Superfund Reauthorization Bills : A Comparison of S . 1285, Subcommittee-Approved H .R. 2500, and H .R. 228

Congressional research reportNov 17, 1995

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95-1129 ENR

Superfund Reauthorization Bills :

A Comparison of S . 1285,

Subcommittee-Approved H .R. 2500,

and H .R. 228

Mark Reisch, Coordinator

Martin R . Lee, Specialist

James E . McCarthy, Specialist

Linda Schierow, Specialist

Mary Tiemann, Specialist

Environment and Natural Resources Policy Division

November 17, 1995

VAMbah"

CRS

IIIIIIIIIIIIII~ft!IIIIIIIII IIiIIIIIIIIIIII

' Superfund Reauthorization Bills :

A Comparison of S . 1285,

Subcommittee-Approved H .R. 2500, and H.R. 228

SUMMARY

This report compares three comprehensive bills to amend and extend the

Superfund law . Two are chairmen's bills : S. 1834, introduced by Senator Bob

Smith, and H .R. 2500, introduced by Representative Michael G . Oxley, and

approved November 9, 1995, by the Subcommittee on Commerce, Trade, and

Hazardous Materials of the House Commerce Committee . The third bill is H .R.

228, introduced by Representative John D . Dingell .

The report divides the provisions of the bills into the following topics :

community participation, environmental justice, health, State role, voluntary

cleanup and brownfields, exemptions from liability for financial institutions and

landholders, selection of remedial actions, liability allocations, Federal facilities,

natural resources damage assessment, appropriations, miscellaneous, and

amendments to the Solid Waste Disposal Act . The Environmental Insurance

Resolution Fund, addressed only by H .R. 228, is discussed at the end .

CONTENTS

Page

Community Participation

Environmental Justice

Health

State Role

Voluntary Cleanup and Brownfields

Exemptions from Liability for Financial Institutions and Landholders . . . . 19

Selection of Remedial Actions

Liability Allocations

Federal Facilities

Natural Resources Damage Assessment

Appropriations

Miscellaneous

Amendments to Solid Waste Disposal Act

Environmental Insurance Resolution Fund

Superfund Reauthorization Bills:

A Comparison of S . 1285,

Subcommittee-Approved H .R. 2500, and H .R. 228

INTRODUCTION

Superfund reauthorization is perhaps the

highest profile environmental legislation to be

considered in the 104th Congress. The chairmen's

bills are S . 1834, introduced September 29, 1995, by

Senator Bob Smith, chairman of the Environment and

Public Works Committee's Subcommittee on

Superfund, Waste Control, and Risk Assessment ; and

H.R . 2500, introduced October 18, 1995, by

Representative Michael G . Oxley, chairman of the

Commerce Committee's Subcommittee on Commerce,

Trade, and Hazardous Materials . The subcommittee

reported H .R. 2500 on November 9, 1995 .

A third comprehensive proposal in the debate

is H.R. 228, based on the bill that was reported in the

last Congress by three committees, but was never

debated on the floor. It was introduced by

Representative John D . Dingell, the former chairman

of the Energy and Commerce Committee, on January

4, 1995 .

This report provides a section-by-section

comparison of those three bills . It is generally

organized according to the Senate bill . To assist the

reader locate provisions of H .R. 2500, a guide to the

sections is presented below . In a few instances the

same provisions appear in two places .

GUIDE TO SECTIONS OF H .R. 2500

Section

Subject

Page(s)

101

Substance profiles

Risk evaluations

30-31

Lead

Cleanup levels

23-24

Remedy selection

25-26

ARARs/Standards for contaminated water

27-28

Methods of remediation

Future land and water use

Generic (or presumptive) remedies

Early evaluation and phased remedial action

State involvement

13, 34

102

103

emedy selection

Technical Assistance Grants

Public participation in decision-making

104

Community Assistance Groups

105

Hazard ranking

106

Health care for NPL communities

Disease registry

107

Determining health effects (ATSDR)

108

Health assessments at NPL sites (ATSDR)

109

Health assessments at NPL sites (ATSDR)

110

ATSDR outreach (education)

CRS-3

GUIDE TO SECTIONS OF H .R. 2500

Section

Subject

Page(s)

111

Delegation of ATSDR health authorities

ATSDR services at hazardous waste sites

112

Emergency removals

113

Hazardous substance easements on property use

114

Judicial review

115

Effective date

Transition rules

201

Reimbursement of cleanup costs for liability due to pre-1987 activities

(Retroactivity)

202

Municipal landfill reimbursement

203

Contiguous properties

Exemptions and limitations of liability

Liability of common carriers

Triple damages

205

Activities contrary to law

206

Release of evidence of liability

Administrative orders

207

Allocation of liability

39-43, 46-48

208

Cost recovery actions

209

Contribution actions

210

Response action contractors

49-50

204

CRS-4

GUIDE TO SECTIONS OF H .R. 2500

Section

Subject

Page(s)

211

Waiver of eligibility requirements for de minimis parties

Release of evidence of liability

Use of annuity contracts/financial instruments

Cost recovery challenges

212

Authority to hire neutral professionals

213

Final covenants not to sue

214

Expedited settlements

Settlements requiring Attorney General's approval

215

Recycling

216

EPA information gathering and access

301

Voluntary cleanup programs

302

Treatment of security interest holders and fiduciaries

19-20

303

Innocent landholders

304

Limitation on Federal enforcement in States implementing remedial

actions

305

Prospective purchasers and windfall liens

401

Natural resource damages

63-64

501

Delegation of authority to States

8-11

501(b)

State cost share

10, 13

502

NPL cap

503

Reimbursements to State and local governments

CRS- