (aXS) or (a)(4) of section 107, from a service station dealer for any response costs or damages resulting from a re- lease or threatened release of recycled oil, or use the authority of section 106 against a service station dealer other than a person described in subsection (aXD 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 SOU of the Solid Waste Disposal Act and other applicable authorities. Nothing in this paragraph shall affect or modify in any way the obligations or liability of any person under any other provi- sion of State or Federal law, including common law, for dam- ages, injury, or loss resulting from a release or threatened re- lease of any hazardous substance or for removal or remedial action or the costs of removal or remedial action. (2) Presumption. — Solely for the purposes of this subsection, a service station dealer may presume that a small quantity of used oil is not mixed with other hazardous substances if it — 249 71 (A) has been removed from the engine of a light duty motor vehicle or household appliances by the owner of such vehicle or appliances, and (B) is presented, by such owner, to the dealer for collec- tion, accumulation, and delivery to an oil recycling facility. (3) Definition. — For purposes of this subsection, the terms ''used oil" and ''recycled oil" have the same meanings cls set forth in sections 100MS6) and 1004(37) of the Solid Waste Dis- posal Act and regulations promulgated pursuant to that Act. (4) Effective date. — The effective date of paragraphs (1) and (2) of this subsection shall be the effective date of regulations or standards promulgated under section 3014 of the Solid Waste Disposal Act that include, among other provisions, a require- ment to conduct corrective action to respond to any releases of recycled oil under subtitle C or subtitle I of such Act. (d) Except as provided in this title, no owner or operator of a vessel or facility who establishes and maintains evidence of finan- cial responsibility in accordance with this title shall be required under any State or local law, rule, or regulation to establish or maintain any other evidence of financial responsibility in connec- tion with liability for the release of a hazardous substance from such vessel or facility. Evidence of compliance with the financial responsibility requirements of this title shall be accepted by a State in lieu of any other requirement of financial responsibility imposed by such State in connection with liability for the release of a haz- ardous substance from such vessel or facility. AUTHORITY TO DELEGATE, ISSUE REGULATIONS Sec. 115. The President is authorized to delegate and assign any duties or powers imposed upon or assigned to him and to promul- gate any regulations necessary to carry out the provisions of this title. SEC. 116. SCHEDULES. (a) Assessment and Listing of Facilities. — It shall be a goal of this Act that, to the maximum extent practicable — (1) not later than January 1, 1988, the President shall com- plete preliminary assessments of all facilities that are contained (as of the date of enactment of the Superfund Amendments and Reauthorization Act of 1986) on the Comprehensive Environ- mental Response, Compensation, and Liability Information System (CERCLIS) including in each assessment a statement as to whether a site inspection is necessary and by whom it should be carried out; and (2) not later than January 1, 1989, the President shall assure the completion of site inspections at all facilities for which the President has stated a site inspection is necessary pursuant to paragraph (1). (b) Evaluation.— Within 4 years after enactment of the Super- fund Amendments and Reauthorization Act of 1986, each facility listed (as of the date of such enactment) in the CERCLIS shall be evaluated if the President determines that such evaluation is war- ranted on the basis of a site inspection or preliminary assessment. The evaluation shall be in accordance with the criteria established 250 72 in section 105 under the National Contingency Plan for determining priorities among release for inclusion on the National Priorities List. In the case of a facility listed in the CERCLIS after the enact- ment of the Superfund Amendments and Reauthorization Act of 1986, the facility shall be evaluated within 4 years after the date of such listing if the President determines that such evaluation is war- ranted on the basis of a site inspection or preliminary assessment. (c) Explanations.— If any of the goals established by subsection (a) or (b) are not achieved, the President shall publish an explana- tion of why such action could not be completed by the specified date. (d) Commencement of RI/FS.—The President shall assure that remedial investigations and feasibility studies (RI/FS) are com- nienced for facilities listed on the National Priorities List, in addi- tion to those commenced prior to the date of enactment of the Super- fund Amendments and Reauthorization Act of 1986, in accordance with the following schedule: (1) not fewer than 275 by the date 36 months after the date of enactment of the Superfund Amendments and Reauthorization Act of 1986, and (2) if the requirement of paragraph (1) is not met, not fewer than an additional 175 by the date 4 years after such date of enactment, an additional 200 by the date 5 years after such date of enactment, and a total of 650 by the date 5 years after such date of enactment. (e) Commencement of Remedial Action.— The President shall assure that substantial and continuous physical on-site remedial action commences at facilities on the National Priorities List, in ad- dition to those facilities on which remedial action has commenced prior to the date of enactment of the Superfund Amendments and Reauthorization Act of 1986, at a rate not fewer than: (1) 175 facilities during the first 36-month period after enact- ment of this subsection; and (2) 200 additional facilities during the following 24 months after such 36-month period. SEC. 117. PUBLIC PARTICIPATION. (a) Proposed Plan.— Before adoption of any plan for remedial action to be undertaken by the President, by a State, or by any other person, under section 104, 106, 120, or 122, the President or State, as appropriate, shall take both of the following actions: (1) Publish a notice and brief analysis of the proposed plan and make such plan available to the public. (2) Provide a reasonable opportunity for submission of written and oral comments and an opportunity for a public meeting at or near the facility at issue regarding the proposed plan and re- garding any proposed findings under section 121(dX4) (relating to cleanup standards). The President or the State shall keep a transcript of the meeting and make such transcript available to the public. The notice and analysis published under paragraph (1) shall in- clude sufficient information as may be necessary to provide a rea- sonable explanation of the proposed plan and alternative proposals considered. 251 73 (b) Final Plan. — Notice of the final remedial action plan adopted shall be published and the plan shall be made available to the public before commencement of any remedial action. Such final plan shall be accompanied by a discussion of any significant changes (and the reasons for such changes) in the proposed plan and a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations under subsec- tion (a). (c) Explanation of Differences. — After adoption of a final re- medial action plan — (1) if any remedial action is taken, (2) if any enforcement action under section 106 is taken, or (3) if any settlement or consent decree under section 106 or section 122 is entered into, and if such action, settlement, or decree differs in any significant respects from the final plan, the President or the State shall publish an explanation of the significant differences and the reasons such changes were made. (d) Publication. — For the purposes of this section, publication shall include, at a minimum, publication in a major local newspa- per of general circulation. In addition, each item developed, re- ceived, published, or made available to the public under this section shall be available for public inspection and copying at or near the facility at issue. (e) Grants for Technical Assistance. — (V Authority. — Subject to such amounts as are provided in appropriations Acts and in accordance with rules promulgated by the President, the President may make grants available to any group of individuals which may be affected by a release or threatened release at any facility which is listed on the Nation- al Priorities List under the National Contingency Plan. Such grants may be used to obtain technical assistance in interpret- ing information with regard to the nature of the hazard, reme- dial investigation and feasibility study, record of decision, re- medial design, selection and construction of remedial action, operation and maintenance, or removal action at such facility. (2) Amount. — The amount of any grant under this subsection may not exceed $50,000 for a single grant recipient. The Presi- dent may waive the $50,000 limitation in any case where such waiver is necessary to carry out the purposes of this subsection. Each grant recipient shall be required, as a condition of the grant, to contribute at least 20 percent of the total of costs of the technical assistance for which such grant is made. The President may waive the 20 percent contribution requirement if the grant recipient demonstrates financial need and such waiver is necessary to facilitate public participation in the selec- tion of remedial action at the facility. Not more than one grant may be made under this subsection with respect to a single fa- cility, but the grant may be renewed to facilitate public partici- pation at all stages of remedial action. SEC. US. HIGH PRIORITY FOR DRINKING WATER SUPPLIES. For purposes of taking action under section 104 or 106 and listing facilities on the National Priorities List, the President shall give a 252 74 high priority to facilities where the release of hazardous substances or pollutants or contaminants has resulted in the closing of drink- ing water wells or has contaminated a principal drinking water supply. SEC. 119. RESPONSE ACTION CONTRACTORS. (a) Liability of Response Action Contractors.— (1) Response action contractors.— A person who is a re- sponse action contractor with respect to any release or threat- ened release of a hazardous substance or pollutant or contami- nant from a vessel or facility shall not be liable under this title or under any other Federal law to any person for injuries, costs, damages, expenses, or other liability (including but not limited to claims for indemnification or contribution and claims by third parties for death, personal injury, illness or loss of or damage to property or economic loss) which results from such release or threatened release. (2) Negligence, etc.— Paragraph (1) shall not apply in the case of a release that is caused by conduct of the response action contractor which is negligent, grossly negligent, or which consti- tutes intentional misconduct. (3) Effect on warranties; employer liability.— Nothing in this subsection shall affect the liability of any person under any warranty under Federal, State, or common law. Nothing in this subsection shall affect the liability of an employer who is a response action contractor to any employee of such employer under any provision of law, including any provision of any law relating to worker's compensation. (4) Governmental employees.— A state employee or an em- ployee of a political subdivision who provides services relating to response action while acting within the scope of his authority as a governmental employee shall have the same exemption from liability (subject to the other provisions of this section) as is provided to the response action contractor under this section. (b) Savings Provisions.— (1) Liability of other persons.— The defense provided by section 107(b)(3) shall not be available to any potentially respon- sible party with respect to any costs or damages caused by any act or omission of a response action contractor. Except as pro- vided in subsection (a)(4) and the preceding sentence, nothing in this section shall affect the liability under this Act or under any other Federal or State law of any person, other than a re- sponse action contractor. (2) Burden of plaintiff.— Nothing in this section shall affect the plaintiffs burden of establishing liability under this title. (c ) Indemnifica tion. — (1) In general.— The President may agree to hold harmless and indemnify any response action contractor meeting the re- quirements of this subsection against any liability (including the expenses of litigation or settlement) for negligence arising out of the contractor's performance in carrying out response action activities under this title, unless such liability was 253 75 caused by conduct of the contractor which was grossly negligent or which constituted intentional misconduct. (2) Applicability. — This subsection shall apply only with re- spect to a response action carried out under written agreement with — (A) the President; (B) any Federal agency; (C) a State or political subdivision which has entered into a contract or cooperative agreement in accordance with section 104(d)(V of this title; or (D) any potentially responsible party carrying out any agreement under section 122 (relating to settlements) or sec- tion 106 (relating to abatement). (3) Source of funding. — This subsection shall not be subject to section 1301 or 13^1 of title 31 of the United States Code or section 3732 of the Revised Statutes (41 U.S.C. 11) or to section 3 of the Superfund Amendments and Reauthorization Act of 1986. For purposes of section 111, amounts expended pursuant to this subsection for indemnification of any response action contractor (except with respect to federally owned or operated facilities) shall be considered governmental response costs in- curred pursuant to section 104- If sufficient funds are unavail- able in the Hazardous Substance Superfund established under subchapter A of chapter 98 of the Internal Revenue Code of 1954 lo make payments pursuant to such indemnification or if the Fund is repealed, there are authorized to be appropriated such amounts as may be necessary to make such payments. (4) Requirements. — An indemnification agreement may be provided under this subsection only if the President determines that each of the following requirements are met: (A) The liability covered by the indemnification agree- ment exceeds or is not covered by insurance available, at a fair and reasonable price, to the contractor at the time the contractor enters into the contract to provide response action, and adequate insurance to cover such liability is not generally available at the time the response action contract is entered into. (B) The response action contractor has made diligent ef- forts to obtain insurance coverage from non-Federal sources to cover such liability. (C) In the case of a response action contract covering more than one facility, the response action contractor agrees to continue to make such diligent efforts each time the con- tractor begins work under the contract at a new facility. (5) Li MIT A TIONS. — (A) Liability covered. — Indemnification under this sub- section shall apply only to response action contractor liabil- ity which results from a release of any hazardous substance or pollutant or contaminant if such release arises out of re- sponse action activities. (B) Deductibles and limits. — An indemnification agree- ment under this subsection shall include deductibles and shall place limits on the amount of indemnification to be made available. 254 (C) TIES.- 76 Contracts with potentially responsible par- (i) Decision to indemnify.— In deciding whether to enter into an indemnification agreement with a re- sponse action contractor carrying out a written contract or agreement with any potentially responsible party, the President shall determine an amount which the po- tentially responsible party is able to indemnify the con- tractor. The President may enter into such an indemni- fication agreement only if the President determines that such amount of indemnification is inadequate to cover any reasonable potential liability of the contrac- tor arising out of the contractor's negligence in per- forming the contract or agreement with such party. The President shall make the determinations in the preced- ing sentences (with respect to the amount and the ade- quacy of the amount) taking into account the total net assets and resources of potentially responsible parties with respect to the facility at the time of such determi- nations. (ii) Conditions.— The President may pay a claim under an indemnification agreement referred to in clause (i) for the amount determined under clause (i) only if the contractor has exhausted all administrative, judicial, and common law claims for indemnification CLgainst all potentially responsible parties participating in the clean-up of the facility with respect to the liabil- ity of the contractor arising out of the contractor's neg- ligence in performing the contract or agreement with such party. Such indemnification agreement shall re- quire such contractor to pay any deductible established under subparagraph (B) before the contractor may re- cover any amount from the potentially responsible party or under the indemnification agreement. (D) RCRA FACILITIES. — No owner or operator of a facility regulated under the Solid Waste Disposal Act may be in- demnified under this subsection with respect to such facili- ty- (E) Persons retained or hired.— A person retained or hired by a person described in subsection (eX2XB) shall be eligible for indemnification under this subsection only if the President specifically approves of the retaining or hiring of such person. (6) Cost recovery. — For purposes of section 107, amounts ex- pended pursuant to this subsection for indemnification of any person who is a response action contractor with respect to any release or threatened release shall be considered a cost of re- sponse incurred by the United States Government with respect to such release. (7) Regulations. — The President shall promulgate regula- tions for carrying out the provisions of this subsection. Before promulgation of the regulations, the President shall develop guidelines to carry out this section. Development of such guide- lines shall include reasonable opportunity for public comment. ^§5 77 (8) Study. — The Comptroller General shall conduct a study in the fiscal year ending September SO, 1989, on the application of this subsection, including whether indemnification agreements under this subsection are being used, the number of claims that have been filed under such agreements, and the need for this subsection. The Comptroller General shall report the findings of the study to Congress no later than September 30, 1989. (d) Exception. — The exemption provided under subsection (a) and the authority of the President to offer indemnification under subsec- tion (c) shall not apply to any person covered by the provisions of paragraph (1), (2), (3), or (4) of section 107(a) with respect to the re- lease or threatened release concerned if such person would be cov- ered by such provisions even if such person had not carried out any actions referred to in subsection (e) of this section. (e) Definitions. — For purposes of this section — (1) Response action contract.— The term "response action contract " means any written contract or agreement entered into by a response action contractor (as defined in paragraph (2XA) of this subsection) with — (A) the President; (B) any Federal agency; (C) a State or political subdivision which has entered into a contract or cooperative agreement in accordance with section 104(d)(1) of this Act; or (D) any potentially responsible party carrying out an agreement under section 106 or 122; to provide any remedial action under this Act at a facility listed on the National Priorities List, or any removal under this Act, with respect to any release or threatened release of a haz- ardous substance or pollutant or contaminant from the facility or to provide any evaluation, planning, engineering, surveying and mapping, design, construction, equipment, or any ancillary services thereto for such facility. (2) Response action contractor. — The term ''response action contractor'' means — (A) any — (i) person who enters into a response action contract with respect to any release or threatened release of a hazardous substance or pollutant or contaminant from a facility and is carrying out such contract; and (ii) person, public or nonprofit private entity, con- ducting a field demonstration pursuant to section 311(b); and (B) any person who is retained or hired by a person de- scribed in subparagraph (A) to provide any services relating to a response action. (3) Insurance. — The term ''insurance" means liability insur- ance which is fair and reasonably priced, as determined by the President, and which is made available at the time the contrac- tor enters into the response action contract to provide response action. (f) Competition. — Response action contractors and subcontractors for program management, construction management, architectural and engineering, surveying and mapping, and related services shall 256 78 be selected in accordance with title IX of the Federal Property and Administrative Services Act of 19^9. The Federal selection proce- dures shall apply to appropriate contracts negotiated by all Federal governmental agencies involved in carrying out this Act. Such proce- dures shall be followed by response action contractors and subcon- tractors. SEC. 120. FEDERAL FACILITIES. (a) Application of Act to Federal Government— (V In general. — Each department, agency, and instrumental- ity of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this Act in the same manner and to the same extent, both procedurally and substantively, as any nongovern- mental entity, including liability under section 107 of this Act. Nothing in this section shall be construed to affect the liability of any person or entity under sections 106 and 107. (2) Application of requirements to federal facilities. — All guidelines, rules, regulations, and criteria which are appli- cable to preliminary assessments carried out under this Act for facilities at which hazardous substances are located, applicable to evaluations of such facilities under the National Contingency Plan, applicable to inclusion on the National Priorities List, or applicable to remedial actions at such facilities shall also be applicable to facilities which are owned or operated by a de- partment, agency, or instrumentality of the United States in the same manner and to the extent as such guidelines, rules, regu- lations, and criteria are applicable to other facilities. No de- partment, agency, or instrumentality of the United States may adopt or utilize any such guidelines, rules, regulations, or crite- ria which are inconsistent with the guidelines, rules, regula- tions, and criteria established by the Administrator under this Act. (3) Exceptions. — This subsection shall not apply to the extent otherwise provided in this section with respect to applicable time periods. This subsection shall also not apply to any re- quirements relating to bonding, insurance, or financial respon- sibility. Nothing in this Act shall be construed to require a State to comply with section 10Mc)(3) in the case of a facility which is owned or operated by any department, agency, or in- strumentality of the United States. (4) State laws. — State laws concerning removal and remedi- al action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or op- erated by a department, agency, or instrumentality of the United States when such facilities are not included on the Na- tional Priorities List. The preceding sentence shall not apply to the extent a State law would apply any standard or require- ment to such facilities which is more stringent than the stand- ards and requirements applicable to facilities which are not owned or operated by any such department, agency, or instru- mentality. (b) Notice. — Each department, agency, and instrumentality of the United States shall add to the inventory of Federal agency hazard- 257 79 ous waste facilities required to be submitted under section SOI 6 of the Solid Waste Disposal Act (in addition to the information re- quired under section 3016(aX3) of such Act) information on contami- nation from each facility owned or operated by the department, agency, or instrumentality if such contamination affects contiguous or adjacent property owned by the department, agency, or instrumen- tality or by any other person, including a description of the monitor- ing data obtained. (c) Federal Agency Hazardous Waste Compliance Docket. — The Administrator shall establish a special Federal Agency Hazard- ous Waste Compliance Docket (hereinafter in this section referred to as the ^'docket' ) which shall contain each of the following: (1) All information submitted under section 3016 of the Solid Waste Disposal Act and subsection (b) of this section regarding any Federal facility and notice of each subsequent action taken under this Act with respect to the facility. (2) Information submitted by each department, agency, or in- strumentality of the United States under section 3005 or 3010 of such Act. (3) Information submitted by the department, agency, or in- strumentality under section 103 of this Act. The docket shall be available for public inspection at reasonable times. Six months after establishment of the docket and every 6 months thereafter, the Administrator shall publish in the Federal Register a list of the Federal facilities which have been included in the docket during the immediately preceding 6-month period. Such publication shall also indicate where in the appropriate regional office of the Environmental Protection Agency additional informa- tion may be obtained with respect to any facility on the docket. The Administrator shall establish a program to provide information to the public with respect to facilities which are included in the docket under this subsection. (d) Assessment and Evaluation.— Not later than 18 months after the enactment of the Superfund Amendments and Reauthor- ization Act of 1986, the Administrator shall take steps to assure that a preliminary assessment is conducted for each facility on the docket. Following such preliminary assessment, the Administrator shall, where appropriate — (1) evaluate such facilities in accordance with the criteria es- tablished in accordance with section 105 under the National Contingency Plan for determining priorities among releases; and (2) include such facilities on the National Priorities List maintained under such plan if the facility meets such criteria. Such criteria shall be applied in the same manner as the criteria are applied to facilities which are owned or operated by other per- sons. Evaluation and listing under this subsection shall be complet- ed not later than 30 months after such date of enactment. Upon the receipt of a petition from the Governor of any State, the Administra- tor shall make such an evaluation of any facility included in the docket. (e) Required Action by Department. — (1) RIFS. — Not later than 6 months after the inclusion of any facility on the National Priorities List, the department, agency. 258 80 or instrumentality which owns or operates such facility shall, in consultation with the Administrator and appropriate State authorities, commence a remedial investigation and feasibility study for such facility. In the case of any facility which is listed on such list before the date of the enactment of this section, the department, agency, or instrumentality which owns or operates such facility shall, in consultation with the Administrator and appropriate State authorities, commence such an investigation and study for such facility within one year after such date of enactment The Administrator and appropriate State authori- ties shall publish a timetable and deadlines for expeditious completion of such investigation and study. (2) Commencement of remedial action; interagency AGREEMENT. — The Administrator shall review the results of each investigation and study conducted as provided in para- graph (1). Within 180 days thereafter, the head of the depart- ment, agency, or instrumentality concerned shall enter into an interagency agreement with the Administrator for the expedi- tious completion by such department, agency, or instrumentality of all necessary remedial action at such facility. Substantial continuous physical onsite remedial action shall be commenced at each facility not later than 15 months after completion of the investigation and study. All such interagency agreements, in- cluding review of alternative remedial action plans and selec- tion of remedial action, shall comply with the public participa- tion requirements of section 117. (3) Completion of remedial actions. — Remedial actions at facilities subject to interagency agreements under this section shall be completed as expeditiously as practicable. Each agency shall include in its annual budget submissions to the Congress a review of alternative agency funding which could be used to provide for the costs of remedial action. The budget submission shall also include a statement of the hazard posed by the facili- ty to human health, welfare, and the environment and identify the specific consequences of failure to begin and complete reme- dial action. (4) Contents of agreement. — Each interagency agreement under this subsection shall include, but shall not be limited to, each of the following: (A) A review of alternative remedial actions and selection of a remedial action by the head of the relevant depart- ment, agency, or instrumentality and the Administrator or, if unable to reach agreement on selection of a remedial action, selection by the Administrator. (B) A schedule for the completion of each such remedial action. (C) Arrangements for long-term operation and mainte- nance of the facility. (5) Annual report. — Each department, agency, or instrumen- tality responsible for compliance with this section shall furnish an annual report to the Congress concerning its progress in im- plementing the requirements of this section. Such reports shall include, but shall not be limited to, each of the following items: 259 81 (A) A report on the progress in reaching interagency agreements under this section. (B) The specific cost estimates and budgetary proposals involved in each interagency agreement. (C) A brief summary of the public comments regarding each proposed interagency agreement. (D) A description of the instances in which no agreement was reached. (E) A report on progress in conducting investigations and studies under paragraph (1). (F) A report on progress in conducting remedial actions. (G) A report on progress in conducting remedial action at facilities which are not listed on the National Priorities List. With respect to instances in which no agreement was reached within the required time period, the department, agency, or in- strumentality filing the report under this paragraph shall in- clude in such report an explanation of the reasons why no agreement was reached. The annual report required by this paragraph shall also contain a detailed description on a State- by-State basis of the status of each facility subject to this sec- tion, including a description of the hazard presented by each fa- cility, plans and schedules for initiating and completing re- sponse action, enforcement status (where appropriate), and an explanation of any postponements or failure to complete re- sponse action. Such reports shall also be submitted to the affect- ed States. (6) Settlements with other parties. — If the Administrator, in consultation with the head of the relevant department, agency, or instrumentality of the United States, determines that remedial investigations and feasibility studies or remedial action will be done properly at the Federal facility by another potentially responsible party within the deadlines provided in paragraphs (1), (2), and (3) of this subsection, the Administrator may enter into an agreement with such party under section 122 (relating to settlements). Following approval by the Attorney General of any such agreement relating to a remedial action, the agreement shall be entered in the appropriate United States district court as a consent decree under section 106 of this Act. (f) State and Local Participation— The Administrator and each department, agency, or instrumentality responsible for compli- ance with this section shall afford to relevant State and local offi- cials the opportunity to participate in the planning and selection of the remedial action, including but not limited to the review of all applicable data as it becomes available and the development of studies, reports, and action plans. In the case of State officials, the opportunity to participate shall be provided in accordance with sec- tion 121. (g) Transfer of Authorities.— Except for authorities which are delegated by the Administrator to an officer or employee of the En- vironmental Protection Agency, no authority vested in the Adminis- trator under this section may be transferred, by executive order of the President or otherwise, to any other officer or employee of the United States or to any other person. 260 82 ) (h) Property Transferred by Federal Agencies. — (1) Notice. — After the last day of the 6-month period begin- ning on the effective date of regulations under paragraph (2) of this subsection, whenever any department, agency, or instrumen- tality of the United States enters into any contract for the sale or other transfer of real property which is owned by the United States and on which any hazardous substance was stored for one year or more, known to have been released, or disposed of the head of such department, agency, or instrumentality shall include in such contract notice of the type and quantity of such hazardous substance and notice of the time at which such stor- age, release, or disposal took place, to the extent such informa- tion is available on the basis of a complete search of agency files. (2) Form of notice; regulations. — Notice under this subsec- tion shall be provided in such form and manner as may be pro- vided in regulations promulgated by the Administrator. As promptly as practicable after the enactment of this subsection but not later than 18 months after the date of such enactment, and after consultation with the Administrator of the General Services Administration, the Administrator shall promulgate regulations regarding the notice required to be provided under this subsection. (3) Contents of certain deeds. — After the last day of the 6- month period beginning on the effective date of regulations under paragraph (2) of this subsection, in the case of any real property owned by the United States on which any hazardous substance was stored for one year or more, known to have been released, or disposed of each deed entered into for the transfer of such property by the United States to any other person or entity shall contain — (A) to the extent such information is available on the basis of a complete search of agency files — (i) a notice of the type and quantity of such hazard- ous substances, (ii) notice of the time at which such storage, release, or disposal took place, and (Hi) a description of the remedial action taken, if any, and (B) a covenant warranting that — (i) all remedial action necessary to protect human health and the environment with respect to any such substance remaining on the property has been taken before the date of such transfer, and (ii) any additional remedial action found to be neces- sary after the date of such transfer shall be conducted by the United States. The requirements of subparagraph (B) shall not apply in any case in which the person or entity to whom the property is transferred is a potentially responsible party with respect to such real property. (i) Obligations Under Solid Waste Disposal Act. — Nothing in this section shall affect or impair the obligation of any department, agency, or instrumentality of the United States to comply with any 261 83 requirement of the Solid Waste Disposal Act (including corrective action requirements), (j) National Security.— (1) Site specific presidential orders.— The President may issue such orders regarding response actions at any specified site or facility of the Department of Energy or the Department of Defense as may be necessary to protect the national security interests of the United States at that site or facility. Such orders may include, where necessary to protect such interests, an exemption from any requirement contained in this title or under title III of the Superfund Amendments and Reauthorization Act of 1986 with respect to the site or facility concerned. The President shall notify the Congress within 30 days of the issu- ance of an order under this paragraph providing for any such exemption. Such notification shall include a statement of the reasons for the granting of the exemption. An exemption under this paragraph shall be for a specified period which may not exceed one year. Additional exemptions may be granted, each upon the President's issuance of a new order under this para- graph for the site or facility concerned. Each such additional exemption shall be for a specified period which may not exceed one year. It is the intention of the Congress that whenever an exemption is issued under this paragraph the response action shall proceed as expeditiously as practicable. The Congress shall be notified periodically of the progress of any response action with respect to which an exemption has been issued under this paragraph. No exemption shall be granted under this paragraph due to lack of appropriation unless the Presi- dent shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. (2) Classified information. — Notwithstanding any other provision of law, all requirements of the Atomic Energy Act and all Executive orders concerning the handling of restricted data and national security information, including ''need to know" requirements, shall be applicable to any grant of access to classified information under the provisions of this Act or under title III of the Superfund Amendments and Reauthoriza- tion Act of 1986. SEC. 121. CLEANUP STANDARDS. (a) Selection of Remedial Action— The President shall select appropriate remedial actions determined to be necessary to be car- ried out under section 104 or secured under section 106 which are in accordance with this section and, to the extent practicable, the na- tional contingency plan, and which provide for cost-effective re- sponse. In evaluating the cost effectiveness of proposed alternative remedial actions, the President shall take into account the total short- and long-term costs of such actions, including the costs of op- eration and maintenance for the entire period during which such activities will be required. (b) General Rules. — (1) Remedial actions in which treatmen* which permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, and contaminants 262 84 is a principal element, are to be preferred over remedial actions not involving such treatment The offsite transport and disposal of haz- ardous substances or contaminated materials without such treat- ment should be the least favored alternative remedial action where practicable treatment technologies are available. The President shall conduct an assessment of permanent solutions and alternative treatment technologies or resource recovery technologies that, in whole or in part, will result in a permanent and significant de- crease in the toxicity, mobility, or volume of the hazardous sub- stance, pollutant, or contaminant. In making such assessment, the President shall specifically address the long-term effectiveness of various alternatives. In assessing alternative remedial actions, the President shall, at a minimum, take into account: (A) the long-term uncertainties associated with land disposal; (B) the goals, objectives, and requirements of the Solid Waste Disposal Act; (C) the persistence, toxicity, mobility, and propensity to bioac- cumulate of such hazardous substances and their constituents; (D) short- and long-term potential for adverse health effects from human exposure; (E) long-term maintenance costs; (F) the potential for future remedial action costs if the alter- native remedial action in question were to fail; and (G) the potential threat to human health and the environ- ment associated with excavation, transportation, and redispo- sal, or containment. The President shall select a remedial action that is protective of human health and the environment, that is cost effective, and that utilizes permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable. If the President selects a remedial action not appropriate for a pref- erence under this subsection, the President shall publish an expla- nation as to why a remedial action involving such reductions was not selected. (2) The President may select an alternative remedial action meet- ing the objectives of this subsection whether or not such action has been achieved in practice at any other facility or site that has simi- lar characteristics. In making such a selection, the President may take into account the degree of support for such remedial action by parties interested in such site. (c) Review. — If the President selects a remedial action that re- sults in any hazardous substances, pollutants, or contaminants re- maining at the site, the President shall review such remedial action no less often than each 5 years after the initiation of such remedial action to assure that human health and the environment are being protected by the remedial action being implemented. In addition, if upon such review it is the judgment of the President that action is appropriate at such site in accordance with section 104 or 106, the President shall take or require such action. The President shall report to the Congress a list of facilities for which such review is required, the results of all such reviews, and any actions taken as a result of such reviews. (d) Degree of Cleanup. — (1) Remedial actions selected under this section or otherwise required or agreed to by the President m under this Act shall attain a degree of cleanup of hazardous sub- stances, pollutants, and contaminants released into the environment and of control of further release at a minimum which assures pro- tection of human health and the environment. Such remedial ac- tions shall be relevant and appropriate under the circumstances pre- sented by the release or threatened release of such substance, pollut- ant, or contaminant. (2XA) With respect to any hazardous substance, pollutant or con- taminant that will remain onsite, if— (i) any standard, requirement, criteria, or limitation under any Federal environmental law, including, but not limited to, the Toxic Substances Control Act, the Safe Drinking Water Act, the Clean Air Act, the Clean Water Act, the Marine Protection, Research and Sanctuaries Act, or the Solid Waste Disposal Act; or (ii) any promulgated standard, requirement, criteria, or limi- tation under a State environmental or facility siting law that is more stringent than any Federal standard, requirement, crite- ria, or limitation, including each such State standard, require- ment, criteria, or limitation contained in a program approved, authorized or delegated by the Administrator under a statute cited in subparagraph (A), and that has been identified to the President by the State in a timely manner, is legally applicable to the hazardous substance or pollutant or con- taminant concerned or is relevant and appropriate under the cir- cumstances of the release or threatened release of such hazardous substance or pollutant or contaminant, the remedial action selected under section 104 or secured under section 106 shall require, at the completion of the remedial action, a level or standard of control for such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard, requirement, criteria, or limitation. Such remedial action shall require a level or standard of control which at least attains Maximum Contaminant Level Goals established under the Safe Drinking Water Act and water quality criteria established under section 304 or 303 of the Clean Water Act, where such goals or crite- ria are relevant and appropriate under the circumstances of the re- lease or threatened release. (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 al- ternate concentration limits to those otherwise applicable for haz- ardous constituents in groundwater under subparagraph (A) may not be used to establish applicable standards under this paragraph if the process assumes a point of human exposure beyond the bound- ary of the facility, as defined at the conclusion of the remedial in- vestigation and feasibility study, except where — (I) there are known and projected points of entry of such groundwater into surface water; and 264 (II) on the basis of measurements or projections, there is or will be no statistically significant increase of such constituents from such groundwater in such surface water at the point of entry or at any point where there is reason to believe accumula- tion of constituents may occur downstream; and (III) the remedial action includes enforceable measures that will preclude human exposure to the contaminated groundwater at any point between the facility boundary and all known and projected points of entry of such groundwater into surface water then the assumed point of human exposure may be at such known and projected points of entry. (CXi) Clause (ii) of this subparagraph shall be applicable only in cases where, due to the President's selection, in compliance with subsection (bXV, of a proposed remedial action which does not per- manently and significantly reduce the volume, toxicity, or mobility of hazardous substances, pollutants, or contaminants, the proposed disposition of waste generated by or associated with the remedial action selected by the President is land disposal in a State referred to in clause (ii). (ii) Except as provided in clauses (Hi) and (iv), a State standard, requirement, criteria, or limitation (including any State siting standard or requirement) which could effectively result in the state- wide prohibition of land disposal of hazardous substances, pollut- ants, or contaminants shall not apply. (Hi) Any State standard, requirement, criteria, or limitation re- ferred to in clause (ii) shall apply where each of the following condi- tions is met: (I) The State standard, requirement, criteria, or limitation is of general applicability and was adopted by formal means. (II) The State standard, requirement, criteria, or limitation was adopted on the basis of hydrologic, geologic, or other rele- vant considerations and was not adopted for the purpose of pre- cluding onsite remedial actions or other land disposal for rea- sons unrelated to protection of human health and the environ- ment. (III) The State arranges for, and assures payment of the incre- mental costs of utilizing, a facility for disposition of the haz- ardous substances, pollutants, or contaminants concerned. (iv) Where the remedial action selected by the President does not conform to a State standard and the State has initiated a law suit against the Environmental Protection Agency prior to May 1, 1986, to seek to have the remedial action conform to such standard, the President shall conform the remedial action to the State standard. The State shall assure the availability of an offsite facility for such remedial action. . , • (3) In the case of any removal or remedial action involving the transfer of any hazardous substance or pollutant or contaminant offsite, such hazardous substance or pollutant or contaminant shall only be transferred to a facility which is operating in compliance with section, SOOk and 3005 of the Solid Waste Disposal Act (or where applicable, in compliance with the Toxic Substances Control Act or other applicable Federal law) and all applicable State re- quirements. Such substance or pollutant or contaminant may be 265 87 transferred to a land disposal facility only if the President deter- mines that both of the following requirements are met: (A) The unit to which the hazardous substance or pollutant or contaminant is transferred is not releasing any hazardous waste, or constituent thereof into the groundwater or surface water or soil. (B) All such releases from other units at the facility are being controlled by a corrective action program approved by the Ad- ministrator under subtitle C of the Solid Waste Disposal Act. The President shall notify the owner or operator of such facility of determinations under this paragraph. (4) The President may select a remedial action meeting the re- quirements of paragraph (1) that does not attain a level or standard of control at least equivalent to a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation as re- quired by paragraph (2) (including subparagraph (B) thereof), if the President finds that — (A) the remedial action selected is only part of a total remedi- al action that will attain such level or standard of control when completed; (B) compliance with such requirement at that facility will result in greater risk to human health and the environment than alternative options; (C) compliance with such requirements is technically imprac- ticable from an engineering perspective; (D) the remedial action selected will attain a standard of per- formance that is equivalent to that required under the other- wise applicable standard, requirement, criteria, or limitation, through use of another method or approach; (E) with respect to a State standard, requirement, criteria, or limitation, the State has not consistently applied (or demon- strated the intention to consistently apply) the standard, re- quirement, criteria, or limitation in similar circumstances at other remedial actions within the State; or (F) in the case of a remedial action to be undertaken solely under section 104 using the Fund, selection of a remedial action that attains such level or standard of control will not provide a balance between the need for protection of public health and welfare and the environment at the facility under consider- ation, and the availability of amounts from the Fund to re- spond to other sites which present or may present a threat to public health or welfare or the environment, taking into consid- eration the relative immediacy of such threats. The President shall publish such findings, together with an expla- nation and appropriate documentation. (e) Permits and Enforcement. — (1) No Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is se- lected and carried out in compliance with this section. (2) A State may enforce any Federal or State standard, require- ment, criteria, or limitation to which the remedial action is re- quired to conform under this Act in the United States district court for the district in which the facility is located. Any consent decree shall require the parties to attempt expeditiously to resolve disagree- 266 88 merits concerning implementation of the remedial action informally with the appropriate Federal and State agencies. Where the parties agree, the consent decree may provide for administrative enforce- ment. Each consent decree shall also contain stipulated penalties for violations of the decree in an amount not to exceed $25,000 per day, which may be enforced by either the President or the State. Such stipulated penalties shall not be construed to impair or affect the authority of the court to order compliance with the specific terms of any such decree. (f) State Involvement. — (1) The President shall promulgate reg- ulations providing for substantial and meaningful involvement by each State in initiation, development, and selection of remedial ac- tions to be undertaken in that State. The regulations, at a mini- mum, shall include each of the following: (A) State involvement in decisions whether to perform a pre- liminary assessment and site inspection. (B) Allocation of responsibility for hazard ranking system scoring. (C) State concurrence in deleting sites from the National Pri- orities List. (D) State participation in the long-term planning process for all remedial sites within the State. (E) A reasonable opportunity for States to review and com- ment on each of the following: (i) The remedial investigation and feasibility study and all data and technical documents leading to its issuance. (ii) The planned remedial action identified in the remedi- al investigation and feasibility study. (Hi) The engineering design following selection of the final remedial action. (iv) Other technical data and reports relating to imple- mentation of the remedy. (v) Any proposed finding or decision by the President to exercise the authority of subsection (d)(4)' (F) Notice to the State of negotiations with potentially respon- sible parties regarding the scope of any response action at a fa- cility in the State and an opportunity to participate in such ne- gotiations and, subject to paragraph (2), be a party to any settle- ment. (G) Notice to the State and an opportunity to comment on the President's proposed plan for remedial action as well as on al- ternative plans under consideration. The President's proposed decision regarding the selection of remedial action shall be ac- companied by a response to the comments submitted by the State, including an explanation regarding any decision under subsection (dX4) on compliance with promulgated State stand- ards. A copy of such response shall also be provided to the State. (H) Prompt notice and explanation of each proposed action to the State in which the facility is located. Prior to the promulgation of such regulations, the President shall provide notice to the State of negotiations with potentially responsi- ble parties regarding the scope of any response action at a facility in 267 89 the State, and such State may participate in such negotiations and, subject to paragraph (2), any settlements. (2)(A) This paragraph shall apply to remedial actions secured under section 106. At least 20 days prior to the entering of any con- sent decree, if the President proposes to select a remedial action that does not attain a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation, under the authority of subsection (d)(4), the President shall provide an opportunity for the State to concur or not concur in such selection. If the State concurs, the State may become a signatory to the consent decree. (B) If the State does not concur in such selection, and the State desires to have the remedial action conform to such standard, re- quirement, criteria, or limitation, the State shall intervene in the action under section 106 before entry of the consent decree, to seek to have the remedial action so conform. Such intervention shall be a matter of right. The remedial action shall conform to such stand- ard, requirement, criteria, or limitation if the State establishes, on the administrative record, that the finding of the President was not supported by substantial evidence. If the court determines that the remedial action shall conform to such standard, requirement, crite- ria, or limitation, the remedial action shall be so modified and the State may become a signatory to the decree. If the court determines that the remedial action need not conform to such standard, re- quirement, criteria, or limitation, and the State pays or assures the payment of the additional costs attributable to meeting such stand- ard, requirement, criteria, or limitation, the remedial action shall be so modified and the State shall become a signatory to the decree. (C) The President may conclude settlement negotiations with po- tentially responsible parties without State concurrence. (3)(A) This paragraph shall apply to remedial actions at facilities owned or operated by a department, agency, or instrumentality of the United States. At least 30 days prior to the publication of the President's final remedial action plan, if the President proposes to select a remedial action that does not attain a legally applicable or relevant and appropriate standard, requirement, criteria, or limita- tion, under the authority of subsection (d)(4), the President shall provide an opportunity for the State to concur or not concur in such selection. If the State concurs, or does not act within 30 days, the remedial action may proceed. (B) If the State does not concur in such selection as provided in subparagraph (A), and desires to have the remedial action conform to such standard, requirement, criteria, or limitation, the State may maintain an action as follows: (i) If the President has notified the State of selection of such a remedial action, the State may bring an action within 30 days of such notification for the sole purpose of determining whether the finding of the President is supported by substantial evi- dence. Such action shall be brought in the United States dis- trict court for the district in which the facility is located. (ii) If the State establishes, on the administrative record, that the President's finding is not supported by substantial evidence, the remedial action shall be modified to conform to such stand- ard, requirement, criteria, or limitation. 268 90 (iW If the State fails to establish that the President's finding was not supported by substantial evidence and if the State pays, within 60 days of judgment, the additional costs attributable to meeting such standard, requirement, criteria, or limitation, the remedial action shall be selected to meet such standard, re- quirement, criteria, or limitation. If the State fails to pay within 60 days, the remedial action selected by the President shall proceed through completion. (C) Nothing in this section precludes, and the court shall not enjoin, the Federal agency from taking any remedial action unrelat- ed to or not inconsistent with such standard, requirement, criteria, or limitation. SEC. 122. SETTLEMENTS. (a) Authority To Enter Into Agreements. — The President, in his discretion, may enter into an agreement with any person (includ- ing the owner or operator of the facility from which a release or sub- stantial threat of release emanates, or any other potentially respon- sible person), to perform any response action (including any action described in section 104(b)) if the President determines that such action will be done properly by such person. Whenever practicable and in the public interest, as determined by the President, the Presi- dent shall act to facilitate agreements under this section that are in the public interest and consistent with the National Contingency Plan in order to expedite effective remedial actions and minimize litigation. If the President decides not to use the procedures in this section, the President shall notify in writing potentially responsible parties at the facility of such decision and the reasons why use of the procedures is inappropriate. A decision of the President to use or not to use the procedures in this section is not subject to judicial review. (b) Agreements With Potentially Responsible Parties. — (1) Mixed funding. — An agreement under this section may provide that the President will reimburse the parties to the agreement from the Fund, with interest, for certain costs of ac- tions under the agreement that the parties have agreed to per- form but which the President has agreed to finance. In any case in which the President provides such reimbursement, the Presi- dent shall make all reasonable efforts to recover the amount of such reimbursement under section 107 or under other relevant authorities. (2) Reviewability. — The President's decisions regarding the availability of fund financing under this subsection shall not be subject to judicial review under subsection (d). (3) Retention of funds. — If, as part of any agreement, the President will be carrying out any action and the parties will be paying amounts to the President, the President may, notwith- standing any other provision of law, retain and use such amounts for purposes of carrying out the agreement. (4) Future obligation of fund. — In the case of a completed remedial action pursuant to an agreement described in para- graph (1), the Fund shall be subject to an obligation for subse- quent remedial actions at the same facility but only to the extent that such subsequent actions are necessary by reason of 269 91 the failure of the original remedial action. Such obligation shall be in a proportion equal to, but not exceeding, the propor- tion contributed by the Fund for the original remedial action. The Fund's obligation for such future remedial action may be met through Fund expenditures or through payment, following settlement or enforcement action, by parties who were not signa- tories to the original agreement. (c) Effect of Agreement. — (1) Liability. — Whenever the President has entered into an agreement under this section, the liability to the United States under this Act of each party to the agreement, including any future liability to the United States, arising from the release or threatened release that is the subject of the agreement shall be limited as provided in the agreement pursuant to a covenant not to sue in accordance with subsection (f). A covenant not to sue may provide that future liability to the United States of a settling potentially responsible party under the agreement may be limited to the same proportion as that established in the original settlement agreement Nothing in this section shall limit or otherwise affect the authority of any court to review in the consent decree process under subsection (d) any covenant not to sue contained in an agreement under this section. In deter- mining the extent to which the liability of parties to an agree- ment shall be limited pursuant to a covenant not to sue, the President shall be guided by the principle that a more complete covenant not to sue shall be provided for a more permanent remedy undertaken by such parties. (2) Actions against other persons.— If an agreement has been entered into under this section, the President may take any action under section 106 against any person who is not a party to the agreement, once the period for submitting a proposal under subsection (eX2XB) has expired. Nothing in this section shall be construed to affect either of the following: (A) The liability of any person under section 106 or 107 with respect to any costs or damages which are not includ- ed in the agreement. (B) The authority of the President to maintain an action under this Act against any person who is not a party to the agreement. (d) Enforcement.— (1) Cleanup agreements. — (A) Consent decree.— Whenever the President enters into an agreement under this section with any potentially responsible party with respect to remedial action under sec- tion 106, following approval of the agreement by the Attor- ney General, except as otherwise provided in the case of cer- tain administrative settlements referred to in subsection (g), the agreement shall be entered in the appropriate United States district court as a consent decree. The President need not make any finding regarding an imminent and substan- tial endangerment to the public health or the environment in connection with any such agreement or consent decree. (B) Effect. — The entry of any consent decree under this subsection shall not be construed to be an acknowledgment 270 92 '4 :--■ . » Section 204(b) of Public Law 99-499. 293 115 able out of such Trust Fund at such time, such claims shall, to the extent permitted under subsection (a), be paid in full in the order in which they were finally determined. [SEC. 223. ADMINISTRATIVE PROVISIONS. [(a) Method of Transfer. — The amounts appropriated by sec- tion 221(bXl) shall be transferred at least monthly from the general fund of the Treasury to the Response Trust Fund on the basis of estimates made by the Secretary of the amounts referred to in such section. Proper adjustments shall be made in the amount subse- quently transferred to the extent prior estimates were in excess of or less than the amounts required to be transferred. [(b) Management of Trust Fund. — [(1) Report. — The Secretary shall be the trustee of the Re- sponse Trust Fund, and shall report to the Congress for each fiscal year ending on or after September 30, 1981, on the finan- cial condition and the results of the operations of such Trust Fund during such fiscal year and on its expected condition and operations during the next 5 fiscal years. Such report shall be printed as a House document of the session^ of the Congress to which the report is made. [(2) Investment. — It shall be the duty of the Secretary to invest such portion of such Trust Fund as is not, in his judg- ment, required to meet current withdrawals. Such investments shall be in public debt securities with maturities suitable for the needs of such Trust Fund and bearing interest at rates de- termined by the Secretary, taking into consideration current market yields on outstanding marketable obligations of the United States of comparable maturities. The income on such investments shall be credited to and form a part of such Trust Fund. [(c) Authority To Borrow. — [(1) In general. — There are authorized to be appropriated to the Response Trust Fund, as repayable advances, such sums as may be necessary to carry out the purposes of such Trust Fund. [(2) Limitations on advances to response trust fund. — [(A) Aggregate advances. — The maximum aggregate amount of repayable advances to the Response Trust Fund which is outstanding at any one time shall not exceed an amount which the Secretary estimates will be equal to the sum of the amounts which will be appropriated or trans- ferred to such Trust Fund under paragraph (1)(A) of sec- tion 221(b) of this Act for the following 12 months, and [(B) Advances for payment of response costs.— No amount may be advanced after March 31, 1983, to the Re- sponse Trust Fund for the purpose of paying response costs described in section 111(a) (1), (2), or (4), unless such costs are incurred incident to any spill the effects of which the Secretary determines to be catastrophic. [(C) Advances for other costs. — The maximum aggre- gate amount advanced to the Response Trust Fund which is outstanding at any one time for the purpose of paying costs other than costs described in section 111(a) (1), (2), or 294 116 (4) shall not exceed one-third of the amount of the esti- mate made under subparagraph (A). [(D) Final repayment.— No advance shall be made to the Response Trust Fund after September 30, 1985, and all advances to such Fund shall be repaid on or before such date. [(3) Repayment of advances. — Advances made pursuant to this subsection shall be repaid, and interest on such advances shall be paid, to the general fund of the Treasury when the Secretary determines that moneys are available for such pur- poses in the Trust Fund to which the advance was made. Such interest shall be at rates computed in the same manner as pro- vided in subsection (b) and shall be compounded annually.] [Subtitle C— Post-Closure Tax and Trust Fund [SEC. 231. IMPOSITION OF TAX. (a) In General. — Chapter 38, as added by section 211, is amend- ed by adding at the end thereof the following new subchapter: ["Subchapter C — Tax on Hazardous Wastes ["Sec. 4681. Imposition of tax. ["Sec. 4682. Definitions and special rules. ["SEC. 4681. IMPOSITION OF TAX. ["(a) General Rule. — There is hereby imposed a tax on the re- ceipt of hazardous waste at a qualified hazardous waste disposal fa- cility. [''(b) Amount of Tax. — The amount of the tax imposed by subsec- tion (a) shall be equal to $2.13 per dry weight ton of hazardous waste. ["SEC. 4682. DEFINITIONS AND SPECIAL RULES. ["(a) Definitions.— For purposes of this subchapter— ["(1) Hazardous waste. — The term 'hazardous waste' means any waste — ["(A) having the characteristics identified under section 3001 of the Solid Waste Disposal Act, as in effect on the date of the enactment of this Act (other than waste the regulation of which under such Act has been suspended by Act of Congress on that date), or ["(B) subject to the reporting or recordkeeping require- ments of sections 3002 and 3004 of such Act, as so in effect. ["(2) Quaufied hazardous waste disposal faciuty.— The term 'qualified hazardous waste disposal facility' means any fa- cility which has received a permit or is accorded interim status under section 3005 of the Solid Waste Disposal Act. ["(b) Tax Imposed on Owner or Operator.— The tax imposed by section 4681 shall be imposed on the owner or operator of the quali- fied hazardous waste disposal facility. ["(c) Tax Not To Apply to Certain Wastes.— The tax imposed by section 4681 shall not apply to any hazardous waste which will not 295 117 remain at the qualified hazardous waste disposal facility after the facility is closed. ["(d) Applicabiuty of Section. — The tax imposed by section 4681 shall apply to the receipt of hazardous waste after September 30, 1983, except that if, as of September 30 of any subsequent calendar year, the unobligated balance of the Post-closure Liability Trust Fund exceeds $200,000,000, no tax shall be imposed under such sec- tion during the following calendar year.". [(b) Conforming Amendment. — The table of subchapters for chapter 38 is amended by adding at the end thereof the following new item: ["Subchapter C— Tax on Hazardous Wastes". [SEC. 232. POST-CLOSURE LIABILITY TRUST FUND. [(a) Creation of Trust Fund. — There is established in the Treas- ury of the United States a trust fund to be known as the "Post- closure Liability Trust Fund", consisting of such amounts as may be appropriated, credited, or transferred to such Trust Fund. [(b) Expenditures From Post-closure Liability Trust Fund. — Amounts in the Post-closure Liability Trust Fund shall be available only for the purposes described in sections 107(k) and lll(j) of this Act (as in effect on the date of the enactment of this Act). [(c) Administrative Provisions. — The provisions of sections 222 and 223 of this Act shall apply with respect to the Trust Fund es- tablished under this section, except that the amount of any repay- able advances outstanding at any one time shall not exceed $200,000,000.3 TITLE III— MISCELLANEOUS PROVISIONS reports and studies Sec. 301. (a)(1) The President shall submit to the Congress, within four years after enactment of this Act, a comprehensive report on experience with the implementation of this Act, includ- ing, but not limited to — (A) the extent to which the Act and Fund are effective in en- abling Government to respond to and mitigate the effects of re- leases of hgizardous substances; (B) a summary of past receipts and disbursements from the Fund; (C) a projection of any future funding needs remaining after the expiration of authority to collect taxes, and of the threat to public health, welfare, and the environment posed by the pro- jected releases which create any such needs; (D) the record and experience of the Fund in recovering Fund disbursements from liable parties; (E) the record of State participation in the system of re- sponse, liability, and compensation established by this Act; (F) the impact of the taxes imposed by title II of this Act on the Nation's balance of trade with other countries; (G) an assessment of the feasibility and desirability of a schedule of taxes which would take into account one or more of the following: the likelihood of a release of a hazardous sub- stance, the degree of hazard and risk of harm to public health, 296 118 welfare, and the environment resulting from any such release, incentives to proper handling, recycling, incineration, and neu- tralization of hazardous wastes, and disincentives to improper or illegal handling or disposal of hazardous materials, adminis- trative and reporting burdens on Grovernment and industry, and the extent to which the tax burden falls on the substances and parties which create the problems addressed by this Act. In preparing the report, the President shall consult with ap- propriate Federal, State, and local agencies, affected industries and claimants, and such other interested parties as he may find useful. Based upon the analyses and consultation required by this subsection, the President shall also include in the report any recommendations for legislative changes he may deem necessary for the better effectuation of the purposes of this Act, including but not limited to recommendations con- cerning authorization levels, taxes. State participation, liability and liability limits, and financial responsibility provisions for the Response Trust Fund and the Post-closure Liability Trust Fund; (H) an exemption from or an increase in the substances or the amount of taxes imposed by section 4661 of the Internal Revenue Code of 1954 for copper, lead, and zinc oxide, and for feedstocks when used in the manufacture and production of fertilizers, based upon the expenditure experience of the Re- sponse Trust Fund; (I) the economic impact of taxing coal-derived substances and recycled metals. (2) The Administrator of the Environmental Protection Agency (in consultation with the Secretary of the Treasury) shall submit to the Congress (i) within four years after enactment of this Act, a report identifying additional wastes designated by rule as hazard- ous after the effective date of this Act and pursuant to section 3001 of the Solid Waste Disposal Act and recommendations on appropri- ate tax rates for such wastes for the Post-closure Liability Trust Fund. The report shall, in addition, recommend a tax rate, consid- ering the quantity and potential danger to human health and the environment posed by the disposal of any wastes which the Admin- istrator, pursuant to subsection 3001(b)(2XB) and subsection 3001(b)(3)(A) of the Solid Waste Disposal Act of 1980, has deter- mined should be subject to regulation under subtitle C of such Act, (ii) within three years after enactment of this Act, a report on the necessity for and the adequacy of the revenue raised, in relation to estimated future requirements, of the Post-closure Liability Trust Fund. (b) The President shall conduct a study to determine (1) whether adequate private insurance protection is available on reasonable terms and conditions to the owners and operators of vessels and fa- cilities subject to liability under section 107 of this Act, and (2) whether the market for such insurance is sufficiently competitive to assure purchasers of features such as a reasonable range of de- ductibles, coinsurance provisions, and exclusions. The President shall submit the results of his study, together with his recommen- dations, within two years of the date of enactment of this Act, and 297 119 shall submit an interim report on his study within one year of the date of enactment of this Act. (c)(1) The President, acting through Federal officials designated by the National Contingency Plan published under section 105 of this Act, shall study and, not later than two years after the enact- ment of this Act, shall promulgate regulations for the assessment of damages for injury to, destruction of, or loss of natural resources resulting from a release of oil or a hazardous substance for the pur- poses of this Act and section 311(f) (4) and (5) of the Federal Water Pollution Control Act. Notwithstanding the failure of the President to promulgate the regulations required under this subsection on the required date, the President shall promulgate such regulations not later than 6 months after the enactment of the Super fund Amend- ments and Reauthorization Act of 1986. (2) Such regulations shall specify (A) standard procedures for simplified assessments requiring minimal field observation, includ- ing establishing measures of damages based on units of discharge or release or units of affected area, and (B) alternative protocols for conducting assessments in individual cases to determine the type and extent of short- and long-term injury, destruction, or loss. Such regulations shall identify the best available procedures to deter- mine such damages, including both direct and indirect injury, de- struction, or loss and shall take into consideration factors includ- ing, but not limited to, replacement value, use value, and ability of the ecosystem or resource to recover. (3) Such regulations shall be reviewed and revised as appropriate every two years. (d) The Administrator of the Environmental Protection Agency shall, in consultation with other Federal agencies and appropriate representatives of State and local governments and nongovernmen- tal agencies, conduct a study and report to the Congress within two years of the date of enactment of this Act on the issues, alterna- tives, and policy considerations involved in the selection of loca- tions for hazardous waste treatment, storage, and disposal facili- ties. This study shall include — (A) an assessment of current and projected treatment, stor- age, and disposal capacity needs and shortfalls for hazardous waste by management category on a State-by-State basis; (B) an evaluation of the appropriateness of a regional ap- proach to siting and designing hazardous waste management facilities and the identification of hazardous waste manage- ment regions, interstate or intrastate, or both, with similar hazardous waste management needs; (C) solicitation and analysis of proposals for the construction and operation of hazardous waste management facilities by nongovernmental entities, except that no proposal solicited under terms of this subsection shall be analyzed if it involves cost to the United States Government or fails to comply with the requirements of subtitle C of the Solid Waste Disposal Act and other applicable provisions of law; (D) recommendations on the appropriate balance between public and private sector involvement in the siting, design, and operation of new hazardous waste management facilities; 298 120 (E) documentation of the major reasons for public opposition to new hazardous waste management facilities; and (F) an evaluation of the various options for overcoming ob- stacles to siting new facilities, including needed legislation for implementing the most suitable option or options. (e)(1) In order to determine the adequacy of existing common law and statutory remedies in providing legal redress for harm to man and the environment caused by the release of hazardous substances into the environment, there shall be submitted to the Congress a study within twelve months of enactment of this Act. (2) This study shall be conducted with the assistance of the American Bar Association, the American Law Institute, the Asso- ciation of American Trial Lawyers, and the National Association of State Attorneys General with the President of each entity selecting three members from each organization to conduct the study. The study chairman and one reporter shall be elected from among the twelve members of the study group. (3) As part of their review of the adequacy of existing common law and statutory remedies, the study group shall evaluate the fol- lowing: (A) the nature, adequacy, and availability of existing reme- dies under present law in compensating for harm to man from the release of hazardous substances; (B) the nature of barriers to recovery (particularly with re- spect to burdens of going forward and of proof and relevancy) and the role such barriers play in the legal system; (C) the scope of the evidentiary burdens placed on the plain- tiff in proving harm from the release of hazardous substances, particularly in light of the scientific uncertainty over causa- tion with respect to — (i) carcinogens, mutagens, and teratogens, and (ii) the human health effects of exposure to low doses of hazardous substances over long periods of time; (D) the nature and adequacy of existing remedies under present law in providing compensation for damages to natural resources from the release of hazardous substances; (E) the scope of liability under existing law and the conse- quences, particularly with respect to obtaining insurance, of any changes in such liability; (F) barriers to recovery posed by existing statutes of limita- tions. (4) The report shall be submitted to the Congress with appropri- ate recommendations. Such recommendations shall explicitly ad- dress — (A) the need for revisions in existing statutory or common law, and (B) whether such revisions should take the form of Federal statutes or the development of a model code which is recom- mended for adoption by the States. (5) The Fund shall pay administrative expenses incurred for the study. No expenses shall be available to pay compensation, except expenses on a per diem basis for the one reporter, but in no case shall the total expenses of the study exceed $300,000. 299 121 (f) The President, acting through the Administrator of the Envi- ronmental Protection Agency, the Secretary of Transportation, the Administrator of the Occupational Safety and Health Administra- tion, and the Director of the National Institute for Occupational Safety and Health shall study and, not later than two years after the enactment of this Act, shall modify the national contingency plan to provide for the protection of the health and safety of em- ployees involved in response actions. (g) Insurability Study.— (1) Study by comptroller general. — The Comptroller Gen- eral of the United States, in consultation with the persons de- scribed in paragraph (2), shall undertake a study to determine the insurability, and effects on the standard of care, of the li- ability of each of the following: (A) Persons who generate hazardous substances: liability for costs and damages under this Act. (B) Persons who own or operate facilities: liability for costs and damages under this Act. (C) Persons liable for injury to persons or property caused by the release of hazardous substances into the environ- ment. (2) Consultation. — In conducting the study under this sub- section, the Comptroller General shall consult with the follow- ing: (A) Representatives of the Administrator. (B) Representatives of persons described in subparagraphs (A) through (C) of the preceding paragraph. (C) Representatives (i) of groups or organizations com- prised generally of persons adversely affected by releases or threatened releases of hazardous substances and (ii) of groups organized for protecting the interests of consumers. (D) Representatives of property and casualty insurers. (E) Representatives of reinsurers. (F) Persons responsible for the regulation of insurance at the State level. (2) Items evaluated. — The study under this section shall in- clude, among other matters, an evaluation of the following: (A) Current economic conditions in, and the future out- look for, the commercial market for insurance and reinsur- ance. (B) Current trends in statutory and common law reme- dies. (C) The impact of possible changes in traditional stand- ards of liability, proof, evidence, and damages on existing statutory and common law remedies. (D) The effect of the standard of liability and extent of the persons upon whom it is imposed under this Act on the protection of human health and the environment and on the availability, underwriting, and pricing of insurance coverage. (E) Current trends, if any, in the judicial interpretation and construction of applicable insurance contracts, together with the degree to which amendments in the language of 300 122 such contracts and the description of the risks assumed, could affect such trends. (F) The frequency and severity of a representative sample of claims closed during the calendar year immediately pre- ceding the enactment of this subsection. (G) Impediments to the acquisition of insurance or other means of obtaining liability coverage other than those re- ferred to in the preceding subparagraphs. (H) The effects of the standards of liability and financial responsibility requirements imposed pursuant to this Act on the cost of and incentives for, developing and demonstrat- ing alternative and innovative treatment technologies, as well as waste generation minimization. (4) Submission. — The Comptroller General shall submit a report on the results of the study to Congress with appropriate recommendations within 12 months after the enactment of this subsection. (h) Report and Oversight Requirements. — (1) Annual report by epa. — On January 1 of each year the Administrator of the Environmental Protection Agency shall submit an annual report to Congress of such Agency on the progress achieved in implementing this Act during the preced- ing fiscal year. In addition such report shall specifically in- clude each of the following: (A) A detailed description of each feasibility study car- ried out at a facility under title I of this Act. (B) The status and estimated date of completion of each such study. (C) Notice of each such study which will not meet a pre- viously published schedule for completion and the new esti- mated date for completion. (D) An evaluation of newly developed feasible and achievable permanent treatment technologies. (E) Progress made in reducing the number of facilities subject to review under section 121(c). (F) A report on the status of all remedial and enforce- ment actions undertaken during the prior fiscal year, in- cluding a comparison to remedial and enforcement actions undertaken in prior fiscal years. (G) An estimate of the amount of resources, including the number of work years or personnel, which would be neces- sary for each department, agency, or instrumentality which is carrying out any activities of this Act to complete the im- plementation of all duties vested in the department, agency, or instrumentality under this Act. (2) Review by inspector general. — Consistent with the au- thorities of the Inspector General Act of 1978 the Inspector Gen- eral of the Environmental Protection Agency shall review any report submitted under paragraph (1) related to EPA 's activities for reasonableness and accuracy and submit to Congress, as a part of such report a report on the results of such review. (2) Congressional oversight. — After receiving the reports under paragraphs (1) and (2) of this subsection in any calendar year, the appropriate authorizing committees of Congress shall 301 123 conduct oversight hearings to ensure that this Act is being im- plemented according to the purposes of this Act and congres- sional intent in enacting this Act. EFFECTIVE DATES, SAVINGS PROVISION Sec. 302. (a) Unless otherwise provided, all provisions of this Act shall be effective on the date of enactment of this Act. (b) Any regulation issued pursuant to any provisions of section 311 of the Clean Water Act which is repealed or superseded by this Act and which is in effect on the date immediately preceding the effective date of this Act shall be deemed to be a regulation issued pursuant to the authority of this Act and shall remain in full force and effect unless or until superseded by new regulations issued thereunder. (c) Any regulation — (1) respecting financial responsibility, (2) issued pursuant to any provision of law repealed or super- seded by this Act, and (3) in effect on the date immediately preceding the effective date of this Act shall be deemed to be a regulation issued pur- suant to the authority of this Act and shall remain in full force and effect unless or until superseded by new regulations issued thereunder. (d) Nothing in this Act shall affect or modify in any way the obli- gations or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants. The provisions of this Act shall not be considered, interpreted, or construed in any way as reflecting a determination, in part or whole, of policy re- garding the inapplicability of strict liability, or strict liability doc- trines, to activities relating to hazardous substances, pollutants, or contaminants or other such activities. [expiration, sunset provision [Sec. 303. Unless reauthorized by the Congress, the authority to collect taxes conferred by this Act shall terminate on September 30, 1985, or when the sum of the amounts received in the Treasury under section 4611 and under 4661 of the Internal Revenue Code of 1954 total $1,380,000,000, whichever occurs first. The Secretary of the Treasury shall estimate when this level of $1,380,000,000 will be reached and shall by regulation, provide procedures for the ter- mination of the tax authorized by this Act and imposed under sec- tions 4611 and 4661 of the Internal Revenue Code of 1954.3 ^2 conforming amendments Sec. 304. (a) Subsection (b) of section 504 of the Federal Water Pollution Control Act is hereby repealed. (b) One-half of the unobligated balance remaining before the date of the enactment of this Act under subsection (k) of section 311 of the Federal Water Pollution Control Act and all sums appropriated under section 504(b) of the Federal Water Pollution Control Act Repealed by section 501(b) of P.L. 99-499. 302 124 shall be transferred to the Fund established under title II of this Act. (c) In any case in which any provision of section 311 of the Feder- al Water Pollution Control Act is determined to be in conflict with any provisions of this Act, the provisions of this Act shall apply. LEGISLATIVE VETO Sec. 305. (a) Notwithstanding any other provision of law, simulta- neously with promulgation or repromulgation of any rule or regu- lation under authority of title I of this Act, the head of the depart- ment, agency, or instrumentality promulgating such rule or regula- tion shall transmit a copy thereof to the Secretary of the Senate and the Clerk of the House of Representatives. Except as provided in subsection (b) of this section, the rule or regulation shall not become effective, if— (1) within ninety calendar days of continuous session of Con- gress after the date of promulgation, both Houses of Congress adopt a concurrent resolution, the matter after the resolving clause of which is as follows: "That Congress disapproves the rule or regulation promulgated by the dealing with the matter of , which rule or regulation was transmitted to Congress on .", the blank spaces therein being appropriately filled; or (2) within sixty calendar days of continuous session of Con- gress after the date of promulgation, one House of Congress adopts such a concurrent resolution and transmits such resolu- tion to the other House, and such resolution is not disapproved by such other House within thirty calendar days of continuous session of Congress after such transmittal. (b) If, at the end of sixty calendar days of continuous session of Congress after the date of promulgation of a rule or regulation, no committee of either House of Congress has reported or been dis- charged from further consideration of a concurrent resolution dis- approving the rule or regulation and neither House has adopted such a resolution, the rule or regulation may go into effect immedi- ately. If, within such sixty calendar days, such a committee has re- ported or been discharged from further consideration of such a res- olution, or either House has adopted such a resolution, the rule or regulation may go into effect not sooner than ninety calendar days of continuous session of Congress after such rule is prescribed unless disapproved as provided in subsection (a) of this section. (c) For purposes of subsections (a) and (b) of this section— (1) continuity of session is broken only by an adjournment of Congress sine die; and (2) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of thirty, sixty, and ninety calendar days of continuous session of Congress. (d) Congressional inaction on, or rejection of^ a resolution of dis- approval shall not be deemed an expression of approval of such rule or regulation. 303 125 TRANSPORTATION Sec. 306. (a) Each hazardous substance which is listed or desig- nated as provided in section 101(14) of this Act shall, [within ninety days after the date of enactment of this Act] within SO days after the enactment of the Superfund Amendments and Reau- thorization Act of 1986, or at the time of such listing or designa- tion, whichever is later, be listed and regulated as a hazardous ma- terial under the Hazardous Materials Transportation Act. (b) A common or contract carrier shall be liable under other law in lieu of section 107 of this Act for damages or remedial action resulting from the release of a hazardous substance during the course of transportation which commenced prior to the effective date of the listing of such substance as a hazardous material under the Hazardous Materials Transportation Act, or for substances listed pursuant to subsection (a) of this section, prior to the effec- tive date of such listing and regulation: Provided, however. That this subsection shall not apply where such a carrier can demon- strate that he did not have actual knowledge of the identity or nature of the substance released. (c) Section 11901 of title 49, United States Code, is amended by- CD redesignating subsection (h) as subsection (i); (2) by inserting "and subsection (h)" after "subsection (g)" in subsection (iX2) as so redesignated by paragraph (1) of this sub- section; and (3) by inserting the following new subsection (h): "(h) A person subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title, or an officer, agent, or employee of that person, and who is required to comply with sec- tion 10921 of this title but does not so comply with respect to the transportation of hazardous wastes as defined by the Environmen- tal Protection Agency pursuant to section 3001 of the Solid Waste Disposal Act (but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Con- gress) shall, in any action brought by the Commission, be liable to the United States for a civil penalty not to exceed $20,000 for each violation.". ASSISTANT ADMINISTRATOR FOR SOLID WASTE Sec. 307. (a) Section 2001 of the Solid Waste Disposal Act is amended by striking out "a Deputy Assistant" and inserting in lieu thereof "an Assistant". (b) The Assistant Administrator of the Environmental Protection Agency appointed to head the Office of Solid Waste shall be in ad- dition to the five Assistant Administrators of the Environmental Protection Agency provided for in section 1(d) of Reorganization Plan Numbered 3 of 1970 and the additional Assistant Administra- tor provided by the Toxic Substances Control Act, shall be appoint- ed by the President by and with the advice and consent of the Senate, and shall be compensated at the rate provided for Level IV of the Executive Schedule pay rates under section 5315 of title 5, United States Code. . (c) The amendment made by subsection (a) shall become effective ninety days after the date of the enactment of this Act. 75-032 0-90-11 304 126 SEPARABIUTY Sec. 308. If any provision of this Act, or the application of any provision of this Act to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances and the remainder of this Act shall not be affected thereby. If an administrative settlement under section 122 has the effect of limit- ing any person 's right to obtain contribution from any party to such settlement, and if the effect of such limitation would constitute a taking without just compensation in violation of the fifth amend- ment of the Constitution of the United States, such person shall not be entitled, under other laws of the United States, to recover com- pensation from the United States for such taking, but in any such case, such limitation on the right to obtain contribution shall be treated as having no force and effect. SEC 309. ACTIONS UNDER STATE LA W FOR DAMAGES FROM EXPOSURE TO HAZARDOUS SUBSTANCES. (a) State Statutes of Limitations for Hazardous Substance Cases.— (1) Exception to state statutes.— In the case of any action brought under State law for personal injury, or property dam- ages, which are caused or contributed to by exposure to any haz- ardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute. (2) State law generally applicable. — Except as provided in paragraph (1), the statute of limitations established under State law shall apply in all actions brought under State law for personal injury, or property damages, which are caused or con- tributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility. (3) Actions under section io7. — Nothing in this section shall apply with respect to any cause of action brought under section 107 of this Act. (b) Definitions. — As used in this section — (1) Title i terms. — The terms used in this section shall have the same meaning as when used in title I of this Act. (2) Applicable limitations period. — the term ''applicable limitations period^' means the period specified in a statute of limitations during which a civil action referred to in subsection (a)(1) may be brought. (3) Commencement date. — The term "commencement date'' means the date specified in a statute of limitations as the be- ginning of the applicable limitations period. (4) Federally required commencement date. — (A) In general. — Except as provided in subparagraph (B), the term ''federally required commencement date" means the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (aXD were caused or contributed to 305 127 by the hazardous substance or pollutant or contaminant concerned. (B) Special rules. — In the case of a minor or incompe- tent plaintiff, the term "federally required commencement date means the later of the date referred to in subpara- graph (A) or the following: (i) In the case of a minor, the date on which the minor reaches the age of majority, as determined by State law, or has a legal representative appointed. (ii) In the case of an incompetent individual, the date on which such individual becomes competent or has had a legal representative appointed. SEC. 310. CITIZENS SUITS. (a) Authority to Bring Civil Actions.— Except as provided in subsections (d) and (e) of this section and in section 113(h) (relating to timing of judicial review), any person may commence a civil action on his own behalf— (1) against any person (including the United States and any other governmental instrumentality or agency, to the extent per- mitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this Act (including any provision of an agreement under section 120, relating to Federal facilities); or (2) against the President or any other officer of the United States (including the Administrator of the Environmental Pro- tection Agency and the Administrator of the ATSDR) where there is alleged a failure of the President or of such other offi- cer to perform any act or duty under this Act, including an act or duty under section 120 (relating to Federal facilities), which is not discretionary with the President or such other officer. Paragraph (2) shall not apply to any act or duty under the provi- sions of section 311 (relating to research, development, and demon- stration). (b) Venue.— (1) Actions under subsection (aXD.^Any action under sub- section (aXD shall be brought in the district court for the dis- trict in which the alleged violation occurred. (2) Actions under subsection (a)(2).— Any action brought under subsection (aX2) may be brought in the United States Dis- trict Court for the District of Columbia. (c) Relief. — The district court shall have jurisdiction in actions brought under subsection (aXD to enforce the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 120), to order such action as may be necessary to correct the violation, and to impose any civil penalty provided for the violation. The district court shall have jurisdiction in actions brought under subsection (aX2) to order the President or other officer to perform the act or duty concerned. (d) Rules Applicable to Subsection (aXD Actions.— (1) Notice. — No action may be commenced under subsection (aXD of this section before 60 days after the plaintiff has given notice of the violation to each of the following: 306 128 (A) The President (B) The State in which the alleged violation occurs. (C) Any alleged violator of the standard, regulation, con- dition, requirement, or order concerned (including any pro- vision of an agreement under section 120). Notice under this paragraph shall he given in such manner as the President shall prescribe by regulation. (2) Diligent prosecution. — No action may be commenced under paragraph (1) of subsection (a) if the President has com- menced and is diligently prosecuting an action under this Act, or under the Solid Waste Disposal Act to require compliance with the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under sec- tion 120). (e) Rules Applicable to Subsection (a)(2) Actions.— No action may be commenced under paragraph (2) of subsection (a) before the 60th day following the date on which the plaintiff gives notice to the Administrator or other department, agency, or instrumentality that the plaintiff will commence such action. Notice under this sub- section shall be given in such manner as the President shall pre- scribe by regulation. (f) Costs. — The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (in- cluding reasonable attorney and expert witness fees) to the prevail- ing or the substantially prevailing party whenever the court deter- mines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Feder- al Rules of Civil Procedure. (g) Intervention. — In any action under this section, the United States or the State, or both, if not a party may intervene as a matter of right. For other provisions regarding intervention, see section 113. (h) Other Rights.— This Act does not affect or otherwise impair the rights of any person under Federal, State, or common law, except with respect to the timing of review as provided in section 113(h) or as otherwise provided in section 309 (relating to actions under State law). (i) Definitions. — The terms used in this section shall have the same meanings as when used in title I SEC. 31L RESEARCH, DEVELOPMENT, AND DEMONSTRATION. (a) Hazardous Substance Research and Training. — (1) Authorities of secretary. — The Secretary of Health and Human Services (hereinafter in this subsection referred to as the Secretary), in consultation with the Administrator, shall es- tablish and support a basic research and training program (through grants, cooperative agreements, and contracts) consist- ing of the following: (A) Basic research (including epidemiologic and ecologic studies) which may include each of the following: (i) Advanced techniques for the detection, assessment, and evaluation of the effects on human health of haz- ardous substances. 307 129 (ii) Methods to assess the risks to human health pre- sented by hazardous substances. (Hi) Methods and technologies to detect hazardous substances in the environment and basic biological, chemical, and physical methods to reduce the amount and toxicity of hazardous substances. (B) Training, which may include each of the following: (i) Short courses and continuing education for State and local health and environment agency personnel and other personnel engaged in the handling of haz- ardous substances, in the management of facilities at which hazardous substances are located, and in the evaluation of the hazards to human health presented by such facilities. (ii) Graduate or advanced training in environmental and occupational health and safety and in the public health and engineering aspects of hazardous waste con- trol. (Hi) Graduate training in the geosciences, including hydrogeology, geological engineering, geophysics, geo- chemistry, and related fields necessary to meet profes- sional personnel needs in the public and private sectors and to effectuate the purposes of this Act. (2) Director of niehs. — The Director of the National Insti- tute for Environmental Health Sciences shall cooperate fully with the relevant Federal agencies referred to in subparagraph (A) of paragraph (5) in carrying out the purposes of this section. (3) Recipients of grants, etc.— A grant, cooperative agree- ment, or contract may be made or entered into under paragraph (1) with an accredited institution of higher education. The insti- tution may carry out the research or training under the grant, cooperative agreement, or contract through contracts, including contracts with any of the following: (A) Generators of hazardous wastes. (B) Persons involved in the detection, assessment, evalua- tion, and treatment of hazardous substances. (C) Owners and operators of facilities at which hazardous substances are located. (D) State and local governments. (Jf) Procedures. — In making grants and entering into cooper- ative agreements and contracts under this subsection, the Secre- tary shall act through the Director of the National Institute for Environmental Health Sciences. In considering the allocation of funds for training purposes, the Director shall ensure that at least one grant, cooperative agreement, or contract shall be awarded for training described in each of clauses (i), (ii), and (Hi) of paragraph (1)(B). Where applicable, the Director may choose to operate training activities in cooperation with the Di- rector of the National Institute for Occupational Safety and Health. The procedures applicable to grants and contracts under title IV of the Public Health Service Act shall be fol- lowed under this subsection. (5) Advisory council. — To assist in the implementation of this subsection and to aid in the coordination of research and 308 130 demonstration and training activities funded from the Fund under this section, the Secretary shall appoint an advisory council (hereinafter in this subsection referred to as the ''Advi- sory Council") which shall consist of representatives of the fol- lowing: (A) The relevant Federal agencies. (B) The chemical industry. (C) The toxic waste management industry. (D) Institutions of higher education. (E) State and local health and environmental agencies. (F) The general public. (6) Planning. — Within nine months after the date of the en- actment of this subsection, the Secretary, acting through the Di- rector of the National Institute for Environmental Health Sci- ences, shall issue a plan for the implementation of paragraph (1). The plan shall include priorities for actions under para- graph (1) and include research and training relevant to scientif- ic and technological issues resulting from site specific hazard- ous substance response experience. The Secretary shall, to the maximum extent practicable, take appropriate steps to coordi- nate program activities under this plan with the activities of other Federal agencies in order to avoid duplication of effort. The plan shall be consistent with the need for the development of new technologies for meeting the goals of response actions in accordance with the provisions of this Act. The Advisory Coun- cil shall be provided an opportunity to review and comment on the plan and priorities and assist appropriate coordination among the relevant Federal agencies referred to in subpara- graph (A) of paragraph (5). (b) Alternative or Innovative Treatment Technology Re- search AND Demonstration Program. — (1) Establishment. — The Administrator is authorized and directed to carry out a program of research, evaluation, testing, development, and demonstration of alternative or innovative treatment technologies (hereinafter in this subsection referred to as the ''program") which may be utilized in response actions to achieve more permanent protection of human health and wel- fare and the environment. (2) Administration. — The program shall be administered by the Administrator, acting through an office of technology dem- onstration and shall be coordinated with programs carried out by the Office of Solid Waste and Emergency Response and the Office of Research and Development. (3) Contracts and grants. — In carrying out the program, the Administrator is authorized to enter into contracts and co- operative agreements with, and make grants to, persons, public entities, and nonprofit private entities which are exempt from tax under section 501(c)(3) of the Internal Revenue Code of 1954. The Administrator shall, to the maximum extent possible, enter into appropriate cost sharing arrangements under this subsec- tion. (4) Use of sites. — In carrying out the program, the Adminis- trator may arrange for the use of sites at which a response may be undertaken under section 104 for the purposes of carrying out 309 131 research, testing, evaluation, development, and demonstration projects. Each such project shall be carried out under such terms and conditions as the Administrator shall require to assure the protection of human health and the environment and to assure adequate control by the Administrator of the re- search, testing, evaluation, development, and demonstration ac- tivities at the site. (5) Demonstration assistance. — (A) Program components. — The demonstration assist- ance program shall include the following: (i) The publication of a solicitation and the evalua- tion of applications for demonstration projects utilizing alternative or innovative technologies. (ii) The selection of sites which are suitable for the testing and evaluation of innovative technologies. (Hi) The development of detailed plans for innovative technology demonstration projects. (iv) The supervision of such demonstration projects and the providing of quality assurance for data ob- tained. (v) The evaluation of the results of alternative inno- vative technology demonstration projects and the deter- mination of whether or not the technologies used are effective and feasible. (B) Solicitation.— Within 90 days after the date of the enactment of this section, and no less often than once every 12 months thereafter, the Administrator shall publish a so- licitation for innovative or alternative technologies at a stage of development suitable for full-scale demonstrations at sites at which a response action may be undertaken under section 104. The purpose of any such project shall be to demonstrate the use of an alternative or innovative treat- ment technology with respect to hazardous substances or pollutants or contaminants which are located at the site or which are to be removed from the site. The solicitation notice shall prescribe information to be included in the ap- plication, including technical and economic data derived from the applicant s own research and development efforts, and other information sufficient to permit the Administra- tor to assess the technology's potential and the types of re- medial action to which it may be applicable. (C) Applications.— Any person and any public or private nonprofit entity may submit an application to the Adminis- trator in response to the solicitation. The application shall contain a proposed demonstration plan setting forth how and when the project is to be carried out and such other information as the Administrator may require. (D) Project selection. — In selecting technologies to be demonstrated, the Administrator shall fully review the ap- plications submitted and shall consider at least the criteria specified in paragraph (7). The Administrator shall select or refuse to select a project for demonstration under this subsection within 90 days of receiving the completed appli- cation for such project. In the case of a refusal to select the 310 132 project, the Administrator shall notify the applicant within such 90-day period of the reasons for his refusal. (E) Site selection. — The Administrator shall propose 10 sites at which a response may be undertaken under section 104 to be the location of any demonstration project under this subsection within 60 days after the close of the public comment period. After an opportunity for notice and public comment, the Administrator shall select such sites and projects. In selecting any such site, the Administrator shall take into account the applicant's technical data and prefer- ences either for onsite operation or for utilizing the site a^ a source of hazardous substances or pollutants or contami- nants to be treated offsite. (F) Demonstration plan— Within 60 days after the se- lection of the site under this paragraph to be the location of a demonstration project, the Administrator shall establish a final demonstration plan for the project, based upon the demonstration plan contained in the application for the project. Such plan shall clearly set forth how and when the demonstration project will be carried out. (G) Supervision and testing. — Each demonstration project under this subsection shall be performed by the ap- plicant, or by a person satisfactory to the applicant, under the supervision of the Administrator. The Administrator shall enter into a written agreement with each applicant granting the Administrator the responsibility and authority for testing procedures, quality control, monitoring, and other measurements necessary to determine and evaluate the results of the demonstration project. The Administrator may pay the costs of testing, monitoring, quality control, and other measurements required by the Administrator to determine and evaluate the results of the demonstration project, and the limitations established by subparagraph (J) shall not apply to such costs. (H) Project completion. — Each demonstration project under this subsection shall be completed within such time as is established in the demonstration plan. (I) Extensions. — The Administrator may extend any deadline established under this paragraph by mutual agreement with the applicant concerned. (J) Funding restrictions. — The Administrator shall not provide any Federal assistance for any part of a full-scale field demonstration project under this subsection to any ap- plicant unless such applicant can demonstrate that it cannot obtain appropriate private financing on reasonable terms and conditions sufficient to carry out such demon- stration project without such Federal assistance. The total Federal funds for any full-scale field demonstration project under this subsection shall not exceed 50 percent of the total cost of such project estimated at the time of the award of such assistance. The Administrator shall not expend more than $10,000,000 for assistance under the program in any fiscal year and shall not expend more than $3,000,000 for any single project. 311 133 (6) Field demonstrations. — In carrying out the program, the Administrator shall initiate or cause to he initiated at least 10 field demonstration projects of alternative or innovative treat- ment technologies at sites at which a response may be undertak- en under section 104, in fiscal year 1987 and each of the suc- ceeding three fiscal years. If the Administrator determines that 10 field demonstration projects under this subsection cannot be initiated consistent with the criteria set forth in paragraph (7) in any of such fiscal years, the Administrator shall transmit to the appropriate committees of Congress a report explaining the reasons for his inability to conduct such demonstration projects. (7) Criteria. — In selecting technologies to be demonstrated under this subsection, the Administrator shall, consistent with the protection of human health and the environment, consider each of the following criteria: (A) The potential for contributing to solutions to those waste problems which pose the greatest threat to human health, which cannot be adequately controlled under present technologies, or which otherwise pose significant management difficulties. (B) The availability of technologies which have been suf- ficiently developed for field demonstration and which are likely to be cost-effective and reliable. (C) The availability and suitability of sites for demon- strating such technologies, taking into account the physical, biological, chemical, and geological characteristics of the sites, the extent and type of contamination found at the site, and the capability to conduct demonstration projects in such a manner as to assure the protection of human health and the environment. (D) The likelihood that the data to be generated from the demonstration project at the site will be applicable to other sites. (8) Technology transfer. — In carrying out the program, the Administrator shall conduct a technology transfer program in- cluding the development, collection, evaluation, coordination, and dissemination of information relating to the utilization of alternative or innovative treatment technologies for response ac- tions. The Administrator shall establish and maintain a cen- tral reference library for such information. The information maintained by the Administrator shall be made available to the public, subject to the provisions of section 552 of title 5 of the United States Code and section 1905 of title 18 of the United States Code, and to other Government agencies in a manner that will facilitate its dissemination; except, that upon a showing satisfactory to the Administrator by any person that any information or portion thereof obtained under this subsec- tion by the Administrator directly or indirectly from such person, would, if made public, divulge — (A) trade secrets; or (B) other proprietary information of such person, the Administrator shall not disclose such information and dis- closure thereof shall be punishable under section 1905 of title 18 of the United States Code. This subsection is not authority to 312 134 withhold information from Congress or any committee of Con- gress upon the request of the chairman of such committee. (9) Training. — The Administrator is authorized and directed to carry out, through the Office of Technology demonstration, a program of training and an evaluation of training needs for each of the following: (A) Training in the procedures for the handling and re- moval of hazardous substances for employees who handle hazardous substances. (B) Training in the management of facilities at which hazardous substances are located and in the evaluation of the hazards to human health presented by such facilities for State and local health and environment agency person- nel. (10) Definition. — For purposes of this subsection, the term ''alternative or innovative treatment technologies " means those technologies, including proprietary or patented methods, which permanently alter the composition of hazardous waste through chemical, biological, or physical means so as to significantly reduce the toxicity, mobility, or volume (or any combination thereof) of the hazardous waste or contaminated materials being treated. The term also includes technologies that charac- terize or assess the extent of contamination, the chemical and physical character of the contaminants, and the stresses im- posed by the contaminants on complex ecosystems at sites. (c) Hazardous Substance Research. — The Administrator may conduct and support, through grants, cooperative agreements, and contracts, research with respect to the detection, assessment, and evaluation of the effects on and risks to human health of hazardous substances and detection of hazardous substances in the environ- ment. The Administrator shall coordinate such research with the Secretaij of Health and Human Services, acting through the adviso- ry council established under this section, in order to avoid duplica- tion of effort. (d) University Hazardous Substance Research Centers. — (1) Grant program. — The Administrator shall make grants to institutions of higher learning to establish and operate not fewer than 5 hazardous substance research centers in the United States. In carrying out the program under this subsec- tion, the Administrator should seek to have established and op- erated 10 hazardous substance research centers in the United States. (2) Responsibilities of centers. — The responsibilities of each hazardous substance research center established under this subsection shall include, but not be limited to, the conduct of research and training relating to the manufacture, use, trans- portation, disposal, and management of hazardous substances and publication and dissemination of the results of such re- search. (3) Applications.— Any institution of higher learning inter- ested in receiving a grant under this subsection shall submit to the Administrator an application in such form and containing such information as the Administrator may require by regula- tion. 313 135 (Jk) Selection criteria.— The Administrator shall select re- cipients of grants under this subsection on the basis of the fol- lowing criteria: (A) The hazardous substance research center shall be lo- cated in a State which is representative of the needs of the region in which such State is located for improved hazard- ous waste management. (B) The grant recipient shall be located in an area which has experienced problems with hazardous substance man- agement. (C) There is available to the grant recipient for carrying out this subsection demonstrated research resources. (D) The capability of the grant recipient to provide lead- ership in making national and regional contributions to the solution of both long-range and immediate hazardous substance management problems. (E) The grant recipient shall make a commitment to sup- port ongoing hazardous substance research programs with budgeted institutional funds of at least $100,000 per year. (F) The grant recipient shall have an interdisciplinary staff with demonstrated expertise in hazardous substance management and research. (G) The grant recipient shall have a demonstrated ability to disseminate results of hazardous substance research and educational programs through an interdisciplinary continu- ing education program. (H) The projects which the grant recipient proposes to carry out under the grant are necessary and appropriate. (5) Maintenance of effort.— No grant may be made under this subsection in any fiscal year unless the recipient of such grant enters into such agreements with the Administrator as the Administrator may require to ensure that such recipient will maintain its aggregate expenditures from all other sources for establishing and operating a regional hazardous substance research center and related research activities at or above the average level of such expenditures in its 2 fiscal years preceding the date of the enactment of this subsection. (6) Federal share.— The Federal share of a grant under this subsection shall not exceed 80 percent of the costs of establish- ing and operating the regional hazardous substance research center and related research activities carried out by the grant recipient. (7) Limitation on use of funds. — No funds made available to carry out this subsection shall be used for acquisition of real property (including buildings) or construction of any building. (8) Administration through the office of the adminis- trator.— Administrative responsibility for carrying out this subsection shall be in the Office of the Administrator. (9) Equitable distribution of funds.— The Administrator shall allocate funds made available to carry out this subsection equitably among the regions of the United States. (10) Technology transfer activities.— Not less than five percent of the funds made available to carry out this subsection 314 136 for any fiscal year shall be available to carry out technology transfer activities. (e) Report to Congress. — At the time of the submission of the annual budget request to Congress^ the Administrator shall submit to the appropriate committees of the House of Representatives and the Senate and to the advisory council established under subsection (a), a report on the progress of the research, development, and dem- onstration program authorized by subsection (b), including an eval- uation of each demonstration project completed in the preceding fiscal year, findings with respect to the efficacy of such demonstrat- ed technologies in achieving permanent and significant reductions in risk from hazardous wastes, the costs of such demonstration projects, and the potential applicability of, and projected costs for, such technologies at other hazardous substance sites. (f) Saving Provision. — Nothing in this section shall be construed to affect the provisions of the Solid Waste Disposal Act. (g) Small Business Participation— The Administrator shall ensure, to the maximum extent practicable, an adequate opportunity for small business participation in the program established by sub- section (b). SEC. 312. LO VE CANAL PROPERTY A CQUISITION. (a) Acquisition of Property in Emergency Declaration Area. — The Administrator of the Environmental Protection Agency (hereinafter referred to as the ^Administrator*') may make grants not to exceed $2,500,000 to the State of New York (or to any duly constituted public agency or authority thereof) for purposes of acqui- sition of private property in the Love Canal Emergency Declaration Area. Such acquisition shall include (but shall not be limited to) all private property within the Emergency Declaration Area, including non-owner occupied residential properties, commercial, industrial, public, religious, non-profit, and vacant properties. (b) Procedures for Acquisition. — No property shall be acquired pursuant to this section unless the property owner voluntarily agrees to such acquisition. Compensation for any property acquired pursu- ant to this section shall be based upon the fair market value of the property as it existed prior to the emergency declaration. Valuation procedures for property acquired with funds provided under this sec- tion shall be in accordance with those set forth in the agreement en- tered into between the New York State Disaster Preparedness Com- mission and the Love Canal Revitalization Agency on October 9, 1980 (c) State Ownership. — The Administrator shall not provide any funds under this section for the acquisition of any properties pursu- ant to this section unless a public agency or authority of the State of New York first enters into a cooperative agreement with the Admin- istrator providing assurances deemed adequate by the Administra- tor that the State or an agency created under the laws of the State shall take title to the properties to be so acquired. (d) Maintenance of Property. — The Administrator shall enter into a cooperative agreement with an appropriate public agency or authority of the State of New York under which the Administrator shall maintain or arrange for the maintenance of all properties within the Emergency Declaration Area that have been acquired by I 315 137 any public agency or authority of the State. Ninety (90) percent of the costs of such maintenance shall be paid by the Administrator. The remaining portion of such costs shall be paid by the State (unless a credit is available under section 104(c)). The Administrator is authorized, in his discretion, to provide technical assistance to any public agency or authority of the State of New York in order to implement the recommendations of the habitability and land-use study in order to put the land within the Emergency Declaration Area to its best use. (e) Habitability and Land Use Study. — The Administrator shall conduct or cause to be conducted a habitability and land-use study. The study shall — (1) assess the risks associated with inhabiting of the Love Canal Emergency Declaration Area; (2) compare the level of hazardous waste contamination in that Area to that present in other comparable communities; and (2) assess the potential uses of the land within the Emergency Declaration Area, including but not limited to residential, in- dustrial, commercial and recreational, and the risks associated with such potential uses. The Administrator shall publish the findings of such study and shall work with the State of New York to develop recommendations based upon the results of such study. (f) Funding. — For purposes of section 111 [and 221(c) of this Act], the expenditures authorized by this section shall be treated as a cost specified in section 111(c). (g) Response. — The provisions of this section shall not affect the implementation of other response actions within the Emergency Dec- laration Area that the Administrator has determined (before enact- ment of this section) to be necessary to protect the public health or welfare or the environment. (h) Definitions. — For purposes of this section: (1) Emergency declaration area. — The terms "Emergency Declaration Area'' and 'Love Canal Emergency Declaration Area" mean the Emergency Declaration Area as defined in sec- tion 950, paragraph (2) of the General Municipal Law of the State of New York, Chapter 259, Laws of 1980, as in effect on the date of the enactment of this section. (2) Private property. — As used in subsection (a), the term ''private property'' means all property which is not owned by a department, agency, or instrumentality of— (A) the United States, or (B) the State of New York (or any public agency or au- thority thereof). TITLE IV—POLLUTION INSURANCE SEC. 40L DEFINITIONS. As used in this title — (1) Insurance. — The term "insurance" means primary insur- ance, excess insurance, reinsurance, surplus lines insurance, and any other arrangement for shifting and distributing risk which is determined to be insurance under applicable State or Federal law. 316 138 (2) Pollution liability. — The term ''pollution liability'' means liability for injuries arising from the release of hazard- ous substances or pollutants or contaminants. (3) Risk retention group. — The term ''risk retention group'* means any corporation or other limited liability association tax- able as a corporation, or as an insurance company, formed under the laws of any State — (A) whose primary activity consists of assuming and spreading all, or any portion, of the pollution liability of its group members; (B) which is organized for the primary purpose of con- ducting the activity described under subparagraph (A); (C) which is chartered or licensed as an insurance compa- ny and authorized to engage in the business of insurance under the laws of any State; and (D) which does not exclude any person from membership in the group solely to provide for members of such a group a competitive advantage over such a person. (J^) Purchasing group. — The term "purchasing group" means any group of persons which has as one of its purposes the pur- chase of pollution liability insurance on a group basis. (5) State.— The term "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Com- monwealth of the Northern Marianas, and any other territory or possession over which the United States has jurisdiction. SEC. 402. STATE LA WS; SCOPE OF TITLE. (a) State Laws.— Nothing in this title shall be construed to affect either the tort law or the law governing the interpretation of insur- ance contracts of any State. The definitions of pollution liability and pollution liability insurance under any State law shall not be applied for the purposes of this title, including recognition or quali- fication of risk retention groups or purchasing groups. (b) Scope of Title.— The authority to offer or to provide insur- ance under this title shall be limited to coverage of pollution liabil- ity risks and this title does not authorize a risk retention group or purchasing group to provide coverage of any other line of insurance. SEC. 403. RISK RETENTION GROUPS. (a) Exemption. — Except as provided in this section, a risk reten- tion group shall be exempt from the following: (1) A State law, rule, or order which makes unlawful, or regu- lates, directly or indirectly, the operation of a risk retention group. (2) A State law, rule, or order which requires or permits a risk retention group to participate in any insurance insolvency guaranty association to which an insurer licensed in the State is required to belong. (3) A State law, rule, or order which requires any insurance policy issued to a risk retention group or any member of the group to be countersigned by an insurance agent or broker resid- ing in the State. (j^) A State law, rule, or order which otherwise discriminates against a risk retention group or any of its members. 317 139 (b) Exceptions.— (1) State laws generally applicable. — Nothing in subsec- tion (a) shall be construed to affect the applicability of State laws generally applicable to persons or corporations. The State in which a risk retention group is chartered may regulate the formation and operation of the group. (2) State regulations not subject to exemption— Subsec- tion (a) shall not apply to any State law which requires a risk retention group to do any of the following: (A) Comply with the unfair claim settlement practices law of the State. (B) Pay, on a nondiscriminatory basis, applicable premi- um and other taxes which are levied on admitted insurers and surplus line insurers, brokers, or policyholders under the laws of the State. (C) Participate, on a nondiscriminatory basis, in any mechanism established or authorized under the law of the State for the equitable apportionment among insurers of pollution liability insurance losses and expenses incurred on policies written through such mechanism. CD) Submit to the appropriate authority reports and other information required of licensed insurers under the laws of a State relating solely to pollution liability insurance losses and expenses. (E) Register with and designate the State insurance com- missioner as its agent solely for the purpose of receiving service of legal documents or process. (F) Furnish, upon request, such commissioner a copy of any financial report submitted by the risk retention group to the commissioner of the chartering or licensing jurisdic- tion. (G) Submit to an examination by the State insurance commissioner in any State in which the group is doing business to determine the group's financial condition, if— (i) the commissioner has reason to believe the risk re- tention group is in a financially impaired condition; and (ii) the commissioner of the jurisdiction in which the group is chartered has not begun or has refused to ini- tiate an examination of the group. (H) Comply with a lawful order issued in a delinquency proceeding commenced by the State insurance commissioner if the commissioner of the jurisdiction in which the group is chartered has failed to initiate such a proceeding after notice of a finding of financial impairment under subpara- graph (G). (c) Application of Exemptions. — The exemptions specified in subsection (a) apply to — (1) pollution liability insurance coverage provided by a risk retention group for — (A) such group; or (B) any person who is a member of such group; (2) the sale of pollution liability insurance coverage for a risk retention group; and 318 140 (3) the provision of insurance related services or management services for a risk retention group or any member of such a group. (d) Agents or Brokers. — A State may require that a person acting, or offering to act, as an agent or broker for a risk retention group obtain a license from that State, except that a State may not impose any qualification or requirement which discriminates against a nonresident agent or broker. SEC. 404. PURCHASING GROUPS. (a) Exemption. — Except as provided in this section, a purchasing group is exempt from the following: (1) A State law, rule, or order which prohibits the establish- ment of a purchasing group. (2) A State law, rule, or order which makes it unlawful for an insurer to provide or offer to provide insurance on a basis providing, to a purchasing group or its member, advantages, based on their loss and expense experience, not afforded to other persons with respect to rates, policy forms, coverages, or other matters. (3) A State law, rule, or order which prohibits a purchasing group or its members from purchasing insurance on the group basis described in paragraph (2) of this subsection. (4) A State law, rule, or order which prohibits a purchasing group from obtaining insurance on a group basis because the group has not been in existence for a minimum period of time or because any member has not belonged to the group for a min- imum period of time. (5) A State law, rule, or order which requires that a purchas- ing group must have a minimum number of members, common ownership or affiliation, or a certain legal form. (6) A State law, rule, or order which requires that a certain percentage of a purchasing group must obtain insurance on a group basis. (7) A State law, rule, or order which requires that any insur- ance policy issued to a purchasing group or any members of the group be countersigned by an insurance agent or broker residing in that State. (8) A State law, rule, or order which otherwise discriminate against a purchasing group or any of its members. (b) Application of Exemptions. — The exemptions specified in subsection (a) apply to the following: (1) Pollution liability insurance, and comprehensive general liability insurance which includes this coverage, provided to — (A) a purchasing group; or (B) any person who is a member of a purchasing group. (2) The sale of any one of the following to a purchasing group or a member of the group: (A) Pollution liability insurance and comprehensive gen- eral liability coverage. (B) Insurance related services. (C) Management services. (c) Agents or Brokers.— A State may require that a person acting, or offering to act, as an agent or broker for a purchasing 319 141 group obtain a license from that State, except that a State may not impose any qualification or requirement which discriminates against a nonresident agent or broker. SEC. 405. APPLICABILITY OF SECURITIES LA WS. (a) Ownership Interests. — The ownership interests of members of a risk retention group shall be considered to be — (V exempted securities for purposes of section 5 of the Securi- ties Act of 1933 and for purposes of section 12 of the Securities Exchange Act of 1934; and (2) securities for purposes of the provisions of section 17 of the Securities Act of 1933 and the provisions of section 10 of the Se- curities Exchange Act of 1934- (b) Investment Company Act. — A risk retention group shall not be considered to be an investment company for purposes of the In- vestment Company Act of 1940 (15 U.S.C 80a-l et seq.). (c) Blue Sky Law. — The ownership interests of members in a risk retention group shall not be considered securities for purposes of any State blue sky law. 321 PROVISIONS OF THE SUPERFUND AMENDMENTS AND RE- AUTHORIZATION ACT OF 1986 (P.L. 99-499) WHICH DO NOT AMEND PUBLIC LAW 96-510 (CERCLA) SEC. 118. MISCELLANEOUS PROVISIONS. (b) Removal and Temporary Storage of Containers of Radon Contaminated Soil.— Not later than 90 days after the enactment of this Act, the Administrator shall make a grant of $7,500,000 to the State of New Jersey for transportation from residential areas in the State of New Jersey and temporary storage of approximately 14,000 containers of radon contaminated soil which is the subject of a remedial action for which a remedial investigation and feasibility study has been initiated before such date. Such containers shall be transported to and temporarily stored at any site in the State of New Jersey designated by the Governor of such State. For purposes of section 111(a) of CERCLA, the grant under this subsection for transportation and storage of such containers shall be treated as payment of governmental response cost incurred pursuant to sec- tion 104 of CERCLA. (c) Unconsolidated Quaternary Aquifer. — Notwithstanding any other provision of law, no person may — (1) locate or authorize the location of a landfill, surface im- poundment, waste pile, injection well, or land treatment facili- ty over the Unconsolidated Quaternary Aquifer, or the re- charge zone or streamflow source zone of such aquifer, in the Rockaway River Basin, New Jersey (as such aquifer and zones are described in the Federal Register, January 24, 1984, pages 2946-2948); or (2) place or authorize the placement of solid waste in a land- fill, surface impoundment, waste pile, injection well, or land treatment facility over such aquifer or zone. This subsection may be enforced under sections 309 (a) and (b) of the Federal Water Pollution Control Act. For purposes of section 309(c) of such Act, a violation of this subsection shall be considered a violation of section 301 of such Act. (d) Study of Shortages of Skilled Personnel.— The Comptrol- ler General shall study the problem of shortages of skilled person- nel in the Environmental Protection Agency to carry out response actions under CERCLA. In particular the Comptroller General shall study — (1) the types of skilled personnel needed for response actions for which there are shortages in the Environmental Protection Agency, (2) the extent of such shortages, (143) 322 144 (3) pay differential between the public and private sectors for the skilled positions involved in response actions, (4) the extent to which skilled personnel of Federal and State governments involved in response actions are leaving their po- sitions for employment in the private sector, (5) the success of programs of the Department of Defense and the Office of Personnel Management in retaining skilled per- sonnel, and (6) the types of training required to improve the skills of em- ployees carrying out response actions. The Comptroller General shall complete the study required by this subsection and submit a report on the results thereof to Congress not later than July 1, 1987. (e) State Requirements Not Applicable to Certain Trans- fers.— No State or local requirement shall apply to the transfer and disposal of any hazardous substance or pollutant or contami- nant from a facility at which a release or threatened release has occurred to a facility for which a final permit under section 3005(a) of the Solid Waste Disposal Act is in effect if the following condi- tions apply — (1) Such permit was issued after January 1, 1983, and before November 1, 1984. (2) The transfer and disposal is carried out pursuant to a co- operative agreement between the Administrator and the State. (3) The facility at which the release or threatened release has occurred is identified as the McColl Site in Fullerton, Cali- fornia. The terms used in this section shall have the same meaning as when used in title I of CERCLA. (f) Study of Lead Poisoning in Children.— (1) The Administra- tor of the Agency for Toxic Substances and Disease Registry shall, in consultation with the Administrator of the Environmental Pro- tection Agency and other officials as appropriate, not later than March 1, 1987, submit to the Congress, a report on the nature and extent of lead poisoning in children from environmental sources. Such report shall include, at a minimum, the following informa- tion — (A) an estimate of the total number of children, arrayed ac- cording to Standard Metropolitan Statistical Area or other ap- propriate geographic unit, exposed to environmental sources of lead at concentrations sufficient to cause adverse health ef- fects; (B) an estimate of the total number of children exposed to environmental sources of lead arrayed according to source or source types; (C) a statement of the long term consequences for public health of unabated exposures to environmental sources of lead and including but not limited to, diminution in intelligence, in- creases in morbidity and mortality; and (D) methods and alternatives available for reducing expo- sures of children to environmental sources of lead. (2) Such report shall also score and evaluate specific sites at which children are known to be exposed to environmental sources 323 145 of lead due to releases, utilizing the Hazard Ranking system of the National Priorities List. (3) The costs of preparing and submitting the report required by this section shall be borne by the Hazardous Substance Superfund established under subchapter A of chapter 98 of Internal Revenue Code of 1954. (g) Federally Licensed Dam. — For purposes of CERCLA in the case of the Milltown Dam in the State of Montana licensed under part 1 of the Federal Power Act and designated as FERC license number 2543-004, if a hazardous substance, pollutant, or contami- nant — (1) has been released into the environment upstream of the dam, and (2) has subsequently come to be located in the reservoir cre- ated by such dam notwithstanding section 101(20) of such Act, the term ''owner or op- erator" does not include the owner or operator of the dam unless such owner or operator is a person who would otherwise be liable for such release or threatened release under section 107 of such Act. (h) Community Relocation at Times Beach Site.— For purposes of any Missouri dioxon site at which a temporary or permanent re- location decision has been made, or is under active consideration, by the Administrator as of the enactment of this Act, the terms "remove" and "removal" as used in CERCLA shall be deemed to include the costs of permanent relocation of residents where it is determined that such permanent relocation is cost effective or may be necessary to protect health or welfare. In the case of a business located in an area of evacuation or relocation at such facility, such terms may also include the payment of those installments of princi- pal and interest on business debt which accrue between the date of evacuation or temporary relocation and 30 days following the date that permanent relocation is actually accomplished or, if perma- nent relocation is formally rejected as the appropriate response, the date on which evacuation or temporary relocation ceases. In the case of an individual unemployed as a result of such evacuation or relocation, such terms may also include the provision of assist- ance identical to that authorized by sections 407, 408, and 409 of the Disaster Relief Act of 1974; except that the costs of such assist- ance shall be paid from the Trust Fund established under amend- ments made to the Internal Revenue Code of 1954 by this Act. Sec- tion 104(c)(1) of CERCLA shall not apply to obligations from the Fund for permanent relocation under this paragraph. (i) Limited Waivers in State of Illinois. — (1) Mobile incinerators. — In the case of remedial actions specifically involving mobile incinerator units in the State of Illinois, if such remedial actions are undertaken by the State under the authority of a State Superfund law or equivalent au- thority, the State may, with the approval of the Administrator, waive any permit requirement under subtitle C of the Solid Waste Disposal Act which would be otherwise applicable to such action to the extent that the following conditions are met: (A) No TRANSFER. — The incinerator does not involve the transfer of a hazardous substance or pollutant or contami- 324 146 nant from the facility at which the release or threatened release occurs to an offsite facility. (B) Remedial action. — The remedial action provides each of the following: (i) Changes in the character or composition of the hazardous substance or pollutant or contaminant con- cerned so that it no longer presents a risk to public health. (ii) Protection against accidental emissions during operation. (iii) Protection of public health considering the mul- timedia impacts of the treatment process. (C) PuBUC PARTICIPATION. — The State provides proce- dures for public participation regarding the response action which are at least equivalent to the level of public participation procedures applicable under CERCLA and under the Solid Waste Disposal Act. (2) Effect of waiver. — The waiver of any permit require- ment under this subsection shall not be construed to waive any standard or level of control which — (A) is applicable to any hazardous substance or pollutant or contaminant involved in the remedial action; and (B) would otherwise be contained in the permit. Such waiver of any permit requirement under subtitle C of the Solid Waste Disposal Act shall only apply to the extent that the facility or remedial action involves the onsite treatment with a mobile incineration unit of waste present at such site. The waiver shall not apply to any other regulated or potential- ly regulated activity, including the use of the mobile inciner- ation unit for actions not authorized by the State. (3) Expiration of authority. — The authority of this subsec- tion shall terminate at the end of 3 years, unless the State demonstrates, to the satisfaction of the Administrator, that the operation of mobile incinerators in the State has sufficiently protected public health and the environment and is consistent with the criteria required for a permit under subtitle C of the Solid Waste Disposal Act. (j) Study of Joint Use of Trucks.— (1) Study.— The Administrator, in consultation with the Sec- retary of Transportation, shall conduct a study of problems as- sociated with the use of any vehicle for purposes other than the transportation of hazardous substances when that vehicle is used at other times for the transportation of hazardous sub- stances. At a minimum, the Administrator shall consider — (A) whether such joint use of vehicles should be prohibit- ed, and (B) whether, if such joint use is permitted, special safe- guards should be taken to minimize threats to public health and the environment. (2) Report.— The Administrator shall submit a report, along with recommendations, to Congress on the results of the study conducted under paragraph (1) not later than 180 days after the date of the enactment of this Act. (k) Radon Assessment and Mitigation. — i 325 147 (1) National assessment of radon gas. — No later than one year after the enactment of this Act, the Administrator shall submit to the Congress a report which shall, to the extent pos- sible — (A) identify the locations in the United States where radon is found in structures where people normally live or work, including educational institutions; (B) assess the levels of radon gas that are present in such structures; (C) determine the level of radon gas and radon daugh- ters which poses a threat to human health and assess for each location identified under subparagraph (A) the extent of the threat to human health; (D) determine methods of reducing or eliminating the threat to human health of radon gas and radon daughters; and (E) include guidance and public information materials based on the findings or research of mitigating radon. (2) Radon mitigation demonstration program.— (A) Demonstration program. — The Administrator shall conduct a demonstration program to test methods and technologies of reducing or eliminating radon gas and radon daughters where it poses a threat to human health. The Administrator shall take into consideration any dem- onstration program underway in the Reading Prong of Pennsylvania, New Jersey, and New York and at other sites prior to enactment. The demonstration program under this section shall be conducted in the Reading Prong, and at such other sites as the Administrator consid- ers appropriate. (B) Annual reports. — The Administrator shall submit annual reports not later than February 1 of each year (be- ginning February 1, 1987) on the status of the demonstra- tion program carried out under this subsection and on any such demonstration program initiated prior to enactment. (C) Liability. — Liability, if any, for persons undertaking activities pursuant to the radon mitigation demonstration program authorized under this subsection shall be deter- mined under principles of existing law. (3) Construction of section. — Nothing in this subsection shall be construed to authorize the Administrator to carry out any regulatory program or any activity other than research, development, and related reporting, information dissemination, and coordination activities specified in this subsection. Nothing in paragraph (1) or (2) shall be construed to limit the authority of the Administrator or of any other agency or instrumentality of the United States under any other authority of law. (1) Gulf Coast Hazardous Substance Research, Development, AND Demonstration Center.— (1) Establishment of hazardous substance research, de- velopment, AND demonstration CENTER.— The Administrator shall establish a hazardous substance research, development, and demonstration center (hereinafter in this subsection re- ferred to as the "Center") for the purpose of conducting re- 326 148 response search to aid in more effective hazardous substance and waste management throughout the Gulf Coast. (2) Purposes of the center.— The Center shall carry out a program of research, evaluation, testing, development, and demonstration of alternative or innovative technologies which may be utilized in response actions or in normal handling of hazardous wastes to achieve better protection of human health and the environment. (3) Operation of center.— (A) For purposes of operating the Center, the Administrator is authorized to enter into contracts and cooperative agreements with, and make grants to, a uni- versity related institute involved with the improvement of waste management. Such institute shall be located in Jefferson County, Texas. (B) The Center shall be authorized to make grants, accept contributions, and enter into agreements with universities lo- cated in the States of Texas, Louisiana, Mississippi, Alabama, and Florida in order to carry out the purposes of the Center. (4) Authorization of appropriations.— There are author- ized to be appropriated to the Administrator for purposes of carrying out this subsection for fiscal years beginning after September 30, 1986, not more than $5,000,000. (m) Radon Protection at Current National Priorities List Sites.— It is the sense of the Congress that the President, in select- ing response action for facilities included on the National Priorities List published under section 105 of the Comprehensive Environ- mental Response, Compensation, and Liability Act of 1980 because of the presence of radon, is not required by statute or regulations to use fully demonstrated methods, particularly those involving the offsite transport and disposition of contaminated material, but may use innovative or alternative methods which protect human health and the environment in a more cost-effective manner. (n) Spill Control Technology. — (1) Establishment of program.— Within 180 days of enact- ment of this subsection, the Secretary of the United States De- partment of Energy is directed to carry out a program of test- ing and evaluation of technologies which may be utilized in re- sponding to liquefied gaseous and other hazardous substance spills at the Liquefied Gaseous Fuels Spill Test Facility that threaten public health or the environment. (2) Technology transfer. — In carrying out the program es- tablished under this subsection, the Secretary shall conduct a technology transfer program that, at a minimum — (A) documents and archives spill control technology; (B) investigates and analyzes significant hazardous spill incidents; (C) develops and provides generic emergency action plans; (D) documents and archives spill test results; (E) develops emergency action plans to respond to spills; (F) conducts training of spill response personnel; and (G) establishes safety standards for personnel engaged in spill response activities. 327 149 (3) Contracts and grants.— The Secretary is directed to enter into contracts and grants with a nonprofit organization in Albany County, Wyoming, that is capable of providing the necessary technical support and which is involved in environ- mental activities related to such hazardous substance related emergencies. (4) Use of site. — The Secretary shall arrange for the use of the Liquefied Gaseous Fuels Spill Test Facility to carry out the provisions of this subsection. (o) Pacific Northwest Hazardous Substance Research, Devel- opment, and Demonstration Center.— (1) Establishment.— The Administrator shall establish a hazardous substance research, development, and demonstra- tion center (hereinafter in this subsection referred to as the "Center") for the purpose of conducting research to aid in more effective hazardous substance response in the Pacific Northwest. (2) Purposes of center.— The Center shall carry out a pro- gram of research, evaluation, testing, development, and demon- stration of alternative or innovative technologies which may be utilized in response actions to achieve more permanent protec- tion of human health and welfare and the environment. (3) Operation of center. — (A) Nonprofit entity. — For the purposes of operating the Center, the Administrator is authorized to enter into contracts and cooperative agreements with, and make grants to, a nonprofit private entity as defined in section [201(i) of Public Law 96-517 Citation Not Correct] which entity shall agree to provide the basic technical and man- agement personnel. Such nonprofit private entity shall also agree to provide at least two permanent research fa- cilities, one of which shall be located in Benton County, Washington, and one of which shall be located in Clallam County, Washington. (B) Authorities.— The Center shall be authorized to make grants, accept contributions, and enter into agree- ments with universities located in the States of Washing- ton, Oregon, Idaho, and Montana in order to carry out the purposes of the Center. (4) Hazardous waste research at the hanford site. — (A) Interagency agreements.— The Administrator and the Secretary of Energy are authorized to enter into inter- agency agreements with one another for the purpose of providing for research, evaluation, testing, development, and demonstration into alternative or innovative technol- ogies to characterize and assess the nature and extent of hazardous waste (including radioactive mixed waste) con- tamination at the Hanford site, in the State of Washing- ton. (B) Funding. — There is authorized to be appropriated to the Secretary of Energy for purposes of carrying out this paragraph for fiscal years beginning after September 30, 1986, not more than $5,000,000. All sums appropriated under this subparagraph shall be provided to the Adminis- 328 150 trator by the Secretary of Energy, pursuant to the inter- agency agreement entered into under subparagraph (A), for the purpose of the Administrator entering into con- tracts and cooperative agreements with, and making grants to, the Center in order to carry out the research, evaluation, testing, development, and demonstration de- scribed in paragraph (1). (5) Authorization of appropriations.— There is authorized to be appropriated to the Administrator for purposes of carry- ing out this subsection (other than paragraph (4)) for fiscal years beginning after September 30, 1986, not more than $5,000,000. (p) Silver Creek Taiungs.— Effective with the date of enactment of this Act, the facility listed in Group 7 in EPA National Priorities List Update #4 (50 Federal Register 37956, September 18, 1985), the site in Park City, Utah, which is located on tailings from non- coal mining operations, shall be deemed removed from the list of sites recommended for inclusion on the National Priorities List, unless the President determines upon site specific data not used in the proposed listing of such facility, that the facility meets require- ments of the Hazard Ranking System or any revised Hazard Rank- ing System. SEC. 120. FEDERAL FACILITIES. (b) Limited Grandfather.— Section 120 of CERCLA shall not apply to any response action or remedial action for which a plan is under development by the Department of Energy on the date of en- actment of this Act with respect to facilities — (1) owned or operated by the United States and subject to the jurisdiction of such Department; (2) located in St. Charles and St. Louis counties, Missouri, or the city of St. Louis, Missouri, and (3) published in the National Priorities List. In preparing such plans, the Secretary of Energy shall consult with the Administrator of the Environmental Protection Agency. SEC. 12L CLEANUP STANDARDS. (b) Effective Date.— With respect to section 121 of CERCLA, as added by this section — (1) The requirements of section 121 of CERCLA shall not apply to any remedial action for which the Record of Decision (hereinafter in this section referred to as the "ROD") was signed, or the consent decree was lodged, before date of enact- ment. (2) If the ROD was signed, or the consent decree lodged, within the 30-day period immediately following enactment of the Act, the Administrator shall certify in writing that the portion of the remedial action covered by the ROD or consent decree complies to the maximum extent practicable with sec- tion 121 of CERCLA. Any ROD signed before enactment of this Act and reopened after enactment of this Act to modify or supplement the selection of 329 151 remedy shall be subject to the requirements of section 121 of CERCLA. SEC. 124. METHANE RECOVERY. (b) Regulation Under the Soud Waste Disposal Act. — Unless the Administrator of the Environmental Protection Agency pro- mulgates regulations under subtitle C of the Solid Waste Disposal Act addressing the extraction of wastes from landfills as part of the process of recovering methane from such landfills, the owner and operator of equipment used to recover methane from a landfill shall not be deemed to be managing, generating, transporting, treating, storing, or disposing of hazardous or liquid wastes within the meaning of that subtitle. If the aqueous or hydrocarbon phase of the condensate or any other waste material removed from the gas recovered from the landfill meets any of the characteristics identified under section 3001 of subtitle C of the Solid Waste Dis- posal Act, the preceding sentence shall not apply and such conden- sate phase or other waste material shall be deemed a hazardous waste under that subtitle, and shall be regulated accordingly. SEC. 126. WORKER PROTECTION STANDARDS. (a) Promulgation. — Within one year after the date of the enact- ment of this section, the Secretary of Labor shall, pursuant to sec- tion 6 of the Occupational Safety and Health Act of 1970, promul- gate standards for the health and safety protection of employees engaged in hazardous waste operations. (b) Proposed Standards. — The Secretary of Labor shall issue proposed regulations on such standards which shall include, but need not be limited to, the following worker protection provisions: (1) Site analysis. — Requirements for a formal hazard analy- sis of the site and development of a site specific plan for worker protection. (2) Training. — Requirements for contractors to provide ini- tial and routine training of workers before such workers are permitted to engage in hazardous waste operations which would expose them to toxic substances. (3) Medical surveillance. — A program of regular medical examination, monitoring, and surveillance of workers engaged in hazardous waste operations which would expose them to toxic substances. (4) Protective equipment. — Requirements for appropriate personal protective equipment, clothing, and respirators for work in hazardous waste operations. (5) Engineering controls.— Requirements for engineering controls concerning the use of equipment and exposure of workers engaged in hazardous waste operations. (6) Maximum exposure umits. — Requirements for maximum exposure limitations for workers engaged in hazardous waste operations, including necessary monitoring and a^^ssment procedures. ^ (7) Informational program.— A program to inform workers engaged in hazardous waste operations of the nature and 330 152 degree of toxic exposure likely as a result of such hazardous waste operations. (8) Handling.— Requirements for the handling, transporting, labeling, and disposing of hazardous wastes. (9) New technology program.— A program for the introduc- tion of new equipment or technologies that will maintain worker protections. (10) Decontamination procedures.— Procedures for decon- tamination. (11) Emergency ?iesponse.— Requirements for emergency re- sponse and protection of workers engaged in hazardous waste operations. (c) Final Regulations.— Final regulations under subsection (a) shall take effect one year after the date they are promulgated. In promulgating final regulations on standards under subsection (a), the Secretary of Labor shall include each of the provisions listed in paragraphs (1) through (11) of subsection (b) unless the Secretary determines that the evidence in the public record considered as a whole does not support inclusion of any such provision. (d) Specific Training Standards.— (1) Offsite instruction; field experience.— Standards pro- mulgated under subsection (a) shall include training standards requiring that general site workers (such as equipment opera- tors, general laborers, and other supervised personnel) engaged in hazardous substance removal or other activities which expose or potentially expose such workers to hazardous sub- stances receive a minimum of 40 hours of initial instruction off the site, and a minimum of three days of actual field experi- ence under the direct supervision of a trained, experienced su- pervisor, at the time of assignment. The requirements of the preceding sentence shall not apply to any general site worker who has received the equivalent of such training. Workers who may be exposed to unique or special hazards shall be provided additional training. (2) Training of supervisors.— Standards promulgated under subsection (a) shall include training standards requiring that onsite managers and supervisors directly responsible for the hazardous waste operations (such as foremen) receive the same training as general site workers set forth in paragraph (1) of this subsection and at least eight additional hours of special- ized training on managing hazardous waste operations. The re- quirements of the preceding sentence shall not apply to any person who has received the equivalent of such training. (3) Certification; enforcement.— Such training standards shall contain provisions for certifying that general site work- ers, onsite managers, and supervisors have received the speci- fied training and shall prohibit any individual who has not re- ceived the specified training from engaging in hazardous waste operations covered by the standard. (4) Training of emergency response personnel. — Such training standards shall set forth requirements for the training of workers who are responsible for responding to hazardous emergency situations who may be exposed to toxic substances in carrying out their responsibilities. 331 153 (e) Interim Regulations.— The Secretary of Labor shall issue in- terim final regulations under this section within 60 days after the enactment of this section which shall provide no less protection under this section for workers employed by contractors and emer- gency response workers than the protections contained in the Envi- ronmental Protection Agency Manual (1981) ''Health and Safety Requirements for Employees Engaged in Field Activities" and ex- isting standards under the Occupational Safety and Health Act of 1970 found in subpart C of part 1926 of title 29 of the Code of Fed- eral Regulations. Such interim final regulations shall take effect upon issuance and shall apply until final regulations become effec- tive under subsection (c). (f) Coverage of Certain State and Local Employees.— Not later than 90 days after the promulgation of final regulations under subsection (a), the Administrator shall promulgate standards identical to those promulgated by the Secretary of Labor under subsection (a). Standards promulgated under this subsection shall apply to employees of State and local governments in each State which does not have in effect an approved State plan under section 18 of the Occupational Safety and Health Act of 1970 providing for standards for the health and safety protection of employees en- gaged in hazardous waste operations. (g) Grant Program.— (1) Grant purposes. — Grants for the training and education of workers who are or may be engaged in activities related to hazardous waste removal or containment or emergency re- sponse may be made under this subsection. (2) Administration.— Grants under this subsection shall be administered by the National Institute of Environmental Health Sciences. (3) Grant recipients.— Grants shall be awarded to nonprofit organizations which demonstrate experience in implementing and operating worker health and safety training and education programs and demonstrate the ability to reach and involve in training programs target populations of workers who are or will be engaged in hazardous waste removal or containment or emergency resppnse operations. SEC. 127. LIABILITY LIjMITS FOR OCEAN INCINERATION VESSELS. (d) Savings Clause.— Section 106 of the Marine Protection, Re- search, and Sanctuaries Act of 1972 is amended by adding the fol- lowing new subsection at the end thereof: "(h) Savings Clause.— Nothing in this Act shall restrict, affect or modify the rights of any person (1) to seek damages or enforce- ment of any standard or limitation under State law, including State common law, or (2) to seek damages under other Federal law, including maritime tort law, resulting from noncompliance with any requirement of this Act or any permit under this Act.". SEC. 203. STATE PROCEDURAL REFORM. 332 154 (b) Effective Date. — The amendment made by subsection (a) of this section shall take effect with respect to actions brought after December 11, 1980. SEC. 205. CLEANUP OF PETROLEUM FROM LEAKING UNDERGROUND STORAGE TANKS. (a) Definition of Petroleum. — Section 9001(2XB) of the Solid Waste Disposal Act is amended by striking out all that follows "pe- troleum" and inserting in lieu thereof a period. Section 9001 of such Act is amended by adding at the end thereof the following: "(8) The term "petroleum" means petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute). (b) State Inventories. — Section 9002 of the Solid Waste Disposal Act is amended by adding the following new subsection at the end thereof: "(c) State Inventories. — Each State shall make 2 separate in- ventories of all underground storage tanks in such State containing regulated substances. One inventory shall be made with respect to petroleum and one with respect to other regulated substances. In making such inventories, the State shall utilize and aggregate the data in the notification forms submitted pursuant to subsections (a) and (b) of this section. Each State shall submit such aggregated data to the Administrator not later than 270 days after the enact- ment of the Superfund Amendments and Reauthorization Act of 1986. (c) Financial Responsibiuty.— (1) Requirements.— Section 9003(c) of the Solid Waste Dis- posal Act is amended by striking "and" at the end of para- graph (4), striking the period at the end of paragraph (5) and substituting "; and" and by adding the following new para- graph at the end thereof: "(6) requirements for maintaining evidence of financial re- sponsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from operat- ing an underground storage tank". (2) Conforming amendment.— Section 9003(d) of such Act is amended by striking out paragraph (1) and renumbering para- graphs (2) through (5) as paragraphs (1) through (4), respective- ly. (3) Other methods.— Section 9003(d)(1) of such Act (as redes- ignated by paragraph (2) of this subsection) is amended by striking out "or" after "credit," and by striking out the period at the end thereof and inserting in lieu thereof the following: "or any other method satisfactory to the Administrator.". (4) Section 9003(d) of such Act is further amended by adding at the end thereof the following new paragraph: "(5)(A) The Administrator, in promulgating financial respon- sibility regulations under this section, may establish an amount of coverage for particular classes or categories of un- derground storage tanks containing petroleum which shall sat- isfy such regulations and which shall not be less than 333 155 $1,000,000 for each occurrence with an appropriate aggregate requirement. ''(B) The Administrator may set amounts lower than the amounts required by subparagraph (A) of this paragraph for underground storage tanks containing petroleum which are at facilities not engaged in petroleum production, refining, or marketing and which are not used to handle substantial quan- tities of petroleum. "(C) In establishing classes and categories for purposes of this paragraph, the Administrator may consider the following factors: "(i) The size, type, location, storage, and handling capac- ity of underground storage tanks in the class or category and the volume of petroleum handled by such tanks. '*(ii) The likelihood of release and the potential extent of damage from any release from underground storage tanks in the class or category. *'(iii) The economic impact of the limits on the owners and operators of each such class or category, particularly relating to the small business segment of the petroleum marketing industry. "(iv) The availability of methods of financial responsibil- ity in amounts greater than the amount established by this paragraph. "(v) Such other factors as the Administrator deems per- tinent. "(D) The Administrator may suspend enforcement of the fi- nancial responsibility requirements for a particular class or category of underground storage tanks or in a particular State, if the Administrator makes a determination that methods of fi- nancial responsibility satisfying the requirements of this sub- section are not generally available for underground storage tanks in that class or category, and — "(i) steps are being taken to form a risk retention group for such class of tanks; or "(ii) such State is taking steps to establish a fund pursu- ant to section 9004(c)(1) of this Act to be submitted as evi- dence of financial responsibility. A suspension by the Administrator pursuant to this paragraph shall extend for a period not to exceed 180 days. A determina- tion to suspend may be made with respect to the same class or category or for the same State at the end of such period, but only if substantial progress has been made in establishing a risk retention group, or the owners or operators in the class or category demonstrate, and the Administrator finds, that the formation of such a group is not possible and that the State is unable or unwilling to establish such a fund pursuant to clause (ii).". (d) EPA Response Program.— Section 9003 of the Solid Waste Disposal Act is amended by adding after subsection (g) the follow- ing new subsection: "(h) EPA Response Program for Petroleum.— 334 156 "(1) Before regulations. — Before the effective date of regu- lations under subsection (c), the Administrator (or a State pur- suant to paragraph (7)) is authorized to— "(A) require the owner or operator of an underground storage tank to undertake corrective action with respect to any release of petroleum when the Administrator (or the State) determines that such corrective action will be done properly and promptly by the owner or operator of the un- derground storage tank from which the release occurs; or "(B) undertake corrective action with respect to any re- lease of petroleum into the environment from an under- ground storage tank if such action is necessary, in the judgment of the Administrator (or the State), to protect human health and the environment. The corrective action undertaken or required under this para- graph shall be such as may be necessary to protect human health and the environment. The Administrator shall use funds in the Leaking Underground Storage Tank Trust Fund for payment of costs incurred for corrective action under sub- paragraph (B), enforcement action under subparagraph (A), and cost recovery under paragraph (6) of this subsection. Sub- ject to the priority requirements of paragraph (3), the Adminis- trator (or the State) shall give priority in undertaking such ac- tions under subparagraph (B) to cases where the Administrator (or the State) cannot identify a solvent owner or operator of the tank who will undertake action properly. "(2) After regulations.— Following the effective date of reg- ulations under subsection (c), all actions or orders of the Ad- ministrator (or a State pursuant to paragraph (7)) described in paragraph (1) of this subsection shall be in conformity with such regulations. Following such effective date, the Adminis- trator (or the State) may undertake corrective action with re- spect to any release of petroleum into the environment from an underground storage tank only if such action is necessary, in the judgment of the Administrator (or the State), to protect human health and the environment and one or more of the fol- lowing situations exists: "(A) No person can be found, within 90 days or such shorter period as may be necessary to protect human health and the environment, who is— "(i) an owner or operator of the tank concerned, "(ii) subject to such corrective action regulations, and "(iii) capable of carrying out such corrective action properly. "(B) A situation exists which requires prompt action by the Administrator (or the State) under this paragraph to protect human health and the environment. "(C) Corrective action costs at a facility exceed the amount of coverage required by the Administrator pursu- ant to the provisions of subsections (c) and (dX5) of this sec- tion and, considering the class or category of underground storage tank from which the release occurred, expendi- 335 157 tures from the Leaking Underground Storage Tank Trust Fund are necessary to assure an effective corrective action. "(D) The owner or operator of the tank has failed or re- fused to comply with an order of the Administrator under this subsection or section 9006 or with the order of a State under this subsection to comply with the corrective action regulations. "(3) Priority of corrective actions. — The Administrator (or a State pursuant to paragraph (7)) shall give priority in under- taking corrective actions under this subsection, and in issuing orders requiring owners or operators to undertake such ac- tions, to releases of petroleum from underground storage tanks which pose the greatest threat to human health and the envi- ronment. "(4) Corrective action orders. — The Administrator is au- thorized to issue orders to the owner or operator of an under- ground storage tank to carry out subparagraph (A) of para- graph (1) or to carry out regulations issued under subsection (c)(4). A State acting pursuant to paragraph (7) of this subsec- tion is authorized to carry out subparagraph (A) of paragraph (1) only until the State's program is approved by the Adminis- trator under section 9004 of this subtitle. Such orders shall be issued and enforced in the same manner and subject to the same requirements as orders under section 9006. ''(5) Allowable corrective actions. — The corrective actions undertaken by the Administrator (or a State pursuant to para- graph (7)) under paragraph (1) or (2) may include temporary or permanent relocation of residents and alternative household water supplies. In connection with the performance of any cor- rective action under paragraph (1) or (2), the Administrator may undertake an exposure assessment as defined in para- graph (10) of this subsection or provide for such an assessment in a cooperative agreement with a State pursuant to paragraph (7) of this subsection. The costs of any such assessment may be treated as corrective action for purposes of paragraph (6), relat- ing to cost recovery. "(6) Recovery of costs.— "(A) In general.— Whenever costs have been incurred by the Administrator, or by a State pursuant to paragraph (7), for undertaking corrective action or enforcement action with respect to the release of petroleum from an un- derground storage tank, the owner or operator of such tank shall be liable to the Administrator or the State for such costs. The liability under this paragraph shall be con- strued to be the standard of liability which obtains under section 311 of the Federal Water Pollution Control Act. '\B) Recovery. — In determining the equities for seeking the recovery of costs under subparagraph (A), the Adminis- trator (or a State pursuant to paragraph (7) of this subsec- tion) may consider the amount of financial responsibility required to be maintained under subsections (c) and (d)(5) of this section and the factors considered in establishing such amount under subsection (d)(5). "(C) Effect on liabiuty.— 75-032 0-90-12 336 158 "(i) No TRANSFERS OF UABiUTY. — No indemnifica- tion, hold harmless, or similar agreement or convey- ance shall be effective to transfer from the owner or operator of any underground storage tank or from any person who may be liable for a release or threat of re- lease under this subsection, to any other person the li- ability imposed under this subsection. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section. "(ii) No BAR TO CAUSE OF ACTION.— Nothing in this subsection, including the provisions of clause (i) of this subparagraph, shall bar a cause of action that an owner or operator or any other person subject to li- ability under this section, or a guarantor, has or would have, by reason of subrogation or otherwise against any person. "(D) Facility. — For purposes of this paragraph, the term 'facility' means, with respect to any owner or operator, all underground storage tanks used for the storage of petrole- um which are owned or operated by such owner or opera- tor and located on a single parcel of property (or on any contiguous or adjacent property). "(7) State authorities.— "(A) General.— A State may exercise the authorities in paragraphs (1) and (2) of this subsection, subject to the terms and conditions of paragraphs (3), (5), (9), (10), and (11), and including the authorities of paragraphs (4), (6), and (8) of this subsection if— "(i) the Administrator determines that the State has the capabilities to cariy out effective corrective actions and enforcement activities; and "(ii) the Administrator enters into a cooperative agreement with the State setting out the actions to be undertaken by the State. The Administrator may provide funds from the Leaking Underground Storage Tank Trust Fund for the reasonable costs of the State's actions under the cooperative agree- ment. "(B) Cost share.— Following the effective date of the regulations under subsection (c) of this section, the State shall pay 10 per centum of the cost of corrective actions undertaken either by the Administrator or by the State under a cooperative agreement, except that the Adminis- trator may take corrective action at a facility where imme- diate action is necessary to respond to an imminent and substantial endangerment to human health or the environ- ment if the State fails to pay the cost share. "(8) Emergency procurement powers.— Notwithstanding any other provision of law, the Administrator may authorize the use of such emergency procurement powers as he deems necessary. "(9) Definition of owner.— As used in this subsection, the term 'owner' does not include any person who, without partici- 337 159 pating in the managenient of an underground storage tank and otherwise not engaged in petroleum production, refining, and marketing, holds indicia of ownership primarily to protect the owner's security interest in the tank. "(10) Definition of exposure assessment. — As used in this subsection, the term 'exposure assessment' means an assess- ment to determine the extent of exposure of, or potential for exposure of, individuals to petroleum from a release from an underground storage tank based on such factors as the nature and extent of contamination and the existence of or potential for pathways of human exposure (including ground or surface water contamination, air emissions, and food chain contamina- tion), the size of the community within the likely pathways of exposure, and the comparison of expected human exposure levels to the short-term and long-term health effects associated with identified contaminants and any available recommended exposure or tolerance limits for such contaminants. Such as- sessment shall not delay corrective action to abate immediate hazards or reduce exposure. *X11) Facilities without financial responsibility.— -At any facility where the owner or operator has failed to maintain evi- dence of financial responsibility in amounts at least equal to the amounts established by subsection (d)(5XA) of this section (or a lesser amount if such amount is applicable to such facili- ty as a result of subsection (d)(5)(B) of this section) for what- ever reason the Administrator shall expend no monies from the Leaking Underground Storage Tank Trust Fund to clean up releases at such facility pursuant to the provisions of para- graph (1) or (2) of this subsection. At such facilities the Admin- istrator shall use the authorities provided in subparagraph (A) of paragraph (1) and paragraph (4) of this subsection and sec- tion 9006 of this subtitle to order corrective action to clean up such releases. States acting pursuant to paragraph (7) of this subsection shall use the authorities provided in subparagraph (A) of paragraph (1) and paragraph (4) of this subsection to order corrective action to clean up such releases. Notwith- standing the provisions of this paragraph, the Administrator may use monies from the fund to take the corrective actions authorized by paragraph (5) of this subsection to protect human health at such facilities and shall seek full recovery of the costs of all such actions pursuant to the provisions of para- graph (6)(A) of this subsection and without consideration of the factors in paragraph (6)(B) of this subsection. Nothing in this paragraph shall prevent the Administrator (or a State pursu- ant to paragraph (7) of this subsection) from taking corrective action at a facility where there is no solvent owner or operator or where immediate action is necessary to respond to an immi- nent and substantial endangerment of human health or the en- vironment.", (e) Financial Responsibiuty in State Programs.— (1) Section 9004(c)(1) of the Solid Waste Disposal Act is amended by striking out "financed by fees on tank owners and operators and". 338 160 (2) Section 9004(cX2) of the Solid Waste Disposal Act is amended by striking out "or" after "credit," in the first sen- tence and by striking out the period at the end thereof and in- serting in lieu thereof the following: "or any other method sat- isfactory to the Administrator.". Such section is further amended by adding after the word "terms" in the second sen- tence the following: "including the amount of coverage re- quired for various classes and categories of underground stor- age tanks pursuant to section 9003(d)(5),". (f) Authority to Enter for Corrective Actions. — (1) Section 9005(a) of the Solid Waste Disposal Act is amend- ed by inserting the words "taking any corrective action" after the word "study", inserting the words "acting pursuant to sub- section (h)(7) of section 9003 or" after the words "or representa- tive of a State", striking the word "and" before the words "permit such officer", and inserting the words "and permit such officer to have access for corrective action" after the words "relating to such tanks" in the first sentence thereof. Such section is further amended by inserting the words "taking corrective action," after the word "study," in the second sentence thereof. (2) Section 9005(a) of the Solid Waste Disposal Act is amend- ed by striking the word "and" at the end of paragraph (2), in- serting the word "and" after paragraph (3) and adding the fol- lowing new paragraph — "(4) to take corrective action. (3) Section 9005 of the Solid Waste Disposal Act is amended by changing the heading thereof to read as follows — "inspections, monitoring, testing and corrective action". (g) Coordination With Other Laws.— Section 9008 of the Solid Waste Disposal Act is amended to read as follows: state authority "Sec. 9008. Nothing in this subtitle shall preclude or deny any right of any State or political subdivision thereof to adopt or en- force any regulation, requirement, or standard of performance re- specting underground storage tanks that is more stringent than a regulation, requirement, or standard of performance in effect under this subtitle or to impose any additional liability with re- spect to the release of regulated substances within such State or political subdivision. (h) Pollution Liabiuty Insurance.— (1) Study.'— The Comptroller General shall conduct a study of the availability of pollution liability insurance, leak insur- ance, and contamination insurance for owners and operators of petroleum storage and distribution facilities. The study shall assess the current and projected extent to which private insur- ance can contribute to the financial responsibility of owners and operators of underground storage tanks and the ability of owners and operators of underground storage tanks to main- tain financial responsibility through other methods. The study shall consider the experience of owners and operators of 339 161 marine vessels in getting insurance for their liabilities under the Federal Water Pollution Control Act and the operation of the Water Quality Insurance Syndicate. (2) Report.— The Comptroller General shall report the find- ings under this subsection to the Congress within 15 months after the enactment of this subsection. Such report shall in- clude recommendations for legislative or administrative changes that will enable owners and operators of underground storage tanks to maintain financial responsibility sufficient to provide all clean-up costs and damages that may result from reasonably foreseeable releases and events. (i) Criminal Penalties Relating to Used Oil.— Subtitle C of the Solid Waste Disposal Act is amended as follows: (1) In paragraphs (4) and (5) of section 3008(d) after "hazard- ous waste" insert **or any used oil not identified or listed as a hazardous waste under this subtitle". (2) Delete ''accompanied by a manifest; or" in paragraph (5) and insert ''accompanied by a manifest;". (3) Insert "; or" after paragraph (6). (4) Add the following new paragraph after paragraph (6): "(7) knowingly stores, treats, transports, or causes to be transported, disposes of, or otherwise handles any used oil not identified or listed as a hazardous waste under subtitle C of the Solid Waste Disposal Act — "(A) in knowing violation of any material condition or requirement of a permit under this subtitle C; or "(B) in knowing violation of any material condition or requirement of any applicable regulations or standards under this Act; (5) In section 3008(e): (A) Insert "or used oil not identified or listed as a haz- ardous waste under this subtitle" immediately after "this subtitle". (B) Strike "or" immediately before "(6)". (C) Insert ", or (7)" immediately after "(6)". (j) State Programs for Used Oil.— Section 3006 of the Solid Waste Disposal Act is amended by adding the following new sub- section at the end thereof: "(h) State Programs for Used Oil.— In the case of used oil which is not listed or identified under this subtitle as a hazardous waste but which is regulated under section 3014, the provisions of this section regarding State programs shall apply in the same manner and to the same extent as such provisions apply to hazard- ous waste identified or listed under this subtitle. SEC. 209. RESEARCH, DEVELOPMENT, AND DEMONSTRATION. (a) Purpose. — The purposes of this section are as follows: (1) To establish a comprehensive and coordinated Federal program of research, development, demonstration, and training for the purpose of promoting the development of alternative and innovative treatment technologies that can be used in re- sponse actions under the CERCLA program, to provide incen- tives for the development and use of such technologies, and to improve the scientific capability to assess, detect and evaluate 340 162 the effects on and risks to human health from hazardous sub- stances. (2) To establish a basic university research and education program within the Department of Health and Human Serv- ices and a research, demonstration, and training program within the Environmental Protection Agency. (3) To reserve certain funds from the Hazardous Substance Trust Fund to support a basic research program within the De- partment of Health and Human Services, and an applied and developmental research program within the Environmental Protection Agency. (4) To enhance the Environmental Protection Agency's inter- nal research capabilities related to CERCLA activities, includ- ing site assessment and technology evaluation. (5) To provide incentives for the development of alternative and innovative treatment technologies in a manner that sup- plements or coordinates with, but does not compete with or du- plicate, private sector development of such technologies. SEC. 211 DEPARTMENT OF DEFENSE ENVIRONMENTAL RESTORATION PROGRAM. (a) In General.— (1) Title 10, United States Code, is amended— (A) by redesignating section 2701 as section 2721; and (B) by inserting after chapter 159 the following new chapter: "CHAPTER 160— ENVIRONMENTAL RESTORATION "Sec. "2701. Environmental restoration program. "2702. Research, development, anci demonstration program. "2703. Environmental restoration transfer account. "2704. Commonly found unregulated hazardous substances. "2705. Notice of environmental restoration activities. "2706. Annual report to Congress. "2707. Definitions. "§ 2701. Environmental restoration program "(a) Environmental Restoration Program.— 'XD In general. — The Secretary of Defense shall carry out a program of environmental restoration at facilities under the jurisdiction of the Secretary. The program shall be known as the 'Defense Environmental Restoration Program'. "(2) Appucation of section 120 OF CERCLA.— Activities of the program described in subsection (bXD shall be carried out sub- ject to, and in a manner consistent with, section 120 (relating to Federal facilities) of the Comprehensive Environmental Re- sponse, Compensation, and Liability Act of 1980 (hereinafter in this chapter referred to as 'CERCLA') (42 U.S.C. 9601 et seq.). "(3) Consultation with epa. — The program shall be carried out in consultation with the Administrator of the Environmen- tal Protection Agency. "(4) Administrative office within osd. — The Secretary shall identify an office within the Office of the Secretary which shall have responsibility for carrying out the program. 341 163 "(b) Program Goaus. — Goals of the program shall include the fol- lowing: "(1) The identification, investigation, research and develop- ment, and cleanup of contamination from hazardous sub- stances, pollutants, and contaminants. "(2) Correction of other environmental damage (such as de- tection and disposal of unexploded ordnance) which creates an imminent and substantial endangerment to the public health or welfare or to the environment. "(3) Demolition and removal of unsafe buildings and struc- tures, including buildings and structures of the Department of Defense at sites formerly used by or under the jurisdiction of the Secretary. "(c) Responsibility for Response Actions.— "(1) Basic responsibiuty. — The Secretary shall carry out (in accordance with the provisions of this chapter and CERCLA) all response actions with respect to releases of hazardous sub- stances from each of the following: "(A) Each facility or site owned by, leased to, or other- wise possessed by the United States and under the jurisdic- tion of the Secretary. "(B) Each facility or site which was under the jurisdic- tion of the Secretary and owned by, leased to, or otherwise possessed by the United States at the time of actions lead- ing to contamination by hazardous substances. "(C) Each vessel owned or operated by the Department of Defense. "(2) Other responsible parties. — Paragraph (1) shall not apply to a removal or remedial action if the Administrator has provided for response action by a potentially responsible person in accordance \yith section 122 of CERCLA (relating to settlements). "(3) State fees and charges. — The Secretary shall pay fees and charges imposed by State authorities for permit services for the disposal of hazardous substances on lands which are under the jurisdiction of the Secretary to the same extent that nongovernmental entities are required to pay fees and charges imposed by State authorities for permit services. The preceding sentence shall not apply with respect to a payment that is the responsibility of a lessee, contractor, or other private person. "(d) Services of Other Agencies. — The Secretary may enter into agreements on a reimbursable basis with any other Federal agency, and on a reimbursable or other basis with any State or local government agency, to obtain the services of that agency to assist the Secretary in carrying out any of the Secretary's responsi- bilities under this section. Services which may be obtained under this subsection include the identification, investigation, and clean- up of any off-site contamination possibly resulting from the release of a hazardous substance or waste at a facility under the Secre- tary's jurisdiction. (e) Response Action Contractors. — The provisions of section 119 of CERCLA apply to response action contractors (as defined in that section) who carry out response actions under this section. 342 164 '*§ 2702. Research, development, and demonstration program "(a) Program. — As part of the Defense Environmental Restora- tion Program, the Secretary of Defense shall carry out a program of research, development, and demonstration with respect to haz- ardous wastes. The program shall be carried out in consultation and cooperation with the Administrator and the advisory council established under section 311(aX5) of CERCLA. The program shall include research, development, and demonstration with respect to each of the following: "(1) Means of reducing the quantities of hazardous waste generated by activities and facilities under the jurisdiction of the Secretary. "(2) Methods of treatment, disposal, and management (in- cluding recycling and detoxifying) of hazardous waste of the types and quantities generated by current and former activi- ties of the Secretary and facilities currently and formerly under the jurisdiction of the Secretary. "(3) Identifying more cost-effective technologies for cleanup of hazardous substances. "(4) Toxicological data collection and methodology on risk of exposure to hazardous waste generated by the Department of Defense. "(5) The testing, evaluation, and field demonstration of any innovative technology, processes, equipment, or related train- ing devices which may contribute to establishment of new methods to control, contain, and treat hazardous substances, to be carried out in consultation and cooperation with, and to the extent possible in the same manner and standards as, testing, evaluation, and field demonstration carried out by the Admin- istrator, acting through the office of technology demonstration of the Environmental Protection Agency. "(b) Special Permit. — The Administrator may use the authori- ties of section 3005(g) of the Solid Waste Disposal Act (42 U.S.C. 6925(g)) to issue a permit for testing and evaluation which receives support under this section. (c) Contracts and Grants.— The Secretary may enter into con- tracts and cooperative agreements with, and make grants to, uni- versities, public and private profit and nonprofit entities, and other persons to carry out the research, development, and demonstration authorized under this section. Such contracts may be entered into only to the extent that appropriated funds are available for that purpose. 'Xd) Information Ck)LLECTiON and Dissemination.— "(1) In general.— The Secretary shall develop, collect, evalu- ate, and disseminate information related to the use (or poten- tial use) of the treatment, disposal, and management technol- ogies that are researched, developed, and demonstrated under this section. "(2) Role of epa.— The functions of the Secretary under paragraph (1) shall be carried out in cooperation and consulta- tion with the Administrator. To the extent appropriate and agreed upon by the Administrator and the Secretary, the Ad- ministrator shall evaluate and disseminate such information 343 165 through the office of technology demonstration of the Environ- mental Protection Agency. "§ 2703. Environmental restoration transfer account "(a) ESTABUSHMENT OF TRANSFER ACCOUNT.— "(1) EsTABUSHMENT. — There is hereby established in the De- partment of Defense an account to be known as the 'Defense Environmental Restoration Account' (hereinafter in this sec- tion referred to as the 'transfer account'). All sums appropri- ated to carry out the functions of the Secretary of Defense re- lating to environmental restoration under this chapter or any other provision of law shall be appropriated to the transfer ac- count. "(2) Requirement of authorization of appropriations.— No funds may be appropriated to the transfer account unless such sums have been specifically authorized by law. "(3) Availability of funds in transfer account.— Amounts appropriated to the transfer account shall remain available until transferred under subsection (b). "(b) Authority To Transfer to Other DOD Accounts. — Amounts in the transfer account shall be available to be trans- ferred by the Secretary to any appropriation account or fund of the Department for obligation from that account or fund. Funds so transferred shall be merged with and available for the same pur- poses and for the same period as the account or fund to which transferred. "(c) Obugation of Transferred Amounts.— Funds transferred under subsection (b) may only be obligated or expended from the account or fund to which transferred in order to carry out the func- tions of the Secretary under this chapter or environmental restora- tion functions under any other provision of law. "(d) Budget Reports. — In proposing the Budget for any fiscal year pursuant to section 1105 of title 31, the President shall set forth separately the amount requested for environmental restora- tion programs of the Department of Defense under this chapter or any other Act. "(e) Amounts Recovered Under CERCLA. — Amounts recovered under section 107 of CERCLA for response actions of the Secretary shall be credited to the transfer account. "§ 2704. Commonly found unregulated hazardous substances "(a) Notice to HHS.— "(1) In general.— The Secretary of Defense shall notify the Secretary of Health and Human Services of the hazardous sub- stances which the Secretary of Defense determines to be the most commonly found unregulated hazardous substances at fa- cilities under the Secretary's jurisdiction. The notification shall be of not less than the 25 most widely used such substances. "(2) Definition.— In this subsection, the term "unregulated hazardous substance" means a hazardous substance — "(A) for which no standard, requirement, criteria, or lim- itation is in effect under the Toxic Substances Control Act, the Safe Drinking Water Act, the Clean Air Act, or the Clean Water Act; and 344 166 **(B) for which no water quality criteria are in effect under any provision of the Clean Water Act. "(b) ToxicoLOGiCAL PROFILES.— The Secretary of Health and Human Services shall take such steps as necessary to ensure the timely preparation of toxicological profiles of each of the sub- stances of which the Secretary is notified under subsection (a). The profiles of such substances shall include each of the following: "(1) The examination, summary, and interpretation of avail- able toxicological information and epidemiologic evaluations on a hazardous substance in order to ascertain the levels of signif- icant human exposure for the substance and the gissociated acute, subacute, and chronic health effects. "(2) A determination of whether adequate information on the health effects of each substance is available or in the proc- ess of development to determine levels of exposure which present a significant risk to human health of acute, subacute, and chronic health effects. "(3) Where appropriate, toxicological testing directed toward determining the maximum exposure level of a hazardous sub- stance that is safe for humans. "(c) DOD Support. — The Secretary of Defense shall transfer to the Secretary of Health and Human Services such toxicological data, such sums from amounts appropriated to the Department of Defense, and such personnel of the Department of Defense as may be necessary (1) for the preparation of toxicological profiles under subsection (b) or (2) for other health related activities under section 104(i) of CERCLA. The Secretary of Defense and the Secretary of Health and Human Services shall enter into a memorandum of un- derstanding regarding the manner in which this section shall be carried out, including the manner for transferring funds and per- sonnel and for coordination of activities under this section. "(d) EPA Health Advisories.— "(1) Preparation.— At the request of the Secretary of De- fense, the Administrator shall, in a timely manner, prepare health advisories on hazardous substances. Such an advisory shall be prepared on each hazardous substance — "(A) for which no advisory exists; "(B) which is found to threaten drinking water; and "(C) which is emanating from a facility under the juris- diction of the Secretary. "(2) Content of health advisories.— Such health advisories shall provide specific advice on the levels of contaminants in drinking water at which adverse health effects would not be anticipated and which include a margin of safety so as to pro- tect the most sensitive members of the population at risk. The advisories shall provide data on one-day, 10-day, and longer- term exposure periods where available toxicological data exist. "(3) DOD SUPPORT FOR health advisories.— The Secretary of Defense shall transfer to the Administrator such toxicological data, such sums from amounts appropriated to the Department of Defense, and such personnel of the Department of Defense as may be necessary for the preparation of such health advisor- ies. The Secretary and the Administrator shall enter into a memorandum of understanding regarding the manner in 345 167 which this subsection shall be carried out, including the manner for transferring funds and personnel and for coordina- tion of activities under this subsection. "(e) Cross Reference.— Section 104(i) of CERCLA applies to fa- cilities under the jurisdiction of the Secretary of Defense in the manner prescribed in that section. "(f) Functions of HHS To Be Carried Out Through ATSDR.— The functions of the Secretary of Health and Human Services under this section shall be carried out through the Administrator of the Agency of Toxic Substances and Disease Registry of the De- partment of Health and Human Services established under section 104(i) of CERCLA. "§ 2705. Notice of environmental restoration activities "(a) Expedited Notice.— The Secretary of Defense shall take such actions as necessary to ensure that the regional offices of the Environmental Protection Agency and appropriate State and local authorities for the State in which a facility under the Secretary's jurisdiction is located receive prompt notice of each of the follow- ing: "(1) The discovery of releases or threatened releases of haz- ardous substances at the facility. "(2) The extent of the threat to public health and the envi- ronment which may be associated with any such release or threatened release. "(3) Proposals made by the Secretary to carry out response actions with respect to any such release or threatened release. "(4) The initiation of any response action with respect to such release or threatened release and the commencement of each distinct phase of such activities. "(b) Comment by EPA and State and Local Authorities. — "(1) Release notices.— The Secretary shall ensure that the Administrator of the Environmental Protection Agency and appropriate State and local officials have an adequate opportu- nity to comment on notices under paragraphs (1) and (2) of sub- section (a). "(2) Proposals for response actions.— The Secretary shall require that an adequate opportunity for timely review and comment be afforded to the Administrator and to appropriate State and local officials after making a proposal referred to in subsection (aX3) and before undertaking an activity or action referred to in subsection (aX4). The preceding sentence does not apply if the action is an emergency removal taken because of imminent and substantial endangerment to human health or the environment and consultation would be impractical. "(c) Technical Review Committee.— Whenever possible and practical, the Secretary shall establish a technical review commit- tee to review and comment on Department of Defense actions and proposed actions with respect to releases or threatened releases of hazardous substances at installations. Members of any such com- mittee shall include at least one representative of the Secretary, the Administrator, and appropriate State and local authorities and shall include a public representative of the community involved. 346 168 "§ 2706. Annual report to Congress *'(a) Report on Progress in Implementation. — The Secretary of Defense shall submit to Congress a report each fiscal year describ- ing the progress made by the Secretary during the preceding fiscal year in implementing the requirements of this chapter. *'(b) Matters To Be Included. — Each such report shall include the following: '*(!) A statement for each installation under the jurisdiction of the Secretary of the number of individual facilities at which a hazardous substance has been identified. "(2) The status of response actions contemplated or under- taken at each such facility. "(3) The specific cost estimates and budgetary proposals in- volving response actions contemplated or undertaken at each such facility. "(4) A report on progress on conducting response actions at facilities other than facilities on the National Priorities List. "§ 2707. Definitions ''In this chapter: "(1) The terms 'environment', 'facility', 'hazardous sub- stance', 'person', 'release', 'removal', 'response', 'disposal', and 'hazardous waste' have the meanings given those terms in sec- tion 101 of CERCLA (42 U.S.C. 9601). "(2) The term 'Administrator' means the Administrator of the Environmental Protection Agency.". "(2) The tables of chapters at the beginning of subtitle A, and at the beginning of part IV of subtitle A, of such title are each amended by inserting after the item relating to chapter 159 the fol- lowing new item: "160. Environmental Restoration 2701". "(b) MiUTARY Construction Projects.— (1) Chapter 169 of title 10, United States €ode, is amended by inserting at the end of sub- chapter I the following new section: "§ 2810. Construction projects for environmental response actions "(a) Subject to subsection (b), the Secretary of Defense may carry out a military construction project not otherwise authorized by law (or may authorize the Secretary of a military department to carry out such a project) if the Secretary of Defense determines that the project is necessary to carry out a response action under chapter 160 of this title or under the Comprehensive Environmental Re- sponse, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.). "(bXD When a decision is made to carry out a military construc- tion project under this section, the Secretary of Defense shall submit a report in writing to the appropriate committees of Con- gress on that decision. Each such report shall include — "(A) the justification for the project and the current estimate of the cost of the project; and "(B) the justification for carrying out the project under this section. 347 169 "(2) The project may then be carried out only after the end of the 21-day period beginning on the date the notification is received by such committees. "(c) In this section, the term 'response action' has the meaning given that term in section 101 of the Comprehensive Environmen- tal Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601).". "(2) The table of sections at the beginning of subchapter I of such chapter is amended by adding at the end thereof the following new item: "2810. Construction projects for environmental response actions.". "(c) Effective Date.— Section 2703(aX2) of title 10, United States Code, as added by subsection (a), shall apply with respect to funds appropriated for fiscal years beginning after September 30, 1986. SEC. 213. LOVE CANAL PROPERTY ACQUISITION. (a) Congressional Findings.— (1) The area known as Love Canal located in the city of Niag- ara Falls and the town of Wheatfleld, New York, was the first toxic waste site to receive national attention. As a result of that attention Congress investigated the problems associated with toxic waste sites and enacted CERCLA to deal with these problems. (2) Because Love Canal came to the Nation's attention prior to the passage of CERCLA and because the fund under CERCLA was not available to compensate for all of the hard- ships endured by the citizens in the area, Congress has deter- mined that special provisions are required. These provisions do not affect the lawfulness, implementation, or selection of any other response actions at Love Canal or at any other facilities. TITLE III— EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW SEC. 300. SHORT TITLE; TABLE OF CONTENTS. (a) Short Title. — This title may be cited as the "Emergency Planning and Community Right-To-Know Act of 1986". (b) Table of Contents. — 'Kie table of contents of this title is as follows: Sec. 300. Short title; table of contents. Subtitle A— Emergency Planning and Notification Sec. 301. EJstablishment of State commissions, planning districts, and local commit- tees. Sec. 302. Substances and facilities covered and notification. Sec. 303. Comprehensive emergency response plans. Sec. 304. Emergency notification. Sec. 305. Emergency training and review of emergency systems. Subtitle B — Reporting Requirements Sec. 311. Material safety data sheets. Sec. 312. Emergency and hazardous chemical inventory forms. Sec. 313. Toxic chemical release forms. Subtitle C— General Provisions Sec. 321. Relationship to other law. Sec. 322. Trade secrets. 348 170 Sec. 323. Provision of information to health professionals, doctors, and nurses. Sec. 324. Public availability of plans, data sheets, forms, and foUowup notices. Sec. 325. Enforcement. Sec. 326. Civil Actions. Sec. 327. Exemption. Sec. 328. Regulations. Sec. 329. Definitions. Sec. 330. Authorization of appropriations. Subtitle A — Emergency Planning and Notification SEC. 301. ESTABLISHMENT OF STATE COMMISSIONS, PLANNING DIS- TRICTS, AND LOCAL COMMITTEES. (a) Establishment of State Emergency Response Commis- sions. — Not later than six months after the date of the enactment of this title, the Governor of each State shall appoint a State emer- gency response commission. The Governor may designate as the State emergency response commission one or more existing emer- gency response organizations that are State-sponsored or appoint- ed. The Governor shall, to the extent practicable, appoint persons to the State emergency response commission who have technical expertise in the emergency response field. The State emergency re- sponse commission shall appoint local emergency planning commit- tees under subsection (c) and shall supervise and coordinate the ac- tivities of such committees. The State emergency response commis- sion shall establish procedures for receiving and processing re- quests from the public for information under section 324, including tier II information under section 312. Such procedures shall include the designation of an official to serve as coordinator for informa- tion. If the Governor of any State does not designate a State emer- gency response commission within such period, the Governor shall operate £is the State emergency response commission until the Gov- ernor makes such designation. (b) Establishment of Emergency Planning Districts. — Not later than nine months after the date of the enactment of this title, the State emergency response commission shall designate emergen- cy planning districts in order to facilitate preparation and imple- mentation of emergency plans. Where appropriate, the State emer- gency response commission may designate existing political subdi- visions or multijurisdictional planning organizations as such dis- tricts. In emergency planning areas that involve more than one State, the State emergency response commissions of all potentially affected States may designate emergency planning districts and local emergency planning committees by agreement. In making such designation, the State emergency response commission shall indicate which facilities subject to the requirements of this subtitle are within such emergency planning district. (c) Establishment of Local Emergency Planning Commit- tees. — Not later than 30 days after designation of emergency plan- ning districts or 10 months after the date of the enactment of this title, whichever is earlier, the State emergency response commis- sion shall appoint members of a local emergency planning commit- tee for each emergency planning district. Each committee shall in- clude, at a minimum, representatives from each of the following groups or organizations: elected State and local officials; law en- forcement, civil defense, firefighting, first aid, health, local environ- 349 171 mental, hospital, and transportation personnel; broadcast and print media; community groups; and owners and operators of facilities subject to the requirements of this subtitle. Such committee shall appoint a chairperson and shall establish rules by which the com- mittee shall function. Such rules shall include provisions for public notification of committee activities, public meetings to discuss the emergency plan, public comments, response to such comments by the committee, and distribution of the emergency plan. The local emergency planning committee shall establish procedures for re- ceiving and processing requests from the public for information under section 324, including tier II information under section 312. Such procedures shall include the designation of an official to serve as coordinator for information. (d) Revisions. — A State emergency response commission may revise its designations and appointments under subsections (b) and (c) as it deems appropriate. Interested persons may petition the State emergency response commission to modify the membership of a local emergency planning committee. SEC. 302. SUBSTANCES AND FACILITIES COVERED AND NOTIFICATION. (a) Substances Covered.— (1) In general. — A substance is subject to the requirements of this subtitle if the substance is on the list published under paragraph (2). (2) List of extremely hazardous substances. — Within 30 days after the date of the enactment of this title, the Adminis- trator shall publish a list of extremely hazardous substances. The list shall be the same as the list of substances published in November 1985 by the Administrator in Appendix A of the "Chemical Emergency Preparedness Program Interim Guid- ance". (3) Thresholds.— (A) At the time the list referred to in para- graph (2) is published the Administrator shall — (i) publish an interim final regulation establishing a threshold planning quantity for each substance on the list, taking into account the criteria described in paragraph (4), and (ii) initiate a rulemaking in order to publish final regula- tions establishing a threshold planning quantity for each substance on the list. (B) The threshold planning quantities may, at the Adminis- trator's discretion, be based on classes of chemicals or catego- ries of facilities. (C) If the Administrator fails to publish an interim final reg- ulation establishing a threshold planning quantity for a sub- stance within 30 days after the date of the enactment of this title, the threshold planning quantity for the substance shall be 2 pounds until such time as the Administrator publishes regulations establishing a threshold for the substance. (4) Revisions. — The Administrator may revise the list and thresholds under paragraphs (2) and (3) from time to time. Any revisions to the list shall take into account the toxicity, reac- tivity, volatility, dispersability, combustability, or flammability of a substance. For purposes of the preceding sentence, the 350 172 term "toxiQity" shall include any short- or long-term health effect which may result from a short-term exposure to the sub- stance. .- (b) Facilities Covered.— (1) Except as provided in section 304, a facility is subject to the requirements of this subtitle if a substance on the list referred to in subsection (a) is present at the facility in an amount in excess of the threshold planning quantity established for such substance. (2) For purposes of emergency planning, a Governor or a State emergency response commission may designate additional facilities which shall be subject to the requirements of this subtitle, if such designation is made after public notice and opportunity for com- ment. The Governor or State emergency response commission shall notify the facility concerned of any facility designation under this paragraph. (c) Emergency Planning Notification.— Not later than seven months after the date of the enactment of this title, the owner or operator of each facility subject to the requirements of this subtitle by reason of subsection (b)(1) shall notify the State emergency re- sponse commission for the State in which such facility is located that such facility is subject to the requirements of this subtitle. Thereafter, if a substance on the list of extremely hazardous sub- stances referred to in subsection (a) first becomes present at such facility in excess of the threshold planning quantity established for such substance, or if there is a revision of such list and the facility has present a substance on the revised list in excess of the thresh- old planning quantity established for such substance, the owner or operator of the facility shall notify the State emergency response commission and the local emergency planning committee within 60 days after such acquisition or revision that such facility is subject to the requirements of this subtitle. (d) Notification of Administrator.— The State emergency re- sponse commission shall notify the Administrator of facilities sub- ject to the requirements of this subtitle by notifying the Adminis- trator of— (1) each notification received from a facility under subsection (c), and (2) each facility designated by the Governor or State emer- gency response commission under subsection (b)(2). SEC. 303. COMPREHENSIVE EMERGENCY RESPONSE PLANS. (a) Plan Required. — Each local emergency planning committee shall complete preparation of an emergency plan in accordance with this section not later than two years after the date of the en- actment of this title. The committee shall review such plan once a year, or more frequently as changed circumstances in the commu- nity or at any facility may require. (b) Resources. — Each local emergency planning committee shall evaluate the need for resources necessary to develop, implement, and exercise the emergency plan, and shall make recommendations with respect to additional resources that may be required and the means for providing such additional resources. (c) Plan Provisions.— Each emergency plan shall include (but is not limited to) each of the following: 351 173 (1) Identification of facilities subject to the requirements of this subtitle that are within the emergency planning district, identification of routes likely to be used for the transportation of substances on the list of extremely hazardous substances re- ferred to in section 302(a), and identification of additional fa- cilities contributing or subjected to additional risk due to their proximity to facilities subject to the requirements of this sub- title, such as hospitals or natural gas facilities. (2) Methods and procedures to be followed by facility owners and operators and local emergency and medical personnel to respond to any release of such substances. (3) Designation of a community emergency coordinator and facility emergency coordinators, who shall make determina- tions necessary to implement the plan. (4) Procedures providing reliable, effective, and timely notifi- cation by the facility emergency coordinators and the commu- nity emergency coordinator to persons designated in the emer- gency plan, and to the public, that a release has occurred (con- sistent with the emergency notification requirements of section 304). (5) Methods for determining the occurrence of a release, and the area or population likely to be affected by such release. (6) A description of emergency equipment and facilities in the community and at each facility in the community subject to the requirements of this subtitle, and an identification of the persons responsible for such equipment and facilities. (7) Evacuation plans, including provisions for a precaution- ary evacuation and alternative traffic routes. (8) Training programs, including schedules for training of local emergency response and medical personnel. (9) Methods and schedules for exercising the emergency plan. (d) Providing of Information.— For each facility subject to the requirements of this subtitle: (1) Within 30 days after establishment of a local emergency planning committee for the emergency planning district in which such facility is located, or within 11 months after the date of the enactment of this title, whichever is earlier, the owner or operator of the facility shall notify the emergency planning committee (or the Governor if there is no committee) of a facility representative who will participate in the emer- gency planning process as a facility emergency coordinator. (2) The owner or operator of the facility shall promptly inform the emergency planning committee of any relevant changes occurring at such facility as such changes occur or are expected to occur. (3) Upon request from the emergency planning committee, the owner or operator of the facility shall promptly provide in- formation to such committee necessary for developing and im- plementing the emergency plan. (e) Review by the State Emergency Response Commission.— After completion of an emergency plan under subsection (a) for an emergency planning district, the local emergency planning commit- tee shall submit a copy of the plan to the State emergency response commission of each State in which such district is located. The 352 174 commission shall review the plan and make recommendations to the committee on revisions of the plan that may be necessary to ensure coordination of such plan with emergency response plans of other emergency planning districts. To the maximum extent practi- cable, such review shall not delay implementation of such plan. (i) Guidance Documents. — The national response team, as estab- lished pursuant to the National Contingency Plan as established under section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), shall publish guidance documents for preparation and implementa- tion of emergency plans. Such documents shall be published not later than five months after the date of the enactment of this title. (g) Review of Plans by Regional Response Teams.— The region- al response teams, as established pursuant to the National Contin- gency Plan as established under section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), may review and comment upon an erner- gency plan or other issues related to preparation, implementation, or exercise of such a plan upon request of a local emergency plan- ning committee. Such review shall not delay implementation of the plan. SEC. 304. EMERGENCY NOTIFICATION. (a) Types of Releases.— (1) 302(a) SUBSTANCE which requires cercla notice.— If a re- lease of an extremely hazardous substance referred to in sec- tion 302(a) occurs from a facility at which a hazardous chemi- cal is produced, used, or stored, and such release requires a no- tification under section 103(a) of the Comprehensive Environ- mental Response, Compensation, and Liability Act of 1980 (hereafter in this section referred to as "CERCLA") (42 U.S.C. 9601 et seq.), the owner or operator of the facility shall imme- diately provide notice as described in subsection (b). (2) Other 302 (a) substance.— If a release of an extremely hazardous substance referred to in section 302(a) occurs from a facility at which a hazardous chemical is produced, used, or stored, and such release is not subject to the notification re- quirements under section 103(a) of CERCLA, the owner or op- erator of the facility shall immediately provide notice as de- scribed in subsection (b), but only if the release— (A) is not a federally permitted release as defined in sec- tion 101(10) of CERCLA, (B) is in an amount in excess of a quantity which the Ad- ministrator has determined (by regulation) requires notice, and (C) occurs in a manner which would require notification under section 103(a) of CERCLA. Unless and until superseded by regulations establishing a quantity for an extremely hazardous substance described in this paragraph, a quantity of 1 pound shall be deemed that quantity the release of which requires notice as described in subsection (b). (3) Non-302 (a) substance which requires cercla notice.— If a release of a substance which is not on the list referred to 353 175 in section 302(a) occurs at a facility at which a hazardous chemical is produced, used, or stored, and such release requires notification under section 103(a) of CERCLA, the owner or op- erator shall provide notice as follows: (A) If the substance is one for which a reportable quanti- ty has been established under section 102(a) of CERCLA, the owner or operator shall provide notice as described in subsection (b). (B) If the substance is one for which a reportable quanti- ty has not been established under section 102(a) of CERCLA— (i) Until April 30, 1988, the owner or operator shall provide, for releases of one pound or more of the sub- stance, the same notice to the community emergency coordinator for the local emergency planning commit- tee, at the same time and in the same form, as notice is provided to the National Response Center under sec- tion 103(a) of CERCLA. (ii) On and after April 30, 1988, the owner or opera- tor shall provide, for releases of one pound or more of the substance, the notice as described in subsection (b). (4) Exempted releases. — This section does not apply to any release which results in exposure to persons solely within the site or sites on which a facility is located. (b) Notification. — (1) Recipients of notice. — Notice required under subsection (a) shall be given immediately after the release by the owner or operator of a facility (by such means as telephone, radio, or in person) to the community emergency coordinator for the local emergency planning committees, if established pursuant to section 301(c), for any area likely to be affected by the re- lease and to the State emergency planning commission of any State likely to be affected by the release. With respect to trans- portation of a substance subject to the requirements of this sec- tion, or storage incident to such transportation, the notice re- quirements of this section with respect to a release shall be satisfied by dialing 911 or, in the absence of a 911 emergency telephone number, calling the operator. (2) Contents.— Notice required under subsection (a) shall in- clude each of the following (to the extent known at the time of the notice and so long as no delay in responding to the emer- gency results): (A) The chemical name or identity of any substance in- volved in the release. (B) An indication of whether the substance is on the list referred to in section 302(a). (C) An estimate of the quantity of any such substance that was released into the environment. (D) The time and duration of the release. (E) The medium or media into which the release oc- curred. (F) Any known or anticipated acute or chronic health risks associated with the emergency and, where appropri- 354 176 ate, advice regarding medical attention necessary for ex- posed individuals. (G) Proper precautions to take as a result of the release, including evacuation (unless such information is readily available to the community emergency coordinator pursu- ant to the emergency plan). (H) The name and telephone number of the person or persons to be contacted for further information. (c) FoLLOwup Emergency Notice.— As soon as practicable after a release which requires notice under subsection (a), such owner or operator shall provide a written followup emergency notice (or no- tices, as more information becomes available) setting forth and up- dating the information required under subsection (b), and including additional information with respect to — (1) actions taken to respond to and contain the release, (2) any known or anticipated acute or chronic health risks associated with the release, and (3) where appropriate, advice regarding medical attention necessary for exposed individuals. (d) Transportation Exemption Not Applicable. — The exemp- tion provided in section 327 (relating to transportation) does not apply to this section. SEC. 305. EMERGENCY TRAINING AND REVIEW OF EMERGENCY SYSTEMS. (a) Emergency Training. — (1) Programs. — Officials of the United States Government carrying out existing Federal programs for emergency training are authorized to specifically provide training and education programs for Federal, State, and local personnel in hazard mitigation, emergency preparedness, fire prevention and con- trol, disaster response, long-term disaster recovery, national se- curity, technological and natural hazards, and emergency proc- esses. Such programs shall provide special emphasis for such training and education with respect to hazardous chemicals. (2) State and local program support. — There is authorized to be appropriated to the Federal Emergency Management Agency for each of the fiscal years 1987, 1988, 1989, and 1990, $5,000,000 for making grants to support programs of State and local governments, and to support university-sponsored pro- grams, which are designed to improve emergency planning, preparedness, mitigation, response, and recovery capabilities. Such programs shall provide special emphasis with respect to emergencies associated with hazardous chemicals. Such grants may not exceed 80 percent of the cost of any such program. The remaining 20 percent of such costs shall be funded from non-Federal sources. (3) Other programs.— Nothing in this section shall affect the availability of appropriations to the Federal Emergency Management Agency for any programs carried out by such agency other than the programs referred to in paragraph (2). (b) Review of Emergency Systems. — (1) Review. — The Administrator shall initiate, not later than 30 days after the date of the enactment of this title, a review of emergency systems for monitoring, detecting, and preventing 355 177 releases of extremely hazardous substances at representative domestic facilities that produce, use, or store extremely hazard- ous substances. The Administrator may select representative extremely hazardous substances from the substances on the list referred to in section 302(a) for the purposes of this review. The Administrator shall report interim findings to the Con- gress not later than seven months after such date of enact- ment, and issue a final report of findings and recommenda- tions to the Congress not later than 18 months after such date of enactment. Such report shall be prepared in consultation with the States and appropriate Federal agencies. (2) Report. — The report required by this subsection shall in- clude the Administrator's findings regarding each of the fol- lowing: (A) The status of current technological capabilities to (i) monitor, detect, and prevent, in a timely manner, signifi- cant releases of extremely hsizardous substances, (ii) deter- mine the magnitude and direction of the hazard posed by each release, (iii) identify specific substances, (iv) provide data on the specific chemical composition of such releases, and (v) determine the relative concentrations of the con- stituent substances. (B) The status of public emergency alert devices or sys- tems for providing timely and effective public warning of an accidental release of extremely hazardous substances into the environment, including releases into the atmos- phere, surface water, or groundwater from facilities that produce, store, or use significant quantities of such ex- tremely hazardous substances. (C) The technical and economic feasibility of establish- ing, maintaining, and operating perimeter alert systems for detecting releases of such extremely hazardous sub- stances into the atmosphere, surface water, or groundwat- er, at facilities that manufacture, use, or store significant quantities of such substances. (3) Recommendations. — The report required by this subsec- tion shall also include the Administrator's recommendations for— (A) initiatives to support the development of new or im- proved technologies or systems that would facilitate the timely monitoring, detection, and prevention of releases of extremely hazardous substances, and (B) improving devices or systems for effectively alerting the public in a timely manner, in the event of an acciden- tal release of such extremely hazardous substances. Subtitle B — Reporting Requirements SEC. 311. MATERIAL SAFETY DATA SHEETS. (a) Basic Requirement. — (1) Submission of msds or ust. — The owner or operator of any facility which is required to prepare or have available a material safety data sheet for a hazardous chemical under the Occupational Safety and Health Act of 1970 and regulations 356 178 promulgated under that Act (15 U.S.C. 651 et seq.) shall submit a material safety data sheet for each such chemical, or a list of such chemicals as described in paragraph (2), to each of the fol- lowing: (A) The appropriate local emergency planning commit- tee. (B) The State emergency response commission. (C) The fire department with jurisdiction over the facili- ty. (2) Contents of ust. — (A) The list of chemicals referred to in paragraph (1) shall include each of the following: (i) A list of the hazardous chemicals for which a material safety data sheet is required under the Occupational Safety and Health Act of 1970 and regulations promulgat- ed under that Act, grouped in categories of health and physical hazards as set forth under such Act and regula- tions promulgated under such Act, or in such other catego- ries as the Administrator may prescribe under subpara- graph (B). (ii) The chemical name or the common name of each such chemical as provided on the material safety data sheet. (iii) Any hazardous component of each such chemical as provided on the material safety data sheet. (B) For purposes of the list under this paragraph, the Admin- istrator may modify the categories of health and physical haz- ards as set forth under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act by re- quiring information to be reported in terms of groups of haz- ardous chemicals which present similar hazards in an emer- gency. (3) Treatment of mixtures.— An owner or operator may meet the requirements of this section with respect to a hazard- ous chemical which is a mixture by doing one of the following: (A) Submitting a material safety data sheet for, or iden- tifying on a list, each element or compound in the mixture which is a hazardous chemical. If more than one mixture has the same element or compound, only one material safety data sheet, or one listing, of the element or com- pound is necessary. (B) Submitting a material safety data sheet for, or iden- tifying on a list, the mixture itself. (b) Thresholds.— The Administrator may establish threshold quantities for hazardous chemicals below which no facility shall be subject to the provisions of this section. The threshold quantities may, in the Administrator's discretion, be based on classes of chemicals or categories of facilities. (c) Availability of MSDS on Request.— (1) To LOCAL emergency PLANNING COMMITTEE. — If an owner or operator of a facility submits a list of chemicals under sub- section (a)(1), the owner or operator, upon request by the local emergency planning committee, shall submit the material safety data sheet for any chemical on the list to such commit- tee. 357 179 (2) To PUBLIC. — A local emergency planning committee, upon request by any person, shall make available a material safety data sheet to the person in accordance with section 324. If the local emergency planning committee does not have the re- quested material safety data sheet, the committee shall request the sheet from the facility owner or operator and then make the sheet available to the person in accordance with section 324. (d) Initial Submission and Updating. — (1) The initial material safety data sheet or list required under this section with respect to a hazardous chemical shall be provided before the later of — (A) 12 months after the date of the enactment of this title, or (B) 3 months after the owner or operator of a facility is re- quired to prepare or have available a material safety data sheet for the chemical under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act. (2) Within 3 months following discovery by an owner or operator of significant new information concerning an aspect of a hazardous chemical for which a material safety data sheet was previously sub- mitted to the local emergency planning committee under subsec- tion (a), a revised sheet shall be provided to such person. (e) Hazardous Chemical Defined. — For purposes of this section, the term "hazardous chemical" has the meaning given such term by section 1910.1200(c) of title 29 of the Code of Federal Regula- tions, except that such term does not include the following: (1) Any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration. (2) Any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use. (3) Any substance to the extent it is used for personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public. (4) Any substance to the extent it is used in a research labo- ratory or a hospital or other medical facility under the direct supervision of a technically qualified individual. (5) Any substance to the extent it is used in routine agricul- tural operations or is a fertilizer held for sale by a retailer to the ultimate customer. SEC. 312. EMERGENCY AND HAZARDOUS CHEMICAL INVENTORY FORMS. (a) Basic Requirement. — (1) The owner or operator of any facili- ty which is required to prepare or have available a material safety data sheet for a hazardous chemical under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act shall prepare and submit an emergency and hazardous chemi- cal inventory form (hereafter in this title referred to as an "inven- tory form") to each of the following: (A) The appropriate local emergency planning committee. (B) The State emergency response commission. (C) The fire department with jurisdiction over the facility. 358 180 (2) The inventory form containing tier I information (as described in subsection (d)(1)) shall be submitted on or before March 1, 1988, and annually thereafter on March 1, and shall contain data with respect to the preceding calendar year. (3) An owner or operator may meet the requirements of this sec- tion with respect to a hazardous chemical which is a mixture by doing one of the following: (A) Providing information on the inventory form on each ele- ment or compound in the mixture which is a hazardous chemi- cal. If more than one mixture has the same element or com- pound, only one listing on the inventory form for the element or compound at the facility is necessary. (B) Providing information on the inventory form on the mix- ture itself. (b) Thresholds. — The Administrator may establish threshold quantities for hazardous chemicals covered by this section below which no facility shall be subject to the provisions of this section. The threshold quantities may, in the Administrator's discretion, be based on classes of chemicals or categories of facilities. (c) Hazardous Chemicals Covered. — A hazardous chemical sub- ject to the requirements of this section is any hazardous chemical for which a material safety data sheet or a listing is required under section 311. (d) Contents of Form.— (1) Tier i information. — (A) Aggregate information by category.— An invento- ry form shall provide the information described in sub- paragraph (B) in aggregate terms for hazardous chemicals in categories of health and physical hazards as set forth under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act. (B) Required information.— The information referred to in subparagraph (A) is the following: (i) An estimate (in ranges) of the maximum amount of hazardous chemicals in each category present at the facility at any time during the preceding calendar year. (ii) An estimate (in ranges) of the average daily amount of hazardous chemicals in each category present at the facility during the preceding calendar year. (iii) The general location of hazardous chemicals in each category. (C) Modifications.— For purposes of reporting informa- tion under this paragraph, the Administrator may— (i) modify the categories of health and physical haz- ards as set forth under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act by requiring information to be reported in terms of groups of hazardous chemicals which present similar hazards in an emergency, or (ii) require reporting on individual hazardous chemi- cals of special concern to emergency response person- nel. 359 181 (2) Tier ii information. — An inventory form shall provide the following additional information for each hazardous chemi- cal present at the facility, but only upon request and in accord- ance with subsection (e): (A) The chemical name or the common name of the chemical as provided on the material safety data sheet. (B) An estimate (in ranges) of the maximum amount of the hazardous chemical present at the facility at any time during the preceding calendar year. (C) An estimate (in ranges) of the average daily amount of the hazardous chemical present at the facility during the preceding calendar year. (D) A brief description of the manner of storage of the hazardous chemical. (E) The location at the facility of the hazardous chemi- cal. (F) An indication of whether the owner elects to with- hold location information of a specific hazardous chemical from disclosure to the public under section 324. (e) Availability of Tier II Information. — (1) Availability to state commissions, local committees, AND FIRE DEPARTMENTS. — Upon request by a State emergency planning commission, a local emergency planning committee, or a fire department with jurisdiction over the facility, the owner or operator of a facility shall provide tier II information, as described in subsection (d), to the person making the re- quest. Any such request shall be with respect to a specific facil- ity. (2) Availability to other state and local officials.— A State or local official acting in his or her official capacity may have access to tier II information by submitting a request to the State emergency response commission or the local emer- gency planning committee. Upon receipt of a request for tier II information, the State commission or local committee shall, pursuant to paragraph (1), request the facility owner or opera- tor for the tier II information and make available such infor- mation to the official. (3) Availability to public. — (A) In GENERAL. — Any person may request a State emer- gency response commission or local emergency planning committee for tier II information relating to the preceding calendar year with respect to a facility. Any such request shall be in writing and shall be with respect to a specific facility. (B) Automatic provision of information to public— Any tier II information which a State emergency response commission or local emergency planning committee has in its possession shall be made available to a person making a request under this paragraph in accordance with section 324. If the State emergency response commission or local emergency planning committee does not have the tier II information in its possession, upon a request for tier II in- formation the State emergency response commission or local emergency planning committee shall, pursuant to 75-032 0-90-13 360 182 paragraph (1), request the facility owner or operator for tier II information with respect to a hazardous chemical which a facility has stored in an amount in excess of 10,000 pounds present at the facility at any time during the preceding calendar year and make such information available in accordance with section 324 to the person making the request. (C) Discretionary provision of information to PUBUC. — In the case of tier II information which is not in the possession of a State emergency response commission or local emergency planning committee and which is with respect to a hazardous chemical which a facility has stored in an amount less than 10,000 pounds present at the facili- ty at any time during the preceding calendar year, a re- quest from a person must include the general need for the information. The State emergency response commission or local emergency planning committee may, pursuant to paragraph (1), request the facility owner or operator for the tier II information on behalf of the person making the request. Upon receipt of any information requested on behalf of such person, the State emergency response com- mission or local emergency planning committee shall make the information available in accordance with section 324 to the person. (D) Response in 45 days. — A State emergency response commission or local emergency planning committee shall respond to a request for tier II information under this paragraph no later than 45 days after the date of receipt of the request. (D Fire Department Access. — Upon request to an owner or oper- ator of a facility which files an inventory form under this section by the fire department with jurisdiction over the facility, the owner or operator of the facility shall allow the fire department to con- duct an on-site inspection of the facility and shall provide to the fire department specific location information on hazardous chemi- cals at the facility. (g) Format of Forms.— The Administrator shall publish a uni- form format for inventory forms within three months after the date of the enactment of this title. If the Administrator does not publish such forms, owners and operators of facilities subject to the requirements of this section shall provide the information required under this section by letter. SEC. 313. TOXIC CHEMICAL RELEASE FORMS. (a) Basic Requirement.— The owner or operator of a facility sub- ject to the requirements of this section shall complete a toxic chem- ical release form as published under subsection (g) for each toxic chemical listed under subsection (c) that was manufactured, proc- essed, or otherwise used in quantities exceeding the toxic chemical threshold quantity established by subsection (f) during the preced- ing calendar year at such facility. Such form shall be submitted to the Administrator and to an official or officials of the State desig- nated by the Governor on or before July 1, 1988, and annually 361 183 thereafter on July 1 and shall contain data reflecting releases during the preceding calendar year. (b) Covered Owners and Operators of Facilities. — (1) In general. — (A) The requirements of this section shall apply to owners and operators of facilities that have 10 or more full-time employees and that are in Standard Industrial Classification Codes 20 through 39 (as in effect on July 1, 1985) and that manufactured, processed, or otherwise used a toxic chemical listed under subsection (c) in excess of the quantity of that toxic chemical established under subsection (f) during the calendar year for which a release form is required under this section. (B) The Administrator may add or delete Standard Industrial Classification Codes for purposes of subparagraph (A), but only to the extent necessary to provide that each Standard Industri- al Code to which this section applies is relevant to the pur- poses of this section. (C) For purposes of this section — (i) The term ''manufacture" means to produce, prepare, import, or compound a toxic chemical. (ii) The term "process" means the preparation of a toxic chemical, after its manufacture, for distribution in com- merce — (I) in the same form or physical state as, or in a dif- ferent form or physical state from, that in which it was received by the person so preparing such chemi- cal, or (II) as part of an article containing the toxic chemi- cal. (2) Discretionary application to additional facilities.— The Administrator, on his own motion or at the request of a Governor of a State (with regard to facilities located in that State), may apply the requirements of this section to the owners and operators of any particular facility that manufac- tures, processes, or otherwise uses a toxic chemical listed under subsection (c) if the Administrator determines that such action is warranted on the basis of toxicity of the toxic chemi- cal, proximity to other facilities that release the toxic chemical or to population centers, the history of releases of such chemi- cal at such facility, or such other factors as the Administrator deems appropriate. (c) Toxic Chemicals Covered. — The toxic chemicals subject to the requirements of this section are those chemicals on the list in Committee Print Number 99-169 of the Senate Committee on Envi- ronment and Public Works, titled 'Toxic Chemicals Subject to Sec- tion 313 of the Emergency Planning and Community Right-To- Know Act of 1986" (including any revised version of the list as may be made pursuant to subsection (d) or (e)). (d) Revisions by Administrator. — (1) In general.— The Administrator may by rule add or delete a chemical from the list described in subsection (c) at any time. 362 184 (2) Additions.— A chemical may be added if the Administra- tor determines, in his judgment, that there is sufficient evi- dence to establish any one of the following: (A) The chemical is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases. (B) The chemical is known to cause or can reasonably be anticipated to cause in humans — (i) cancer or teratogenic effects, or (ii) serious or irreversible — (I) reproductive dysfunctions, (II) neurological disorders, (III) heritable genetic mutations, or (IV) other chronic health effects. (C) The chemical is known to cause or can reasonably be anticipated to cause, because of— (i) its toxicity, (ii) its toxicity and persistence in the environment, or (iii) its toxicity and tendency to bioaccumulate in the environment, a significant adverse effect on the environment of suffi- cient seriousness, in the judgment of the Administrator, to warrant reporting under this section. The number of chemicals included on the list described in subsection (c) on the basis of the preceding sentence may constitute in the aggregate no more than 25 percent of the total number of chemicals on the list. A determination under this paragraph shall be based on gener- ally accepted scientific principles or laboratory tests, or appro- priately designed and conducted epidemiological or other popu- lation studies, available to the Administrator. (3) Deletions. — A chemical may be deleted if the Adminis- trator determines there is not sufficient evidence to establish any of the criteria described in paragraph (2). (4) Effective date. — Any revision made on or after January 1 and before December 1 of any calendar year shall take effect beginning with the next calendar year. Any revision made on or after December 1 and before January 1 shall take effect be- ginning with the calendar year following the next calendar year. (e) Petitions.— (1) In general. — Any person may petition the Administrator to add or delete a chemical from the list described in subsec- tion (c) on the basis of the criteria in subparagraph (A) or (B) of subsection (d)(2). Within 180 days after receipt of a petition, the Administrator shall take one of the following actions: (A) Initiate a rulemaking to add or delete the chemical to the list, in accordance with subsection (d)(2). (B) Publish an explanation of why the petition is denied. (2) Governor petitions. — A State Governor may petition the Administrator to add or delete a chemical from the list de- 363 185 scribed in subsection (c) on the basis of the criteria in subpara- graph (A), (B), or (C) of subsection (d)(2). In the case of such a petition from a State Governor to delete a chemical, the peti- tion shall be treated in the same manner as a petition received under paragraph (1) to delete a chemical. In the case of such a petition from a State Governor to add a chemical, the chemical will be added to the list within 180 days after receipt of the petition, unless the Administrator — (A) initiates a rulemaking to add the chemical to the list, in accordance with subsection (d)(2), or (B) publishes an explanation of why the Administrator believes the petition does not meet the requirements of subsection (d)(2) for adding a chemical to the list. if) Threshold for Reporting. — (1) Toxic chemical threshold amount.— The threshold amounts for purposes of reporting toxic chemicals under this section are as follows: (A) With respect to a toxic chemical used at a facility, 10,000 pounds of the toxic chemical per year. (B) With respect to a toxic chemical manufactured or processed at a facility — (i) For the toxic chemical release form required to be submitted under this section on or before July 1, 1988, 75,000 pounds of the toxic chemical per year. (ii) For the form required to be submitted on or before July 1, 1989, 50,000 pounds of the toxic chemi- cal per year. (iii) For the form required to be submitted on or before July 1, 1990, and for each form thereafter, 25,000 pounds of the toxic chemical per year. (2) Revisions. — The Administrator may establish a threshold amount for a toxic chemical different from the amount estab- lished by paragraph (1). Such revised threshold shall obtain re- porting on a substantial majority of total releases of the chemi- cal at all facilities subject to the requirements of this section. The amounts established under this paragraph may, at the Ad- ministrator's discretion, be based on classes of chemicals or categories of facilities. (g) Form.— (1) Information required.— Not later than June 1, 1987, the Administrator shall publish a uniform toxic chemical release form for facilities covered by this section. If the Administrator does not publish such a form, owners and operators of facilities subject to the requirements of this section shall provide the in- formation required under this subsection by letter postmarked on or before the date on which the form is due. Such form shall— (A) provide for the name and location of, and principal business activities at, the facility; (B) include an appropriate certification, signed by a senior official with management responsibility for the person or persons completing the report, regarding the ac- curacy and completeness of the report; and 364 186 (C) provide for submission of each of the following items of information for each listed toxic chemical known to be present at the facility: (i) Whether the toxic chemical at the facility is man- ufactured, processed, or otherwise used, and the gener- al category or categories of use of the chemical. (ii) An estimate of the maximum amounts (in ranges) of the toxic chemical present at the facility at any time during the preceding calendar year. (iii) For each wastestream, the waste treatment or disposal methods employed, and an estimate of the treatment efficiency typically achieved by such meth- ods for that wastestream. (iv) The annual quantity of the toxic chemical enter- ing each environmental medium. (2) Use of available data. — In order to provide the informa- tion required under this section, the owner or operator of a fa- cility may use readily available data (including monitoring data) collected pursuant to other provisions of law, or, where such data are not readily available, reasonable estimates of the amounts involved. Nothing in this section requires the moni- toring or measurement of the quantities, concentration, or fre- quency of any toxic chemical released into the environment beyond that monitoring and measurement required under other provisions of law or regulation. In order to assure con- sistency, the Administrator shall require that data be ex- pressed in common units. (h) Use of Release Form.— The release forms required under this section are intended to provide information to the Federal, State, and local governments and the public, including citizens of communities surrounding covered facilities. The release form shall be available, consistent with section 324(a), to inform persons about releases of toxic chemicals to the environment; to assist govern- mental agencies, researchers, and other persons in the conduct of research and data gathering; to aid in the development of appropri- ate regulations, guidelines, and standards; and for other similar purposes. (i) Modifications in Reporting Frequency. — (1) In general.— The Administrator may modify the fre- quency of submitting a report under this section, but the Ad- ministrator may not modify the frequency to be any niore often than annually. A modification may apply, either nation- ally or in a specific geographic area, to the following: (A) All toxic chemical release forms required under this section. (B) A class of toxic chemicals or a category of facilities. (C) A specific toxic chemical. (D) A specific facility. (2) Requirements.— A modification may be made under paragraph (1) only if the Administrator— (A) makes a finding that the modification is consistent with the provisions of subsection (h), based on — (i) experience from previously submitted toxic chem- ical release forms, and 365 187 (ii) determinations made under paragraph (3), and (B) the finding is made by a rulemaking in accordance with section 553 of title 5, United States Code. (3) Determinations. — The Administrator shall make the fol- lowing determinations with respect to a proposed modification before making a modification under paragraph (1): (A) The extent to which information relating to the pro- posed modification provided on the toxic chemical release forms has been used by the Administrator or other agen- cies of the Federal Government, States, local governments, health professionals, and the public. (B) The extent to which the information is (i) readily available to potential users from other sources, such as State reporting programs, and (ii) provided to the Adminis- trator under another Federal law or through a State pro- gram. (C) The extent to which the modification would impose additional and unreasonable burdens on facilities subject to the reporting requirements under this section. (4) 5-YEAR REVIEW. — Any modification made under this sub- section shall be reviewed at least once every 5 years. Such review shall examine the modification and ensure that the re- quirements of paragraphs (2) and (3) still justify continuation of the modification. Any change to a modification reviewed under this paragraph shall be made in accordance with this subsection. (5) Notification to congress.— The Administrator shall notify Congress of an intention to initiate a rulemaking for a modification under this subsection. After such notification, the Administrator shall delay initiation of the rulemaking for at least 12 months, but no more than 24 months, after the date of such notification. (6) Judicial review. — In any judicial review of a rulemaking which establishes a modification under this subsection, a court may hold unlawful and set aside agency action, findings, and conclusions found to be unsupported by substantial evidence. (7) Appucability. — A modification under this subsection may apply to a calendar year or other reporting period beginning no earlier than January 1, 1993. (8) Effective date. — Any modification made on or after Jan- uary 1 and before December 1 of any calendar year shall take effect beginning with the next calendar year. Any modification made on or after December 1 and before January 1 shall take effect beginning with the calendar year following such next calendar year. (j) EPA Management of Data. — The Administrator shall estab- lish and maintain in a computer data base a national toxic chemi- cal inventory based on data submitted to the Administrator under this section. The Administrator shall make these data accessible by computer telecommunication and other means to any person on a cost reimbursable basis. (k) Report.— Not later than June 30, 1991, the Comptroller Gen- eral, in consultation with the Administrator and appropriate offi- 366 188 cials in the States, shall submit to the Congress a report including each of the following: (DA description of the steps taken by the Administrator and the States to implement the requirements of this section, in- cluding steps taken to make information collected under this section available to and accessible by the public. (2) A description of the extent to which the information col- lected under this section has been used by the Environmental Protection Agency, other Federal agencies, the States, and the public, and the purposes for which the information has been used. (3) An identification and evaluation of options for modifica- tions to the requirements of this section for the purpose of making information collected under this section more useful. (1) Mass Balance Study.— (1) In general. — The Administrator shall arrange for a mass balance study to be carried out by the National Academy of Sciences using mass balance information collected by the Ad- ministrator under paragraph (3). The Administrator shall submit to Congress a report on such study no later than 5 years after the date of the enactment of this title. (2) Purposes. — The purposes of the study are as follows: (A) To assess the value of mass balance analysis in deter- mining the accuracy of information on toxic chemical re- leases. (B) To assess the value of obtaining mass balance infor- mation, or portions thereof, to determine the waste reduc- tion efficiency of different facilities, or categories of facili- ties, including the effectiveness of toxic chemical regula- tions promulgated under laws other than this title. (C) To assess the utility of such information for evaluat- ing toxic chemical management practices at facilities, or categories of facilities, covered by this section. (D) To determine the implications of mass balance infor- mation collection on a national scale similar to the mass balance information collection carried out by the Adminis- trator under paragraph (3), including implications of the use of such collection as part of a national annual quantity toxic chemical release program. (3) Information collection. — (A) The Administrator shall acquire available mass balance information from States which currently conduct (or during the 5 years after the date of en- actment of this title initiate) a mass balance-oriented annual quantity toxic chemical release program. If information from such States provides an inadequate representation of industry classes and categories to carry out the purposes of the study, the Administrator also may acquire mass balance information necessary for the study from a representative number of facili- ties in other States. (B) Any information acquired under this section shall be available to the public, except that upon a showing satisfactory to the Administrator by any person that the information (or a particular part thereoD to which the Administrator or any offi- cer, employee, or representative has access under this section 367 189 if made public would divulge information entitled to protection under section 1905 of title 18, United States Code, such infor- mation or part shall be considered confidential in accordance with the purposes of that section, except that such information or part may be disclosed to other officers, employees, or au- thorized representatives of the United States concerned with carrying out this section. (C) The Administrator may promulgate regulations prescrib- ing procedures for collecting mass balance information under this paragraph. (D) For purposes of collecting mass balance information under subparagraph (A), the Administrator may require the submission of information by a State or facility. (4) Mass balance definition. — For purposes of this subsec- tion, the term "mass balance" means an accumulation of the annual quantities of chemicals transported to a facility, pro- duced at a facility, consumed at a facility, used at a facility, accumulated at a facility, releeised from a facility, and trans- ported from a facility as a waste or as a commercial product or byproduct or component of a commercial product or byproduct. Subtitle C — General Provisions SEC. 321. RELATIONSHIP TO OTHER LAW. (a) In General.— Nothing in this title shall— (1) preempt any State or local law, (2) except as provided in subsection (b), otherwise affect any State or local law or the authority of any State or local govern- ment to adopt or enforce any State or local law, or (3) affect or modify in any way the obligations or liabilities of any person under other Federal law. (b) Effect on MSDS Requirements. — (1) Any State or local law enacted after August 1, 1985, which requires the submission of a material safety data sheet from facility owners or operators shall require that the data sheet be identical in content and format to the data sheet re- quired under subsection (a) of section 311. In addition, a State or locality may require the submission of information which is supplemental to the information required on the data sheet (including information on the location and quantity of hazard- ous chemicals present at the facility), through additional sheets attached to the data sheet or such other means as the State or locality considers appropriate. (2) If any State or local law — (A) is enacted after Aug^ist 1, 1985, and (B) requires such a facility owner or operator who sup- plies a hazardous chemical to any other facility owner or operator to furnish a material safety data sheet to such other facility owner or operator, such requirements shall be identical to the requirements under section 311(a). SEC. 322. TRADE SECRETS. (a) Authority To Withhold Information. — 368 190 (1) General authority. — (A) With regard to a hazardous chemical, an extremely hazardous substance, or a toxic chemi- cal, any person required under section 303(d)(2), 303(d)(3), 311, 312, or 313 to submit information to any other person may withhold from such submittal the specific chemical identity (in- cluding the chemical name and other specific identification), as defined in regulations prescribed by the Administrator under subsection (c), if the person complies with paragraph (2). (B) Any person withholding the specific chemical identity shall, in the place on the submittal where the chemical identi- ty would normally be included, include the generic class or cat- egory of the hazardous chemical, extremely hazardous sub- stance, or toxic chemical (as the case may be). (2) Requirements. — (A) A person is entitled to withhold in- formation under paragraph (1) if such person— (i) claims that such information is a trade secret, on the basis of the factors enumerated in subsection Ob), (ii) includes in the submittal referred to in paragraph (1) an explanation of the reasons why such information is claimed to be a trade secret, based on the factors enumer- ated in subsection (b), including a specific description of why such factors apply, and (iii) submits to the Administrator a copy of such submit- tal, and the information withheld from such submittal. (B) In submitting to the Administrator the information re- quired by subparagraph (A)(iii), a person withholding informa- tion under this subsection may — (i) designate, in writing and in such manner as the Ad- ministrator may prescribe by regulation, the information which such person believes is entitled to be withheld under paragraph (1), and (ii) submit such designated information separately from other information submitted under this subsection. (3) Limitation.— The authority under this subsection to with- hold information shall not apply to information which the Ad- ministrator has determined, in accordance with subsection (c), is not a trade secret. Qy) Trade Secret Factors. — No person required to provide infor- mation under this title may claim that the information is entitled to protection as a trade secret under subsection (a) unless such person shows each of the following: (1) Such person has not disclosed the information to any other person, other than a member of a local emergency plan- ning committee, an officer or employee of the United States or a State or local government, an employee of such person, or a person who is bound by a confidentiality agreement, and such person has taken reasonable measures to protect the confiden- tiality of such information and intends to continue to take such measures. (2) The information is not required to be disclosed, or other- wise made available, to the public under any other Federal or State law. (3) Disclosure of the information is likely to cause substantial harm to the competitive position of such person. 369 191 (4) The chemical identity is not readily discoverable through reverse engineering. (c) Trade Secret Regulations. — As soon as practicable after the date of enactment of this title, the Administrator shall prescribe regulations to implement this section. With respect to subsection (b)(4), such regulations shall be equivalent to comparable provisions in the Occupational Safety and Health Administration Hazard Communication Standard (29 C.F.R. 1910.1200) and any revisions of such standard prescribed by the Secretary of Labor in accordance with the final ruling of the courts of the United States in United Steelworkers of America, AFL-CIO-CLC v. Thorne G. Auchter. (d) Petition for Review. — (1) In general. — Any person may petition the Administrator for the disclosure of the specific chemical identity of a hazard- ous chemical, an extremely hazardous substance, or a toxic chemical which is claimed as a trade secret under this section. The Administrator may, in the absence of a petition under this paragraph, initiate a determination, to be carried out in ac- cordance with this subsection, as to whether information with- held constitutes a trade secret. (2) Initial review. — Within 30 days after the date of receipt of a petition under paragraph (1) (or upon the Administrator's initiative), the Administrator shall review the explanation filed by a trade secret claimant under subsection (a)(2) and deter- mine whether the explanation presents assertions which, if true, are sufficient to support a finding that the specific chemi- cal identity is a trade secret. (3) Finding of sufficient assertions. — (A) If the Administrator determines pursuant to para- graph (2) that the explanation presents sufficient asser- tions to support a finding that the specific chemical identi- ty is a trade secret, the Administrator shall notify the trade secret claimant that he has 30 days to supplement the explanation with detailed information to support the assertions. (B) If the Administrator determines, after receipt of any supplemental supporting detailed information under sub- paragraph (A), that the assertions in the explanation are true and that the specific chemical identity is a trade secret, the Administrator shall so notify the petitioner and the petitioner may seek judicial review of the determina- tion. (C) If the Administrator determines, after receipt of any supplemental supporting detailed information under sub- paragraph (A), that the assertions in the explanation are not true and that the specific chemical identity is not a trade secret, the Administrator shall notify the trade secret claimant that the Administrator intends to release the specific chemical identity. The trade secret claimant has 30 days in which he may appeal the Administrator's determination under this subparagraph to the Administra- tor. If the Administrator does not reverse his determina- tion under this subparagraph in such an appeal by the 370 192 trade secret claimant, the trade secret claimaint may seek judicial review of the determination. (4) Finding of insufficient assertions. — (A) If the Administrator determines pursuant to para- graph (2) that the explanation presents insufficient asser- tions to support a finding that the specific chemical identi- ty is a trade secret, the Administrator shall notify the trade secret claimant that he has 30 days to appeal the de- termination to the Administrator, or, upon a showing of good cause, amend the original explanation by providing supplementary assertions to support the trade secret claim. (B) If the Administrator does not reverse his determina- tion under subparagraph (A) after an appeal or an exami- nation of any supplementary assertions under subpara- graph (A), the Administrator shall so notify the trade secret claimant and the trade secret claimant may seek ju- dicial review of the determination. (C) If the Administrator reverses his determination under subparagraph (A) after an appeal or an examination of any supplementary assertions under subparagraph (A), the procedures under paragraph (3) of this subsection apply. (e) Exception for Information Provided to Health Profes- sionals. — Nothing in this section, or regulations adopted pursuant to this section, shall authorize any person to withhold information which is required to be provided to a health professional, a doctor, or a nurse in accordance with section 323. (f) Providing Information to the Administrator; Availability TO Public. — Any information submitted to the Administrator under subsection (a)(2) or subsection (d)(3) (except a specific chemi- cal identity) shall be available to the public, except that upon a showing satisfactory to the Administrator by any person that the information (or a particular part thereof) to which the Administra- tor has access under this section if made public would divulge in- formation entitled to protection under section 1905 of title 18, United States Code, such information or part shall be considered confidential in accordance with the purposes of that section, except that such information or part may be disclosed to other officers, employees, or authorized representatives of the United States con- cerned with carrying out this title. (g) Information Provided to State. — Upon request by a State, acting through the Governor of the State, the Administrator shall provide to the State any information obtained under subsection (a)(2) and subsection (d)(3). (h) Information on Adverse Effects. — (1) In any case in which the identity of a hazardous chemical or an extremely hazardous substance is claimed as a trade secret, the Governor or State emer- gency response commission established under section 301 shall identify the adverse health effects associated with the hazardous chemical or extremely hazardous substance and shall assure that such information is provided to any person requesting information about such hazardous chemical or extremely hazardous substance. 371 193 (2) In any case in which the identity of a toxic chemical is claimed as a trade secret, the Administrator shall identify the ad- verse health and environmental effects associated with the toxic chemical and shall assure that such information is included in the computer database required by section 313(j) and is provided to any person requesting information about such toxic chemical. (i) Information Provided to Congress.— Notwithstanding any limitation contained in this section or any other provision of law, all information reported to or otherwise obtained by the Adminis- trator (or any representative of the Administrator) under this title shall be made available to a duly authorized committee of the Con- gress upon written request by such a committee. SEC. 323. PROVISION OF INFORMATION TO HEALTH PROFESSIONALS, DOCTORS, AND NURSES. (a) Diagnosis or Treatment by Health Professional.— An owner or operator of a facility which is subject to the requirements of section 311, 312, or 313 shall provide the specific chemical identi- ty, if known, of a hazardous chemical, extremely hazardous sub- stance, or a toxic chemical to any health professional who requests such information in writing if the health professional provides a written statement of need under this subsection and a written con- fidentiality agreement under subsection (d). The written statement of need shall be a statement that the health professional has a rea- sonable basis to suspect that — (1) the information is needed for purposes of diagnosis or treatment of an individual, (2) the individual or individuals being diagnosed or treated have been exposed to the chemical concerned, and (3) knowledge of the specific chemical identity of such chemi- cal will assist in diagnosis or treatment. Following such a written request, the owner or operator to whom such request is made shall promptly provide the requested informa- tion to the health professional. The authority to withhold the spe- cific chemical identity of a chemical under section 322 when such information is a trade secret shall not apply to information re- quired to be provided under this subsection, subject to the provi- sions of subsection (d). (b) Medical Emergency. — An owner or operator of a facility which is subject to the requirements of section 311, 312, or 313 shall provide a copy of a material safety data sheet, an inventory form, or a toxic chemical release form, including the specific chemi- cal identity, if known, of a hazardous chemical, extremely hazard- ous substance, or a toxic chemical, to any treating physician or nurse who requests such information if such physician or nurse de- termines that — (Da medical emergency exists, (2) the specific chemical identity of the chemical concerned is necessary for or will assist in emergency or first-aid diagnosis or treatment, and (3) the individual or individuals being diagnosed or treated have been exposed to the chemical concerned. Immediately following such a request, the owner or operator to whom such request is made shall provide the requested informa- 372 194 tion to the physician or nurse. The authority to withhold the specif- ic chemical identity of a chemical from a material safety data sheet, an inventory form, or a toxic chemical release form under section 322 when such information is a trade secret shall not apply to information required to be provided to a treating physician or nurse under this subsection. No written confidentiality agreement or statement of need shall be required as a precondition of such disclosure, but the owner or operator disclosing such information may require a written confidentiality agreement in accordance with subsection (d) and a statement setting forth the items listed in paragraphs (1) through (3) as soon as circumstances permit. (c) Preventive Measures by Local Health Professionals. — (1) Provision of information. — An owner or operator of a facility subject to the requirements of section 311, 312, or 313 shall provide the specific chemical identity, if known, of a haz- ardous chemical, an extremely hazardous substance, or a toxic chemical to any health professional (such as a physician, toxi- cologist, or epidemiologist) — (A) who is a local government employee or a person under contract with the local government, and (B) who requests such information in writing and pro- vides a written statement of need under paragraph (2) and a written confidentiality agreement under subsection (d). Following such a written request, the owner or operator to whom such request is made shall promptly provide the request- ed information to the local health professional. The authority to withhold the specific chemical identity of a chemical under section 322 when such information is a trade secret shall not apply to information required to be provided under this subsec- tion, subject to the provisions of subsection (d). (2) Written statement of need. — The written statement of need shall be a statement th;at describes with reasonable detail one or more of the following health needs for the information: (A) To assess exposure of persons living in a local com- munity to the hazards of the chemical concerned. (B) To conduct or assess sampling to determine exposure levels of various population groups. (C) To conduct periodic medical surveillance of exposed population groups. (D) To provide medical treatment to exposed individuals or population groups. (E) To conduct studies to determine the health effects of exposure. (F) To conduct studies to aid in the identification of a chemical that may reasonably be anticipated to cause an observed health effect. (d) CoNFiDENTiAUTY AGREEMENT. — Any person obtaining infor- mation under subsection (a) or (c) shall, in accordance with such subsection (a) or (c), be required to agree in a written confidential- ity agreement that he will not use the information for any purpose other than the health needs asserted in the statement of need, except as may otherwise be authorized by the terms of the agree- ment or by the person providing such information. Nothing in this 373 195 subsection shall preclude the parties to a confidentiality agreement from pursuing any remedies to the extent permitted by law. (e) Regulations. — As soon as practicable after the date of the en- actment of this title, the Administrator shall promulgate regula- tions describing criteria and parameters for the statement of need under subsection (a) and (c) and the confidentiality agreement under subsection (d). SEC. 324. PUBLIC AVAILABILITY OF PLANS, DATA SHEETS, FORMS, AND FOLLOWUP NOTICES. (a) Availability to Pubuc. — Each emergency response plan, ma- terial safety data sheet, list described in section 311(a)(2), inventory form, toxic chemical release form, and followup emergency notice shall be made available to the general public, consistent with sec- tion 322, during normal working hours at the location or locations designated by the Administrator, Governor, State emergency re- sponse commission, or local emergency planning committee, as ap- propriate. Upon request by an owner or operator of a facility sub- ject to the requirements of section 312, the State emergency re- sponse commission and the appropriate local emergency planning committee shall withhold from disclosure under this section the lo- cation of any specific chemical required by section 312(dX2) to be contained in an inventory form as tier II information. (b) Notice of Pubuc Availabiuty. — Each local emergency plan- ning committee shall annually publish a notice in local newspapers that the emergency response plan, material safety data sheets and inventory forms have been submitted under this section. The notice shall state that followup emergency notices may subsequently be issued. Such notice shall announce that members of the public who wish to review any such plan, sheet, form, or followup notice may do so at the location designated under subsection (a). SEC. 325. ENFORCEMENT. (a) Civil Penalties for Emergency Planning. — The Adminis- trator may order a facility owner or operator (except an owner or operator of a facility designated under section 302(bX2)) to comply with section 302(c) and section 303(d). The United States district court for the district in which the facility is located shall have ju- risdiction to enforce the order, and any person who violates or fails to obey such an order shall be liable to the United States for a civil p^enalty of not more than $25,000 for each day in which such viola- tion occurs or such failure to comply continues. (b) Civil, Administrative, and Criminal Penalties for Emer- gency Notification. — (1) Class i administrative penalty. — (A) A civil penalty of not more than $25,000 per violation may be assessed by the Administrator in the case of a violation of the requirements of section 304. (B) No civil penalty may be assessed under this subsection unless the person accused of the violation is given notice and opportunity for a hearing with respect to the violation. (C) In determining the amount of any penalty assessed pur- suant to this subsection, the Administrator shall take into ac- count the nature, circumstances, extent and gravity of the vio- lation or violations and, with respect to the violator, ability to 374 196 pay, any prior history of such violations, the degree of culpabil- ity, economic benefit or savings (if any) resulting from the vio- lation, and such other matters as justice may require. (2) Class ii administrative penalty.— A civil penalty of not more than $25,000 per day for each day during which the viola- tion continues may be assessed by the Administrator in the case of a violation of the requirements of section 304. In the case of a second or subsequent violation the amount of such penalty may be not more than $75,000 for each day during which the violation continues. Any civil penalty under this subsection shall be assessed and collected in the same manner, and subject to the same provisions, as in the case of civil penal- ties assessed and collected under section 16 of the Toxic Sub- stances Control Act. In any proceeding for the assessment of a civil penalty under this subsection the Administrator may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents and may promulgate rules for discovery procedures. (3) Judicial assessment. — The Administrator may bring an action in the United States District court for the appropriate district to assess and collect a penalty of not more than $25,000 per day for each day during which the violation continues in the case of a violation of the requirements of section 304. In the case of a second or subsequent violation, the amount of such penalty may be not more than $75,000 for each day during which the violation continues. (4) Criminal penalties. — Any person who knowingly and willfully fails to provide notice in accordance with section 304 shall, upon conviction, be fined not more than $25,000 or im- prisoned for not more than two years, or both (or in the case of a second or subsequent conviction, shall be fined not more than $50,000 or imprisoned for not more than five years, or both). (c) Civil and Administrative Penalties for Reporting Re- quirements. — (1) Any person (other than a governmental entity) who violates any requirement of section 312 or 313 shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. (2) Any person (other than a governmental entity) who violates any requirement of section 311 or 323(b), and any person who fails to furnish to the Administrator information required under section 322(a)(2) or requested by the Administrator under section 322(d) shall be liable to the United States for a civil penalty in an amount not to exceed $10,000 for each such violation. (3) Each day a violation described in paragraph (1) or (2) contin- ues shall, for purposes of this subsection, constitute a separate vio- lation. (4) The Administrator may assess any civil penalty for which a person is liable under this subsection by administrative order or may bring an action to assess and collect the penalty in the United States district court for the district in which the person from whom the penalty is sought resides or in which such person's principal place of business is located. 375 197 (d) Civil, Administrative, and Criminal Penalties With Re- spect TO Trade Secrets. — (1) Civil and administrative penalty for frivolous claims. — If the Administrator determines — (A)(i) under section 322(dX4) that an explanation submit- ted by a trade secret claimant presents insufficient asser- tions to support a finding that a specific chemical identity is a trade secret, or (ii) after receiving supplemental sup- porting detailed information under section 322(dX3XA), that the specific chemical identity is not a trade secret; and (B) that the trade secret claim is frivolous, the trade secret claimant is liable for a penalty of $25,000 per claim. The Administrator may assess the penalty by adminis- trative order or may bring an action in the appropriate district court of the United States to assess and collect the penalty. (2) Criminal penalty for disclosure of trade secret infor- mation. — Any person who knowingly and willfully divulges or discloses any information entitled to protection under section 322 shall, upon conviction, be subject to a fine of not more than $20,000 or to imprisonment not to exceed one year, or both. (e) Special Enforcement Provisions for Section 323.— When- ever any facility owner or operator required to provide information under section 323 to a health professional who has requested such information fails or refuses to provide such information in accord- ance with such section, such health professional may bring an action in the appropriate United States district court to require such facility owner or operator to provide the information. Such court shall have jurisdiction to issue such orders and take such other action as may be necessary to enforce the requirements of section 323. (f) Procedures for Administrative Penalties.— (1) Any person against whom a civil penalty is assessed under this section may obtain review thereof in the appropri- ate district court of the United States by filing a notice of appeal in such court within 30 days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the Administrator. The Administrator shall proYnptly file in such court a certified copy of the record upon which such violation was found or such penalty imposed. If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order or after the appro- priate court has entered final judgment in favor of the United States, the Administrator may request the Attorney General of the United States to institute a civil action in an appropriate district court of the United States to collect the penalty, and such court shall have jurisdiction to hear and decide any such action. In hearing such action, the court shall have authority to review the violation and the assessment of the civil penalty on the record. (2) The Administrator may issue subpoenas for the attend- ance and testimony of witnesses and the production of relevant papers, books, or documents in connection with hearings under 75-032 0-90-14 376 198 this section. In case of contumacy or refusal to obey a subpoe- na issued pursuant- to this paragraph and served upon any person, the district court of the United States for any district in which such person is found, resides, or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the administrative law judge or to appear and produce documents before the ad- ministrative law judge, or both, and any failure to obey such order of the court may be punished by such court as a con- tempt thereof. SEC. 326. CIVIL ACTIONS. (a) Authority To Bring Civil Actions.— (1) Citizen suits.— Except as provided in subsection (e), any person may commence a civil action on his own behalf against the following: (A) An owner or operator of a facility for failure to do any of the following: (i) Submit a followup emergency notice under sec- tion 304(c). (ii) Submit a material safety data sheet or a list under section 311(a). (iii) Complete and submit an inventory form under section 312(a) containing tier I information as de- scribed in section 312(d)(1). (iv) Complete and submit a toxic chemical release form under section 313(a). (B) The Administrator for failure to do any of the follow- ing: (i) Publish inventory forms under section 312(g). (ii) Respond to a petition to add or delete a chemical under section 313(eXl) within 180 days after receipt of the petition. (iii) Publish a toxic chemical release form under 313(g). (iv) Establish a computer database m accordance with section 313(j). (v) Promulgate trade secret regulations under sec- tion 322(c). (vi) Render a decision in response to a petition under section 322(d) within 9 months after receipt of the petition. (C) The Administrator, a State Governor, or a State emergency response commission, for failure to provide a mechanism for public availability of information in accord- ance with section 324(a). (D) A State Governor or a State emergency response commission for failure to respond to a request for tier II information under section 312(eX3) within 120 days after the date of receipt of the request. (2) State or local suits.— 377 199 (A) Any State or local government may commence a civil action against an owner or operator of a facility for failure to do any of the following: (i) Provide notification to the emergency response commission in the State under section 302(c). (ii) Submit a material safety data sheet or a list under section 311(a). (iii) Make available information requested under section 311(c). (iv) Prepare and submit an inventory form under section 312(a) containing tier I information. (B) Any State emergency response commission or local emergency planning committee may commence a civil action against an owner or operator of a facility for failure to provide information under section 303(d) or for failure to submit tier II information under section 312(e)(1). (C) Any State may commence a civil action against the Administrator for failure to provide information to the State under section 322(g). (b) Venue. — (1) Any action under subsection (a) against an owner or oper- ator of a facility shall be brought in the district court for the district in which the alleged violation occurred. (2) Any action under subsection (a) against the Administra- tor may be brought in the United States District Court for the District of Columbia. (c) Relief.— The district court shall have jurisdiction in actions brought under subsection (a) against an owner or operator of a fa- cility to enforce the requirement concerned and to impose any civil penalty provided for violation of that requirement. The district court shall have jurisdiction in actions brought under subsection (a) against the Administrator to order the Administrator to perform the act or duty concerned. (d) Notice. — (1) No action may be commenced under subsection (a)(1)(A) prior to 60 days after the plaintiff has given notice of the al- leged violation to the Administrator, the State in which the al- leged violation occurs, and the alleged violator. Notice under this paragraph shall be given in such manner £is the Adminis- trator shall prescribe by regulation. (2) No action may be commenced under subsection (a)(1)(B) or (a)(1)(C) prior to 60 days after the date on which the plaintiff gives notice to the Administrator, State Governor, or State emergency response commission (as the case may be) that the plaintiff will commence the action. Notice under this para- graph shall be given in such manner as the Administrator shall prescribe by regulation. (e) Limitation. — No action may be commenced under subsection (a) against an owner or operator of a facility if the Administrator has commenced and is diligently pursuing an administrative order or civil action to enforce the requirement concerned or to impose a civil penalty under this Act with respect to the violation of the re- quirement. 378 (f) Costs.— The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (in- cluding reasonable attorney and expert witness fees) to the prevail- ing or the substantially prevailing party whenever the court deter- mines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Fed- eral Rules of Civil Procedure. (g) Other Rights. — Nothing in this section shall restrict or expand any right which any person (or class of persons) may have under any Federal or State statute or common law to seek enforce- ment of any requirement or to seek any other relief (including relief against the Administrator or a State agency). (h) Intervention.— (1) By the united states. — In any action under this section the United States or the State, or both, if not a party, may in- tervene £is a matter of right. (2) By persons.— In any action under this section, any person may intervene as a matter of right when such person has a direct interest which is or may be adversely affected by the action and the disposition of the action may, as a practical matter, impair or impede the person's ability to protect that interest unless the Administrator or the State shows that the person's interest is adequately represented by existing parties in the action. SEC. 327. EXEMPTION. Except as provided in section 304, this title does not apply to the transportation, including the storage incident to such transporta- tion, of any substance or chemical subject to the requirements of this title, including the transportation and distribution of natural gas. SEC. 328. REGULATIONS. The Administrator may prescribe such regulations as may be necessary to carry out this title. SEC. 329. DEFINITIONS. For purposes of this title — (1) Administrator.— The term "Administrator" means the Administrator of the Environmental Protection Agency. (2) Environment.— The term "environment" includes water, air, and land and the interrelationship which exists among and between water, air, and land and all living things. (3) Extremely hazardous substance.— The term "extremely hazardous substance" means a substance on the list described in section 302(a)(2). (4) Faciuty.— The term "facility" means all buildings, equip- ment, structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person). For purposes of section 304, the term includes motor vehicles, rolling stock, and aircraft. 379 201 (5) Hazardous chemical. — The term "hazardous chemical" has the meaning given such term by section 311(e). (6) Material safety data sheet. — The term "material safety data sheet" means the sheet required to be developed under section 1910.1200(g) of title 29 of the Code of Federal Regula- tions, as that section may be amended from time to time. (7) Person.— The term "person" means any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, com- mission, political subdivision of a State, or interstate body. (8) Release.— The term "release" means any spilling, leak- ing, pumping, pouring, emitting, emptying, discharging, inject- ing, escaping, leaching, dumping, or disposing into the environ- ment (including the abandonment or discarding of barrels, con- tainers, and other closed receptacles) of any hazardous chemi- cal, extremely hazardous subst-ance, or toxic chemical. (9) State.— The term "State'' means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Is- lands, the Northern Mariana Islands, and any other territory or possession over which the United States has jurisdiction. (10) Toxic chemical.— The term "toxic chemical" means a substance on the list described in section 313(c). SEC. 330. AUTHORIZATION OF APPROPRIATIONS. There are authorized to be appropriated for fiscal years begin- ning after September 30, 1986, such sums as may be necessary to carry out this title. TITLE IV— RADON GAS AND INDOOR AIR QUALITY RESEARCH SEC. 401. SHORT TITLE. This title may be cited as the "Radon Gas and Indoor Air Quality Research Act of 1986". SEC. 402. FINDINGS. The Congress finds that: (1) High levels of radon gas pose a serious health threat in structures in certain areas of the country. (2) Various scientific studies have suggested that exposure to radon, including exposure to naturally occurring radon and indoor air pollutants, poses a public health risk. (3) Existing Federal radon and indoor air pollutant research programs are fragmented and underfunded. (4) An adequate information base concerning exposure to radon and indoor air pollutants should be developed by the ap- propriate Federal agencies. SEC. 403. RADON GAS AND INDOOR AIR QUALITY RESEARCH PROGRAM. (a) Design of Program.— The Administrator of the Environmen- tal Protection Agency shall establish a research program with re- spect to radon gas and indoor air quality. Such program shall be designed to— (1) gather data and information on all aspects of indoor air quality in order to contribute to the understanding of health 380 202 problexns associated with the existence of air pollutants in the indoor environment; (2) coordinate Federal, State, local, and private research and development efforts relating to the improvement of indoor air quality; and (3) assess appropriate Federal Government actions to miti- gate the environmental and health risks associated with indoor air quality problems. (b) Program Requirements.— The research program required under this section shall include — (1) research and development concerning the identification, characterization, and monitoring of the sources and levels of indoor air pollution, including radon, which includes research and development relating to — (A) the measurement of various pollutant concentrations and their strengths and sources, (B) high-risk building types, and (C) instruments for indoor air quality data collection; (2) research relating to the effects of indoor air pollution and radon on human health; (3) research and development relating to control technologies or other mitigation measures to prevent or abate indoor air pollution (including the development, evaluation, and testing of individual and generic control devices and systems); (4) demonstration of methods for reducing or eliminating indoor air pollution and radon, including sealing, venting, and other methods that the Administrator determines may be ef- fective; (5) research, to be carried out in conjunction with the Secre- tary of Housing and Urban Development, for the purpose of de- veloping— (A) methods for assessing the potential for radon con- tamination of new construction, including (but not limited to) consideration of the moisture content of soil, porosity of soil, and radon content of soil; and (B) design measures to avoid indoor air pollution; and (6) the dissemination of information to assure the public availability of the findings of the activities under this section. (c) Advisory Committees.— The Administrator shall establish a committee comprised of individuals representing Federal agencies concerned with various aspects of indoor air quality and an adviso- ry group comprised of individuals representing the States, the sci- entific community, industry, and public interest organizations to assist him in carrying out the research program for radon gas and indoor air quality. (d) Implementation Plan.— Not later than 90 days after the en- actment of this Act, the Administrator shall submit to the Con- gress a plan for implementation of the research program under this section. Such plan shall also be submitted to the EPA Science Advisory Board, which shall, within a reasonable period of time, submit its comments on such plan to Congress. (e) Report.— Not later than 2 years after the enactment of this Act, the Administrator shall submit to Congress a report respecting 381 203 his activities under this section and making such recommendations as appropriate. SEC. 404. CONSTRUCTION OF TITLE. Nothing in this title shall be construed to authorize the Adminis- trator to carry out any regulatory program or any activity other than research, development, and related reporting, information dis- semination, and coordination activities specified in this title. Noth- ing in this title shall be construed to limit the authority of the Ad- ministrator or of any other agency or instrumentality of the United States under any other authority of law. SEC. 405. AUTHORIZATIONS. There are authorized to be appropriated to carry out the activi- ties under this title and under section 118(k) of the Superfund Amendments and Reauthorization Act of 1986 (relating to radon gas assessment and demonstration program) not to exceed $5,000,000 for each of the fiscal years 1987, 1988, and 1989. Of such sums appropriated in fiscal years 1987 and 1988, two-fifths shall be reserved for the implementation of section 118(kX2). TITLE V— AMENDMENTS OF THE INTERNAL REVENUE CODE OF 1986 SEC. 501. SHORT TITLE. This title may be cited as the "Superfund Revenue Act of 1986". PART I— SUPERFUND AND ITS REVENUE SOURCES SEC. 5H. EXTENSION OF ENVIRONMENTAL TAXES. (a) In General.— Subsection (d) of section 4611 of the Internal Revenue Code of 1986 (relating to termination) is amended to read as follows: "(d) Appucation of Taxes. — "(1) In GENERAL. — Except as provided in paragraphs (2) and (3), the taxes imposed by this section shall apply after Decem- ber 31, 1986, and before January 1, 1992. "(2) No TAX IF UNOBUGATED BALANCE IN FUND EXCEEDS $3,500,000,000.— If on December 31, 1989, or December 31, 1990—^ "(A) the unobligated balance in the Hazardous Sub- stance Superfund exceeds $3,500,000,000, and "(B) the Secretary, after consultation with the Adminis- trator of the Environmental Protection Agency, deter- mines that the unobligated balance in the Hazardous Sub- stance Superfund will exceed $3,500,000,000 on Decem- ber 31 of 1990 or 1991, respectively, if no tax is imposed under section 59 A, this section, and sections 4661 and 4671, then no tax shall be imposed under this section during 1990 or 1991, as the case may be. "(3) No TAX IF AMOUNTS COLLECTED EXCEED $6,650,000,000. — "(A) Estimates by secretary.— The Secretary as of the close of each calendar quarter (and at such other times as the Secretary determines appropriate) shall make an esti- mate of the amount of taxes which will be collected under 382 204 section 59A, this section, and sections 4661 and 4671 and credited to the Hazardous Substance Superfund during the period beginning January 1, 1987, and ending December 31, 1991. "(B) Termination if $6,650,ooo,ooo credited before Jan- uary 1, 1992. — If the Secretary estimates under subpara- graph (A) that more than $6,650,000,000 will be credited to the Fund before January 1, 1992, no tax shall be imposed under this section after the date on which (as estimated by the Secretary) $6,650,000,000 will be so credited to the Fund.". (b) Technical Amendment. — Section 303 of the Comprehensive Environmental Response Compensation, and Liability Act of 1980 is hereby repealed. (c) Effective Date. — The amendments made by this section shall take effect on January 1, 1987. SEC. 512. INCREASE IN TAX ON PETROLEUM. (a) In General. — Subsections (a) and (b) of section 4611 of the In- ternal Revenue Code of 1986 (relating to environmental tax on pe- troleum) are each amended by striking out "of 0.79 cent a barrel" and inserting in lieu thereof "at the rate specified in subsection (c)". (b) Increase in Tax.— Section 4611 of such Code is amended by redesignating subsections (c) and (d) as subsections (d) and (e), re- spectively, and by inserting after subsection (b) the following new subsection: "(c) Rate of Tax.— "(1) In general.— Except as provided in paragraph (2), the rate of the taxes imposed by this section is 8.2 cents a barrel. "(2) Imported petroleum products.— The rate of the tax im- posed by subsection (a)(2) shall be 11.7 cents a barrel." (c) Allowance of Credit for Crude Oil Returned to Pipe- line.— Section 4612 of such Code (relating to definitions and special rules) is amended by redesignating subsection (c) as subsection (d) and by inserting after subsection (b) the following new subsection: "(c) Credit Where Crude Oil Returned to Pipeune.— Under regulations prescribed by the Secretary, if an operator of a United States refinery — "(1) removes crude oil from a pipeline, and "(2) returns a portion of such crude oil into a stream of other crude oil in the same pipeline, there shall be allowed as a credit against the tax imposed by sec- tion 4611 to such operator an amount equal to the product of the rate of tax imposed by section 4611 on the crude oil so removed by such operator and the number of barrels of crude oil returned by such operator to such pipeline. Any crude oil so returned shall be treated for purposes of this subchapter as crude oil on which no tax has been imposed by section 4611.' (d) Effective Date.— The amendments made by this section shall take effect on January 1, 1987. SEC. 513. CHANGES RELATING TO TAX ON CERTAIN CHEMICALS. (a) Increase in Rate of Tax on Xylene.— The table contained in subsection (b) of section 4661 of the Internal Revenue Code of 1986 383 I » 205 (relating to tax on certain chemicals) is amended by adding at the end thereof the following new sentence: "For periods before 1992, the item relating to xylene in the preced- ing table shall be applied by substituting '10.13' for '4.87'." (b) Exemption for Exports of Taxable Chemicals.— (1) Section 4662 of such Code (relating to definitions and spe- cial rules) is amended by redesignating subsection (e) as subsec- tion (f) and by inserting after subsection (d) the following new subsection: "(e) Exemption for Exports of Taxable Chemicals.— "(1) Tax-free sales.— "(A) In general.— No tax shall be imposed under sec- tion 4661 on the sale by the manufacturer or producer of any taxable chemical for export, or for resale by the pur- chaser to a second purchaser for export. "(B) Proof of export required. — Rules similar to the rules of section 4221(b) shall apply for purposes of subpara- graph (A). "(2) Credit or refund where tax paid. — "(A) In general.— Except as provided in subparagraph (B), if- "(i) tax under section 4661 was paid with respect to any taxable chemical, and "(ii)(I) such chemical was exported by any person, or "(II) such chemical was used as a material in the manufacture or production of a substance which was exported by any person and which, at the time of export, was a taxable substance (as defined in section 4672(a)), credit or refund (without interest) of such tax shall be al- lowed or made to the person who paid such tax. "(B) Condition to allowance.— No credit or refund shall be allowed or made under subparagraph (A) unless the person who paid the tax establishes that he — "(i) has repaid or agreed to repay the amount of the tax to the person who exported the taxable chemical or taxable substance (as so defined), or "(ii) has obtained the written consent of such export- er to the allowance of the credit or the making of the refund. "(3) Regulations. — The Secretary shall prescribe such regu- lations as may be necessary to carry out the purposes of this subsection." (2) Paragraph (1) of section 4662(d) of such Code (relating to refund or credit for certain uses) is amended — (A) by striking out "the sale of which by such person would be taxable under such section" and inserting in lieu thereof "which is a taxable chemical", and (B) by striking out "imposed by such section on the other substance manufactured or produced" and inserting in lieu thereof "imposed by such section on the other substance manufactured or produced (or which would have been im- posed by such section on such other substance but for sub- section (b) or (e) of this section)". 384 206 (c) Special Rule for Xylene.— Subsection (b) of section 4662 of such Code (relating to exceptions; other special rules) is amended by adding after paragraph (6) the following new paragraph: "(7) Special rule for xylene.— Except in the case of any substance imported into the United States or exported from the United States, the term 'xylene' does not include any sepa- rated isomer of xylene." (d) Exemption for Certain Recycled Chemicals.— Subsection (b) of section 4662 of such Code (relating to exceptions; other special rules) is amended by adding after paragraph (7) the following new paragraph: "(8) Recycled chromium, cobalt, and nickel.— "(A) In general. — No tax shall be imposed under sec- tion 4661(a) on any chromium, cobalt, or nickel which is di- verted or recovered in the United States from any solid waste as part of a recycling process (and not as part of the original manufacturing or production process). "(B) Exemption not to apply while corrective action uncompleted.— Subparagraph (A) shall not apply during any period that required corrective action by the taxpayer at the unit at which the recycling occurs is uncompleted. *XC) Required corrective action.— For purposes of sub- paragraph (B), required corrective action shall be treated as uncompleted during the period — **(i) beginning on the date that the corrective action is required by the Administrator or an authorized State pursuant to — "(I) a final permit under section 3005 of the Solid Waste Disposal Act or a final order under section 3004 or 3008 of such Act, or "(II) a final order under section 106 of the Com- prehensive Environmental Response, Compensa- tion, and Liability Act of 1980, and "(ii) ending on the date the Administrator or such State i^s the case may be) certifies to the Secretary that such corrective action has been completed. "(D) Special rule for groundwater treatment.— In the case of corrective action requiring groundwater treat- ment, such action shall be treated as completed as of the close of the 10-year period beginning on the date such action is required if such treatment complies with the permit or order applicable under subparagraph (CXi) throughout such period. The preceding sentence shall cease to apply beginning on the date such treatment ceases to comply with such permit or order. "(E) SouD waste.— For purposes of this paragraph, the term 'solid waste' has the meaning given such term by sec- tion 1004 of the Solid Waste Disposal Act, except that such term shall not include any byproduct, coproduct, or other waste from any process of smelting, refining, or otherwise extracting any metal." (e) Exemption for Animal Feed Substances.— 385 207 (1) In general.— Subsection (b) of section 4662 of such Code (relating to exceptions; other special rules) is amended by adding after paragraph (8) the following new paragraph: "(9) Substances used in the production of animal feed. — "(A) In general. — In the case of— '*(i) nitric acid, "(ii) sulfuric acid, **(iii) ammonia, or "(iv) methane used to produce ammonia, which is a qualified animal feed substance, no tax shall be imposed under section 4661(a). "(B) Qualified animal feed substance. — For purposes of this section, the term 'qualified animal feed substance' means any substance — "(i) used in a qualified animal feed use by the manu- facturer, producer, or importer, "(ii) sold for use by any purchaser in a qualified animal feed use, or *Xiii) sold for resale by any purchaser for use, or resale for ultimate use, in a qualified animal feed use. "(C) Qualified animal feed use.— The term "qualified animal feed use" means any use in the manufacture or production of animal feed or animal feed supplements, or of ingredients used in animal feed or animal feed supple- ments. "(D) Taxation of nonqualified sale or use. — For pur- poses of section 4661(a), if no tax was imposed by such sec- tion on the sale or use of any chemical by reason of sub- paragraph (A), the 1st person who sells or uses such chemi- cal other than in a sale or use described in subparagraph (A) shall be treated as the manufacturer of such chemi- cal." (2) Refund or credit for substances used in the produc- tion OF animal feed.— Subsection (d) of section 4662 of such Code (relating to refunds and credits with respect to the tax on certain chemicals) is amended by adding at the end thereof the following new paragraph: "(4) Use in the production of animal feed.— Under regula- tions prescribed by the Secretary, if— "(A) a tax under section 4661 was paid with respect to nitric acid, sulfuric acid, ammonia, or methane used to produce ammonia, without regard to subsection (b)(9), and "(B) any person uses such substance as a qualified animal feed substance, then an amount equal to the excess of the tax so paid over the tax determined with regard to subsection (b)(9) shall be allowed as a credit or refund (without interest) to such person in the same manner as if it were an overpayment of tax imposed by this section." (f) Certain Exchanges by Taxpayers Not Treated as Sales.— Subsection (c) of section 4662 of such Code (relating to use by manufacturers) is amended to read as follows: "(c) Use and Certain Exchanges by Manufacturer, Etc.— 386 208 "(1) Use treated as sale.— Except as provided in subsections (b) and (e), if any person manufactures, produces, or imports any taxable chemical and uses such chemical, then such person shall be liable for tax under section 4661 in the same manner as if such chemical were sold by such person. "(2) Special rules for inventory exchanges.— *XA) In general.— Except as provided in this paragraph, in any case in which a manufacturer, producer, or import- er of a taxable chemical exchanges such chemical as part of an inventory exchange with another person — "(i) such exchange shall not be treated as a sale, and '*(ii) such other person shall, for purposes of section 4661, be treated as the manufacturer, producer, or im- porter of such chemical. "(B) Registration requirement.— Subparagraph (A) shall not apply to any inventory exchange unless— *'(i) both parties are registered with the Secretary as manufacturers, producers, or importers of taxable chemicals, and "(ii) the person receiving the taxable chemical has, at such time as the Secretary may prescribe, notified the manufacturer, producer, or importer of such per- son's registration number and the internal revenue district in which such person is registered. **(C) Inventory exchange.— For purposes of this para- graph, the term 'inventory exchange' means any exchange in which 2 persons exchange property which is, in the hands of each person, property described in section 1221(1).". (g) Special Rules Relating to Hydrocarbon Streams Contain- ing Organic Taxable Chemicals.— Subsection (b) of section 4662 of such Code (relating to exceptions; other special rules) is amended by adding after paragraph (9) the following new paragraph: "(10) Hydrocarbon streams containing mixtures of or- ganic TAXABLE CHEMICALS. — "(A) In general.— No tax shall be imposed under sec- tion 4661(a) on any organic taxable chemical while such chemical is part of an intermediate hydrocarbon stream containing a mixture of organic taxable chemicals. "(B) Removal, etc., treated as use.— For purposes of this part, if any organic taxable chemical on which no tax was imposed by reason of subparagraph (A) is isolated, ex- tracted, or otherwise removed from, or ceases to be part of, an intermediate hydrocarbon stream — "(i) such isolation, extraction, removal, or cessation shall be treated as use by the person causing such event, and "(ii) such person shall be treated as the manufactur- er of such chemical. "(C) Registration requirement.— Subparagraph (A) shall not apply to any sale of any intermediate hydrocar- bon stream unless the registration requirements of clauses (i) and (ii) of subsection (c)(2)(B) are satisfied. 387 209 "(D) Organic taxable chemical. — For purposes of this paragraph, the term 'organic taxable chemical' means any taxable chemical which is an organic substance." (h) Effective Dates.— (1) In general.— Except as otherwise provided in this subsec- tion, the amendments made by this section shall take effect on January 1, 1987. (2) Repeal of tax on xylene for periods before October i, 1985.— (A) Refund of tax previously imposed. — (i) In general. — In the case of any tax imposed by section 4661 of the Internal Revenue Code of 1954 on the sale or use of xylene before October 1, 1985, such tax (including interest, additions to tax, and additional amounts) shall not be assessed, and if assessed, the as- sessment shall be abated, and if collected shall be credited or refunded (with interest) as an overpay- ment. (ii) Condition to allowance. — Clause (i) shall not apply to a sale of xylene unless the person who (but for clause (i)) would be liable for the tax imposed by section 4661 on such sale meets requirements similar to the requirements of paragraph (1) of section 6416(a) of such Code. For purposes of the preceding sentence, subparagraph (A) of section 6416(a)(1) of such Code shall be applied without regard to the material preced- ing ''has not collected". (B) Waiver of statute of limitations. — If on the date of the enactment of this Act (or at any time within 1 year after such date of enactment) refund or credit of any over- payment of tax resulting from the application of subpara- graph (A) is barred by any law or rule of law, refund or credit of such overpayment shall, nevertheless, be made or allowed if claim therefor is filed before the date 1 year after the date of the enactment of this Act. (C) Xylene to include isomers. — For purposes of this paragraph, the term "xylene" shall include any isomer of xylene whether or not separated. (3) Inventory exchanges. — (A) In general.— Except as otherwise provided in this paragraph, the amendment made by subsection (f) shall apply as if included in the amendments made by section 211 of the Hazardous Substance Response Revenue Act of 1980. (B) Recipient must agree to treatment as manufac- turer. — In the case of any inventory exchange before Jan- uary 1, 1987, the amendment made by subsection (f) shall apply only if the person receiving the chemical from the manufacturer, producer, or importer in the exchange agrees to be treated as the manufacturer, producer, or im- porter of such chemical for purposes of subchapter B of chapter 38 of the Internal Revenue Code of 1954. (C) Exception where manufacturer paid tax.— In the case of any inventory exchange before January 1, 1987, the 388 210 amendment made by subsection (f) shall not apply if the manufacturer, producer, or importer treated such ex- change as a sale for purposes of section 4661 of such Code and paid the tax imposed by such section. (D) Registration requirements.— Section 4662(c)(2)(B) of such Code (as added by subsection (f)) shall apply to ex- changes made after December 31, 1986. (4) Exports of taxable substances.— Subclause (II) of sec- tion 4662(e)(2)(A)(ii) of such Code (as added by this section) shall not apply to the export of any taxable substance (as de- fined in section 4672(a) of such Code) before January 1, 1989. (5) Sales of intermediate hydrocarbon streams. — (A) In general. — Except as otherwise provided in this paragraph, the amendment made by subsection (g) shall apply as if included in the amendments made by section 211 of the Hazardous Substances Response Revenue Act of 1980. (B) Purchaser must agree to treatment as manufac- turer. — In the case of any sale before January 1, 1987, of any intermediate hydrocarbon stream, the amendment made by subsection (g) shall apply only if the purchaser agrees to be treated as the manufacturer, producer, or im- porter for purposes of subchapter B of chapter 38 of such Code. (C) Exception where manufacturer paid tax. — In the case of any sale before January 1, 1987, of any intermedi- ate hydrocarbon stream, the amendment made by subsec- tion (g) shall not apply if the manufacturer, producer, or importer of such stream paid the tax imposed by section 4661 with respect to such sale on all taxable chemicals contained in such stream. (D) Registration requirements. — Section 4662(b)(10)(C) of such Code (as added by subsection (g)) shall apply to ex- changes made after December 31, 1986. SEC. 514. REPEAL OF POST-CLOSURE TAX AND TRUST FUND. (a) Repeal of Tax.— (1) Subchapter C of chapter 38 of the Internal Revenue Code of 1986 (relating to tax on hazardous wastes) is hereby re- pealed. (2) The table of subchapters for such chapter 38 is amended by striking out the item relating to subchapter C. (b) Repeal of Trust Fund.— Section 232 of the Hazardous Sub- stance Response Revenue Act of 1980 is hereby repealed. (c) Effective Date. — (1) In general.— The amendments made by this section shall take effect on October 1, 1983. (2) Waiver of statute of limitations.— If on the date of the enactment of this Act (or at any time within 1 year after such date of enactment) refund or credit of any overpayment of tax resulting from the application of this section is barred by any law or rule of law, refund or credit of such overpayment shall, nevertheless, be made or allowed if claim therefor is filed 389 211 before the date 1 year after the date of the enactment of this Act. SEC. 515. TAX ON CERTAIN IMPORTED SUBSTANCES DERIVED FROM TAX- ABLE CHEMICALS. (a) General Rule. — Chapter 38 of the Internal Revenue Code of 1986 is amended by adding after subchapter B the following new subchapter: "Subchapter C — Tax on Certain Imported Substances "Sec. 4671. Imposition of tax. "Sec. 4672. Definitions and special rules. "SEC. 4671. IMPOSITION OF TAX. "(a) General Rule.— There is hereby imposed a tax on any tax- able substance sold or used by the importer thereof. "(b) Amount of Tax. — "(1) In general. — Except as provided in paragraph (2), the amount of the tax imposed by subsection (a) with respect to any taxable substance shall be the amount of the tax which would have been imposed by section 4661 on the taxable chemicals used £is materials in the manufacture or production of such substance if such taxable chemicals had been sold in the United States for use in the manufacture or production of such taxable substance. "(2) Rate where importer does not furnish information TO secretary.— If the importer does not furnish to the Secre- tary (at such time and in such manner as the Secretary shall prescribe) sufficient information to determine under paragraph (1) the amount of the tax imposed by subsection (a) on any tax- able substance, the amount of the tax imposed on such taxable substance shall be 5 percent of the appraised value of such sub- stance as of the time such substance was entered into the United States for consumption, use, or warehousing. "(3) Authority to prescribe rate in lieu of paragraph (2) RATE. — The Secretary may prescribe for each taxable substance a tax which, if prescribed, shall apply in lieu of the tax speci- fied in paragraph (2) with respect to such substance. The tax prescribed by the Secretary shall be equal to the amount of tax which would be imposed by subsection (a) with respect to the taxable substance if such substance were produced using the predominant method of production of such substance. "(c) Exemptions for Substances Taxed Under Sections 4611 AND 4661.— No tax shall be imposed by this section on the sale or use of any substance if tax is imposed on such sale or use under section 4611 or 4661. '*(d) Tax-Free Sales, Etc. for Substances Used as Certain Fuels or in the Production of Fertilizer or Animal Feed.— Rules similar to the following rules shall apply for purposes of ap- plying this section with respect to taxable substances used or sold for use as described in such rules: *'(1) Paragraphs (2), (5), and (9) of section 4662(b) (relating to tax-free sales of chemicals used as fuel or in the production of fertilizer or animal feed). 390 212 "(2) Paragraphs (2), (3), and (4) of section 4662(d) (relating to refund or credit of tax on certain chemicals used as fuel or in the production of fertilizer or animal feed). '*(e) Termination.— No tax shall be imposed under this section during any period during which no tax is imposed under section 4611(a). "SEC. 4672. DEFINITIONS AND SPECIAL RULES. "(a) Taxable Substance. — For purposes of this subchapter — "(1) In general.— The term 'taxable substance' means any substance which, at the time of sale or use by the importer, is listed as a taxable substance by the Secretary for purposes of this subchapter. "(2) Determination of substances on ust.— A substance shall be listed under paragraph (1) if— "(A) the substance is contained in the list under para- graph (3), or *'(B) the Secretary determines, in consultation with the Administrator of the Environmental Protection Agency and the Commissioner of Customs, that taxable chemicals constitute more than 50 percent of the weight of the mate- rials used to produce such substance (determined on the basis of the predominant method of production). "(3) Initial ust of taxable substances. — Methylene chloride Polypropylene Propylene glvcol Formaldehyde Acetone Cumene Styrene Ammonium nitrate Nickel oxide Isopropyl alcohol Ethylene glycol Vinyl chloride Polyethylene resins, total Polybutadiene Styrene-butadiene, latex Styrene-butadiene, snpf Synthetic rubber, not containing fillers Urea Ferronickel Ferrochromium nov 3 pet Ferrochrome ov 3 pet. carbon Unwrought nickel Nickel waste and scrap Wrought nickel rods and wire Nickel powders Phenolic resins Polyvinylchloride resins Polystyrene resins and copolymers Ethyl alcohol for nonbeverage use Ethylbenzene Acrylonitrile Methanol Propylene oxide Polypropylene resins Ethylene oxide Ethylene dichloride Cyclohexane Isophthalic acid Maleic anhydride Phthalic anhydride Ethyl methyl ketone Chloroform Carbon tetrachloride Chromic acid Hydrogen peroxide Polystyrene homopolymer resins Melamine Acrylic and methacrylic acid resins Vinyl resins Vinyl resins, NSPF. "(4) Modifications to list. — "(A) In general.— The Secretary may add substances to or remove substances from the list under paragraph (3) (in- cluding items listed by reason of paragraph (2)) as neces- sary to carry out the purposes of this subchapter. "(B) Authority to add substances to ust based on value.— The Secretary may, to the extent necessary to carry out the purposes of this subchapter, add any sub- stance to the list under paragraph (3) if such substance 391 213 would be described in paragraph (2XB) if Value' were sub- stituted for 'weight' therein. "(b) Other Definitions. — For purposes of this subchapter — "(1) Importer. — The term 'importer* means the person enter- ing the taxable substance for consumption, use, or warehous- ing. "(2) Taxable chemicals; united states. — The terms 'taxable chemical' and 'United States' have the respective meanings given such terms by section 4662(a). "(c) Disposition of Revenues From Puerto Rico and the Virgin Islands. — The provisions of subsections (a)(3) and (b)(3) of section 7652 shall not apply to any tax imposed by section 4671." (b) Clerical Amendment. — The table of subchapters for chapter 38 of such Code is amended by adding after the item relating to subchapter B the following new item: "Subchapter C. Tax on certain imported substances." (c) Effective Date. — The amendments made by this section shall take effect on January 1, 1989. (d) Study.— (1) In general. — The Secretary of the Treasury or his dele- gate shall conduct a study of issues relating to the implementa- tion of — (A) the tax imposed by the section 4671 of the Internal Revenue Code of 1986 (as added by this section), and (B) the credit for exports of taxable substances under section 4661(e)(2)(A)(ii)(II) of such Code. In conducting such study, the Secretary of the Treasury or his delegate shall consult with the Environmental Protection Agency and the International Trade Commission. (2) Report.— The report of the study under paragraph (1) shall be submitted not later than January 1, 1988, to the Com- mittee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate. SEC. 516. ENVIRONMENTAL TAX. (a) In General.— Subchapter A of chapter 1 of the Internal Reve- nue Code of 1986 (relating to income taxes) is amended by adding at the end thereof the following new part: "PART VII— ENVIRONMENTAL TAX "Sec. 59A. Environmental tax. "SEC. 59A. ENVIRONMENTAL TAX. "(a) Imposition of Tax. — In the case of a corporation, there is hereby imposed (in addition to any other tax imposed by this sub- title) a tax equal to 0.12 percent of the excess of— "(1) the modified alternative minimum taxable income of such corporation for the taxable year, over "(2) $2,000,000. "(b) Modified Alternative Minimum Taxable Income.— For purposes of this section, the term 'modified alternative minimum taxable income' means alternative minimum taxable income (as de- fined in section 55(b)(2)) but determined without regard to — 392 214 **(1) the alternative tax net operating loss deduction (as de- fined in section 56(d)), and "(2) the deduction allowed under section 164(aX5). "(c) Special Rules.— "(1) Short taxable years.— The application of this section to taxable years of less than 12 months shall be in accordance with regulations prescribed by the Secretary. "(2) Section 15 not to apply.— Section 15 shall not apply to the tax imposed by this section. "(d) Appucation of Tax.— "(1) In general.— The tax imposed by this section shall apply to taxable years beginning after December 31, 1986, and before January 1, 1992. "(2) Earuer termination.— The tax imposed by this section shall not apply to taxable years— "(A) beginning during a calendar year during which no tax is imposed under section 4611(a) by reason of para- graph (2) of section 4611(e), and "(B) beginning after the calendar year which includes the termination date under paragraph (3) of section 4611(e)." (b) Technical Amendments.— (1) No CREDITS allowed AGAINST TAX.— (A) Paragraph (2) of section 26(b) of such Code, as amended by the Tax Reform Act of 1986, is amended by redesignating subparagraphs (B) through (J) as subpara- graphs (C) through (K), respectively, and by inserting after subparagraph (A) the following new subparagraph: "(B) section 59 A (relating to environmental tax),". (B) Paragraph (3) of section 936(a) of such Code, as so amended, is amended by redesignating subparagraphs (A), (B), and (C) as subparagraphs (B), (C), and (D), respectively, and by inserting before subparagraph (B) (as so redesignat- ed) the following new subparagraph: "(A) section 59 A (relating to environmental tax),". (2) Tax to be deductible for income tax purposes. — (A) Subsection (a) of section 164 of such Code (relating to deduction for taxes), as so amended, is amended by insert- ing after paragraph (4) the following new paragraph: "(5) The environmental tax imposed by section 59A." (B) Subsection (a) of section 275 of such Code is amended by adding at the end thereof the following new sentence: "Paragraph (1) shall not apply to the tax imposed by sec- tion 59A." (3) Limitation in case of controlled corporations.— Sub- section (a) of section 1561 of such Code (relating to limitations on certain multiple tax benefits in the case of certain con- trolled corporations), as amended by the Tax Reform Act of 1986, is amended — (A) by striking out "and" at the end of paragraph (2), by striking out the period at the end of paragraph (3) and in- serting in lieu thereof ", and", and by inserting after para- graph (3) the following new paragraph: 393 215 "(4) one $2,000,000 amount for purposes of computing the tax imposed by section 59A.", and (B) by striking out "(and the amount specified in para- graph (3))" and inserting in lieu thereof ", the amount specified in paragraph (3), and the amount specified in paragraph (4)". (4) Amendments to estimated tax provisions.— (A) Tax uability must be estimated.— (i) Paragraph (1) of section 6154(c) of such Code, as so amended, is amended by striking out "and" at the end of subparagraph (A), by striking out "over" at the end of subparagraph (B) and inserting in lieu thereof "and", and by adding at the end thereof the following new subparagraph: "(C) the environmental tax imposed by section 59A, over (ii) Subsection (a) of section 6154 of such Code is amended by striking out "section 11" and inserting "section 11, 59A,". (C) Conforming amendment to overpayment of esti- mated TAX.— Subparagraph (A) of section 6425(c)(1) of such Code, as amended by the Tax Reform Act of 1986, is amended by striking out "plus" at the end of clause (i), by striking out "over" at the end of clause (ii) and inserting in lieu thereof "plus", and by adding at the end thereof the following new clause: ^^ "(iii) the tax imposed by section 59 A, over . (D) Conforming amendment to penalty for failure to PAY ESTIMATED TAX.— Paragraph (1) of section 6655(f) of such Code (defining tax), as so amended, is amended by striking out "plus" at the end of subparagraph (A), by striking out "over" at the end of subparagraph (B) and in- serting in lieu thereof "plus", and by adding at the end thereof the following new subparagraph: "(C) the tax imposed by section 59A, over". (5) Clerical amendment.— The table of parts for subchapter A of chapter 1 of such Code is amended by adding at the end thereof the following new item: "Part VII. Environmental tax." (c) Effective Date.— The amendments made by this section shall apply to taxable years beginning after December 31, 1986. SEC. 517. HAZARDOUS SUBSTANCE SUPERFUND. (a) In General.— Subchapter A of chapter 98 of the Internal Rev- enue Code of 1986 (relating to establishment of trust funds) is amended by adding after section 9506 the following new section: "SEC. 9507. hazardous SUBSTANCE SUPERFUND. "(a) Creation of Trust Fund.— There is established in the Treasury of the United States a trust fund to be known as the 'Hazardous Substance Superfund' (hereinafter in this section re- ferred to as the 'Superfund'), consisting of such amounts as ma> be — 394 216 "(1) appropriated to the Superfund as provided in this sec- tion, **(2) appropriated to the Superfund pursuant to section 517(b) of the Superfund Revenue Act of 1986, or "(3) credited to the Superfund as provided in section 9602(b). "(b) Transfers to Superfund. — There are hereby appropriated to the Superfund amounts equivalent to — ''(1) the taxes received in the Treasury under section 59 A, 4611, 4661, or 4671 (relating to environmental taxes), "(2) amounts recovered on behalf of the Superfund under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (hereinafter in this section referred to as 'CERCLA'), "(3) all moneys recovered or collected under section 311(b)(6)(B) of the Clean Water Act, "(4) penalties assessed under title I of CERCLA, and **(5) punitive damages under section 107(c)(3) of CERCLA. "(c) Expenditures From Superfund.— "(1) In general. — Amounts in the Superfund shall be avail- able, as provided in appropriation Acts, only for purposes of making expenditures — "(A) to carry out the purposes of^ "(i) paragraphs (1), (2), (5), and (6) of section 111(a) of CERCLA as in effect on the date of the enactment of the Superfund Amendments and Reauthorization Act of 1986, "(ii) section 111(c) of CERCLA (as so in effect), other than paragraphs (1) and (2) thereof, and "(iii) section lll(m) of CERCLA (as so in effect), or "(B) hereafter authorized by a law which does not au- thorize the expenditure out of the Superfund for a general purpose not covered by subparagraph (A) (as so in effect). "(2) Exception for certain transfers, etc., of hazardous SUBSTANCES. — No amount in the Superfund or derived from the Superfund shall be available or used for the transfer or dispos- al of hazardous waste carried out pursuant to a cooperative agreement between the Administrator of the Environmental Protection Agency and a State if the following conditions apply— "(A) the transfer or disposal, if made on December 13, 1985, would not comply with a State or local requirement, "(B) the transfer is to a facility for which a final permit under section 3005(a) of the Solid Waste Disposal Act was issued after January 1, 1983, and before November 1, 1984, and "(C) the transfer is from a facility identified as the McColl Site in FuUerton, California. "(d) Authority To Borrow.— "(1) In general.— There are authorized to be appropriated to the Superfund, as repayable advances, such sums as may be necessary to carry out the purposes of the Superfund. "(2) Limitation on aggregate advances.— The maximum aggregate amount of repayable advances to the Superfund which is outstanding at any one time shall not exceed an 395 217 I amount equal to the amount which the Secretary estimates will be equal to the sum of the amounts appropriated to the Superfund under subsection (b)(1) during the following 24 months. "(3) Repayment of advances.— **(A) In general.— Advances made to the Superfund shall be repaid, and interest on such advances shall be paid, to the general fund of the Treasury when the Secre- tary determines that moneys are available for such pur- poses in the Superfund. "(B) Final repayment. — No advance shall be made to the Superfund after December 31, 1991, and all advances to such Fund shall be repaid on or before such date. "(C) Rate of interest. — Interest on advances made to the Superfund shall be at a rate determined by the Secre- tary of the Treasury (as of the close of the calendar month preceding the month in which the advance is made) to be equal to the current average market yield on outstanding marketable obligations of the United States with remain- ing periods to maturity comparable to the anticipated period during which the advance will be outstanding and shall be compounded annually. "(e) Liability of United States Limited to Amount in Trust Fund.— "(1) General rule.— Any claim filed against the Superfund may be paid only out of the Superfund. "(2) Coordination with other provisions. — Nothing in CERCLA or the Superfund Amendments and Reauthorization Act of 1986 (or in any amendment made by either of such Acts) shall authorize the payment by the United States Government of any amount with respect to any such claim out of any source other than the Superfund. "(3) Order in which unpaid claims are to be paid.— If at any time the Superfund has insufficient funds to pay all of the claims payable out of the Superfund at such time, such claims shall, to the extent permitted under paragraph (1), be paid in full in the order in which they were finally determined." (b) Authorization of Appropriations. — There is authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, to the Hazardous Substance Superfund for fiscal year— (1) 1987, $250,000,000, (2) 1988, $250,000,000, (3) 1989, $250,000,000, (4) 1990, $250,000,000, and (5) 1991, $250,000,000, plus for each fiscal year an amount equal to so much of the aggre- gate amount authorized to be appropriated under this subsection (and paragraph (2) of section 221(b) of the Hazardous Substance Re- sponse Act of 1980, as in effect before its repeal) as has not been appropriated before the beginning of the fiscal year involved. (c) Conforming Amendments. — (1) Subtitle B of the Hazardous Substance Response Revenue Act of 1980 (relating to establishment of Hazardous Substance 396 218 Response Trust Fund), as amended by section 204 of this Act, is hereby repealed. (2) Paragraph (11) of section 101 of the Comprehensive Envi- ronmental Response, Compensation, and Liability Act of 1980 is amended to read as follows: "(11) The term 'Fund' or Trust Fund' means the Hazardous Substance Superfund established by section 9507 of the Inter- nal Revenue Code of 1986." (d) Clerical Amendment. — The table of sections for subchapter A of chapter 98 of such Code is amended by adding after the item relating to section 9506 the following new item: "Sec. 9507. Hazardous Substance Superfund." (e) Effective Date. — (1) In general. — The amendments made by this section shall take effect on January 1, 1987. (2) Superfund treated as continuation of old trust FUND. — The Hazardous Substance Superfund established by the amendments made by this section shall be treated for all pur- poses of law as a continuation of the Hazardous Substance Re- sponse Trust Fund established by section 221 of the Hazardous Substance Response Revenue Act of 1980. Any reference in any law to the Hazardous Substance Response Trust Fund estab- lished by such section 221 shall be deemed to include (wherev- er appropriate) a reference to the Hazardous Substance Super- fund established by the amendments made by this section. PART II— LEAKING UNDERGROUND STORAGE TANK TRUST FUND AND ITS REVENUE SOURCES SEC. 521. ADDITIONAL TAXES ON GASOLINE, DIESEL FUEL, SPECIAL MOTOR FUELS, FUELS USED IN AVIATION, AND FUELS USED IN COMMERCIAL TRANSPORTATION ON INLAND WATER- WAYS. (a) General Rule. — (1) Gasoline.— (A) GaSOUNE tax before amendment by tax REFORM ACT of 1986. — (i) In general.— Section 4081 of the Internal Reve- nue Code of 1986 (relating to imposition of tax on gaso- line), as in effect on the day before the date of the en- actment of the Tax Reform Act of 1986, is amended by striking out subsections (a) and (b) and inserting in lieu thereof the following: "(a) In General.— There is hereby imposed on gasoline sold by the producer or importer thereof, or by any producer of gasoline, a tax at the rate specified in subsection (b). ''(b) Rate of Tax.— ''(1) In general,— The rate of the tax imposed by this section is the sum of— "(A) the Highway Trust Fund financing rate, and "(B) the Leaking Underground Storage Tank Trust Fund financing rate. "(2) Rates.— For purposes of paragraph (1)— 397 219 ) "(A) the Highway Trust Fund financing rate is 9 cents a gallon, and "(B) the Leaking Underground Storage Tank Trust Fund financing rate is 0.1 cents a gallon." (ii) Termination. — Section 4081 of such Code, as so in efiect, is amended by adding at the end thereof the following new subsection: "(d) Termination.— "(1) Highway trust fund financing rate. — On and after October 1, 1988, the Highway Trust Fund financing rate under subsection (b)(2)(A) shall not apply. "(2) Leaking underground storage tank trust fund fi- nancing RATE. — "(A) In general. — The Leaking Underground Storage Tank Trust Fund financing rate under subsection (b)(2)(B) shall not apply after the earlier of— "(i) December 31, 1991, or "(ii) the last day of the termination month. "(B) Termination month. — For purposes of subpara- graph (A), the termination month is the 1st month as of the close of which the Secretary estimates that the net revenues from the taxes imposed by this section (to the extent attributable to the Leaking Underground Storage Tank Trust Fund financing rate under subsection (bX2)(B)), section 4041(d), and section 4042 (to the extent attributable to the Leaking Underground Storage Tank Trust Fund fi- nancing rate under section 4042(b)) are at least $500,000,000. "(C) Net revenues. — For purposes of subparagraph (B), the term 'net revenues' means the excess of gross revenues over amounts payable by reason of section 9508(c)(2) (relat- ing to transfer from Leaking Underground Storage Tank Trust Fund for certain repayments and credits)." (iii) Technical amendments. — Subsection (c) of section 4081 of such Code, as so in effect, is amended — (I) by striking out "subsection (a)" in paragraph (1) and inserting in lieu thereof "subsection (b)", and (II) by striking out "a rate" in paragraph (2) and inserting in lieu thereof "a Highway Trust Fund financing rate". (B) Gasoline tax as amended by tax reform act of 1986.— (i) In general.— Subsections (a) and (b) of section 4081 of the Internal Revenue Code of 1986 (relating to imposition of tax on gasoline), as amended by the Tax Reform Act of 1986, are each amended by striking out "of 9 cents a gallon" and inserting in lieu thereof "at the rate specified in subsection (d)' . (ii) Increase in tax. — Section 4081 of such Code, as amended by the Tax Reform Act of 1986, is amended by striking out subsection (d) and inserting in lieu thereof the following new subsections: "(d) Rate of Tax.— 398 220 '*(!) In general. — The rate of the tax imposed by this section is the sum of — "(A) the Highway Trust Fund financing rate, and "(B) the Leaking Underground Storage Tank Trust Fund financing rate. "(2) Rates. — For purposes of paragraph (1) — *'(A) the Highway Trust Fund financing rate is 9 cents a gallon, and '*(B) the Leaking Underground Storage Tank Trust Fund financing rate is 0.1 cents a gallon. "(e) Termination.— "(1) Highway trust fund financing rate. — On and after October 1, 1988, the Highway Trust Fund financing rate under subsection (d)(2)(A) shall not apply. "(2) Leaking underground storage tank trust fund fi- nancing RATE. — "(A) In general. — The Leaking Underground Storage Tank Trust Fund financing rate under subsection (d)(2)(B) shall not apply after the earlier of — "(i) December 31, 1991, or "(ii) the last day of the termination month. "(B) Termination month. — For purposes of subpara- graph (A), the termination month is the 1st month as of the close of which the Secretary estimates that the net revenues from the taxes imposed by this section (to the extent attributable to the Leaking Underground Storage Tank Trust Fund financing rate under subsection (d)(2)(B)), section 4041(d), and section 4042 (to the extent attributable to the Leaking Underground Storage Tank Trust Fund fi- nancing rate under section 4042(b)) are at least $500,000,000. "(C) Net revenues. — For purposes of subparagraph (B), the term "net revenues" means the excess of gross reve- nues over amounts payable by reason of section 9508(c)(2) (relating to transfer from Leaking Underground Storage Tank Trust Fund for certain repayments and credits)." (iii) Technical amendments. — Subsection (c) of sec- tion 4081 of such Code, as amended by the Tax Reform Act of 1986, is amended — (I) by striking out "subsection (a)" in paragraph (1) and inserting in lieu thereof "subsection (d)", and (II) by striking out "a rate" in paragraph (2) and inserting in lieu thereof "a Highway Trust Fund financing rate". (2) Diesel and special motor fuels; fuels used in avia- tion.— Section 4041 of such Code (relating to tax on special fuels) is amended by redesignating subsection (d) as subsection (e) and by inserting after subsection (c) the following new sub- section: "(d) Additional Taxes To Fund Leaking Underground Stor- age Tank Trust Fund.— "(1) Liquids other than gasoline, etc., used in motor vehi- cles, MOTORBOATS, OR TRAINS. — In addition to the taxes im- 399 221 I posed by subsection (a), there is hereby imposed a tax of 0.1 cents a gallon on benzol, benzene, naphtha, casing head and natural gasoline, or any other liquid (other than kerosene, gas oil, liquefied petroleum gas, or fuel oil, or any product taxable under section 4081) — "(A) sold by any person to an owner, lessee, or other op- erator of a motor vehicle, motorboat, or train for use as a fuel in such motor vehicle, motorboat, or train, or ''(B) used by any person as a fuel in a motor vehicle, mo- torboat, or train unless there was a taxable sale of such liquid under subparagraph (A). "(2) Liquids used in aviation.— In addition to the taxes im- posed by subsection (c) and section 4081, there is hereby im- posed a tax of 0.1 cents a gallon on any liquid — **(A) sold by any person to an owner, lessee, or other op- erator of an aircraft for use as a fuel in such aircraft, or ''(B) used by any person as a fuel in an aircraft unless there was a taxable sale of such liquid under subpara- graph (A). The tax imposed by this paragraph shall not apply to any prod- uct taxable under section 4081 which is used as a fuel in an aircraft other than in noncommercial aviation. "(3) Termination. — The taxes imposed by this subsection shall not apply during any period during which the Leaking Underground Storage Tank Trust Fund financing rate under section 4081 does not apply." (3) Fuel used in commercial transportation on inland WATERWAYS.— Subsection (b) of section 4042 of such Code (relat- ing to amount of tax on fuel used in commercial transportation on inland waterways) is amended to read as follows: '(b) Amount of Tax. — "(1) In general. — The rate of the tax imposed by subsection (a) is the sum of — "(A) the Inland Waterways Trust Fund financing rate, and "(B) the Leaking Underground Storage Tank Trust Fund financing rate. "(2) Rates. — For purposes of paragraph (1) — "(A) the Inland Waterways Trust Fund financing rate is 10 cents a gallon, and "(B) the Leaking Underground Storage Tank Trust Fund financing rate is 0.1 cents a gallon. "(3) Exception for fuel taxed under section 4041(d).— The Leaking Underground Storage Tank Trust Fund financing rate under paragraph (2)(B) shall not apply to the use of any fuel if tax under section 4041(d) was imposed on the sale of such fuel or is imposed on such use. "(4) Termination of leaking underground storage tank TRUST FUND FINANCING RATE. — The Leaking Underground Stor- age Tank Trust Fund financing rate under paragraph (2)(B) shall not apply during any period during which the Leaking Underground Storage Tank Trust Fund financing rate under section 4081 does not apply." 400 222 (b) Additional Taxes Not Transferred to Highway Trust Fund, Airport and Airway Trust Fund, and Inland Waterways Trust Fund.— (1) Highway trust fund. — (A) In general. — Subsection (b) of section 9503 of such Code (relating to transfer to Highway Trust Fund of amounts equivalent to certain taxes) is amended by adding at the end thereof the following new paragraph: ''(4) Certain additional taxes not transferred to high- way TRUST FUND. — For purposes of paragraphs (1) and (2), there shall not be taken into account the taxes imposed by sec- tion 4041(d) and so much of the taxes imposed by section 4081 as is attributable to the Leaking Underground Storage Tank Trust Fund financing rate." (B) Conforming amendment.— Subparagraph (D) of sec- tion 9503(c)(4) of such Code (defining motorboat fuel taxes) is amended by striking out "section 4081" and inserting in lieu thereof "section 4081 (to the extent attributable to the Highway Trust Fund financing rate)". (2) Airport and airway trust fund.— Subsection (b) of sec- tion 9502 of such Code (relating to transfer to Airport and Airway Trust Fund of amounts equivalent to certain taxes) is amended — (A) by striking out "subsections (c) and (d) of section 4041" in paragraph (1) and inserting in lieu thereof "sub- sections (c) and (e) of section 4041", and (B) by striking out "section 4081" in paragraph (2) and inserting in lieu thereof "section 4081 (to the extent attrib- utable to the Highway Trust Fund financing rate)". (3) Inland waterways trust fund.— Paragraph (1) of sec- tion 9506(b) of such Code is amended by adding at the end thereof the following new sentence: "The preceding sentence shall apply only to so much of such taxes as are attributable to the Inland Waterways Trust Fund financing rate under section 4042(b)." (c) Repayments for Gasoune Used on Farms, Etc.— (1) Gasoline used on farms.— Subsection (h) of section 6420 of such Code (relating to termination) is amended by striking out "This section" and inserting in lieu thereof "Except with respect to taxes imposed by section 4081 at the Leaking Under- ground Storage Tank Trust Fund financing rate, this section". (2) Gasoline used for certain nonhighway purposes or by LOCAL transit SYSTEMS. — (A) Termination not to apply to additional o.i cent TAX.— Subsection (h) of section 6421 of such Code (relating to effective date), as in effect on the day before the date of the enactment of the Tax Reform Act of 1986, is amended by striking out "This section" and inserting in lieu thereof "Except with respect to taxes imposed by section 4081 at the Leaking Underground Storage Tank Trust Fund fi- nancing rate, this section". (B) Repayment of additional tax for off-highway business use to apply only to certain vessels.— Subsec- tion (e) of section 6421 of such Code, as so in effect, is 401 I 223 ■.» amended by adding at the end thereof the following new paragraph: "(4) Section not to apply to certain off-highway business uses with respect to the tax imposed by section 4081 at the leaking underground storage tank trust fund financing RATE. — This section shall not apply with respect to the tax im- posed by section 4081 at the Leaking Underground Storage Tank Trust Fund financing rate on gasoline used in any off- highway business use other than use in a vessel employed in the fisheries or in the whaling business." (3) Fuels used for nontaxable purposes. — (A) Subsection (m) of section 6427 of such Code (relating to termination), as in effect on the day before the date of the enactment of the Tax Reform Act of 1986, is amended by striking out "Subsections" and inserting in lieu thereof ''Except with respect to taxes imposed by section 4041(d) and section 4081 at the Leaking Underground Storage Tank Trust Fund financing rate, subsections". (B)(i) Section 6427 of such Code, as so in effect, is amend- ed by redesignating subsection (n) as subsection (o) and by inserting after subsection (m) the following new subsection: "(n) Payments For Taxes Imposed by Section 4041(d). — For pur- poses of subsections (a), (b), and (c), the taxes imposed by section 4041(d) shall be treated as imposed by section 4041(a)." (ii) Subparagraph (A) of section 1703(e)(1) of the Tax Reform Act of 1986 is amended — (I) by striking out ''and (o)" and inserting in lieu thereof "(o), and (p)", and (II) by striking out "and (n)" and inserting in lieu thereof "(n), and (o)". (C) Paragraph (1) of section 6427(f) of such Code (relating to gasoline used to produce certain alcohol fuels) is amend- ed by striking out "at the rate" and inserting in lieu there- of "at the Highway Trust Fund financing rate", (d) Continuation of Certain Exemptions From Additional Taxes, Etc.— (1) Subsection (b) of section 4041 of such Code (relating to ex- emption for off-highway business use; reduction in tax for qualified methanol and ethanol fuel) is amended by adding at the end thereof the following new paragraph: "(3) Coordination with taxes imposed by subsection (d). — "(A) Off-highway business use.— "(i) In general. — Except as provided in clause (ii), rules similar to the rules of paragraph (1) shall apply with respect to the taxes imposed by subsection (d). "(ii) Limitation on exemption for off-highway business use. — For purposes of subparagraph (A), paragraph (1) shall apply only with respect to off-high- way business use in a vessel employed in the fisheries or in the whaling business. "(B) QUAUFIED METHANOL AND ETHANOL FUEL. — In the case of qualified methanol or ethanol fuel, subsection (d) shall be applied by substituting '0.05 cents' for '0.1 cents' in paragraph (1) thereof." 402 224 (2) Paragraph (3) of section 4041(f) of such Code (relating to exemption for farm use) is amended by striking out "On and after" and inserting in lieu thereof "Except with respect to the taxes imposed by subsection (d), on and after". (3) The last sentence of section 4041(g) of such Code (relating to other exemptions) is amended by striking out "Paragraphs" and inserting in lieu thereof "Except with respect to the taxes imposed by subsection (d), paragraphs". (4)(A) The last sentence of section 4221(a) of such Code (relat- ing to certain tax-free sales) is amended by striking out "40S1" and inserting in lieu thereof "4081 (at the Highway Trust Fund financing rate)". (B) Subparagraph (C) of section 1703(cX2) of the Tax Reform Act of 1986 is amended to read as follows: "(C) Subsection (a) of section 4221 (relating to certain tax-free sales) is amended — "(i) by inserting 'or section 4081 (at the Highway Trust Fund financing rate)' before 'section 4121' in the 1st sentence, and "(ii) by striking out '4071, or 4081 (at the Highway Trust Fund financing rate)' in the last sentence and inserting in lieu thereof 'or 4071'." (5) Paragraph (2) of section 6416(b) of such Code is amended by inserting "or under paragraph (1)(A) or (2)(A) of section 4041(d)" after "section 4041(a)'^. (e) Effective Date. — The amendments made by this section shall take effect on January 1, 1987. SEC. 522. LEAKING UNDERGROUND STORAGE TANK TRUST FUND. (a) In General.— Subchapter A of chapter 98 of the Internal Rev- enue Code of 1986 (relating to establishment of trust funds) is amended by adding after section 9507 the following new section: "SEC. 9508. LEAKING UNDERGROUND STORAGE TANK TRUST FUND. "(a) Creation of Trust Fund. — There is established in the Treasury of the United States a trust fund to be known as the 'Leaking Underground Storage Tank Trust Fund', consisting of such amounts as may be appropriated or credited to such Trust Fund as provided in this section or section 9602(b). "(b) Transfers to Trust Fund.— There are hereby appropriated to the Leaking Underground Storage Tank Trust Fund amounts equivalent to — "(1) taxes received in the Treasury under section 4041(d) (re- lating to additional taxes on motor fuels), "(2) taxes received in the Treasury under section 4081 (relat- ing to tax on gasoline) to the extent attributable to the Leak- ing Underground Storage Tank Trust Fund financing rate under such section, "(3) taxes received in the Treasury under section 4042 (relat- ing to tax on fuel used in commercial transportation on inland waterways) to the extent attributable to the Leaking Under- ground Storage Tank Trust Fund financing rate under such section, and "(4) amounts received in the Treasury and collected under section 9003(h)(6) of the Solid Waste Disposal Act. 403 225 "(c) Expenditures. — "U) In general.— Except as provided in paragraph (2), amounts in the Leaking Underground Storage Tank Trust Fund shall be available, as provided in appropriation Acts, only for purposes of making expenditures to carry out section 9003(h) of the Solid Waste Disposal Act as in effect on the date of the enactment of the Superfund Amendments and Reauthor- ization Act of 1986. *X2) Transfers from trust fund for certain repayments AND CREDITS. — **(A) In general. — The Secretary shall pay from time to time from the Leaking Underground Storage Tank Trust Fund into the general fund of the Treasury amounts equiv- alent to — "(i) amounts paid under — "(I) section 6420 (relating to amounts paid in re- spect of gasoline used on farms), "(II) section 6421 (relating to amounts paid in respect of gasoline used for certain npnhighway purposes or by local transit systems), and "(III) section 6427 (relating to fuels not used for taxable purposes), and "(ii) credits allowed under section 34, with respect to the taxes imposed by sections 4041(d) and 4081 (to the extent attributable to the Leaking Underground Stor- age Tank Trust Fund financing rate under section 4081). "(B) Transfers based on estimates.— Transfers under subparagraph (A) shall be made on the basis of estimates by the Secretary, and proper adjustments shall be made in amounts subsequently transferred to the extent prior esti- mates were in excess of or less than the amounts required to be transferred. "(d) Liability of the United States Limited to Amount in Trust Fund.— "(1) General rule. — Any claim filed against the Leaking Underground Storage Tank Trust Fund may be paid only out of such Trust Fund. "(2) Coordination with other provisions.— Nothing in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 or the Superfund Amendments and Reau- thorization Act of 1986 (or in any amendment made by either of such Acts) shall authorize the payment by the United States Government of any amount with respect to any such claim out of any source other than the Leaking Underground Storage Tank Trust Fund. "(3) Order in which unpaid claims are to be paid. — If at any time the Leaking Underground Storage Tank Trust Fund has insufficient funds to pay all of the claims out of such Trust Fund at such time, such claims shall, to the extent permitted under paragraph (1), be paid in full in the order in which they were finally determined. 404 226 (b) Clerical Amendment.— The table of sections fOr subchapter A of chapter 98 of such Code is amended by adding after the item relating to section 9507 the following new item: "Sec. 9508. Leaking Underground Storage Tank Trust Fund." (c) Effective Date.— The amendments made by this section shall take effect on January 1, 1987." 75-032 (424) UNIVERSITY OF ILLINOIS-URBANA DOC. Y4.P96+10:S.PRT. 101-120+ C001 V001 A LEGISLATIVE HISTORY OF THE SUPERFUND A 3 0112 026385119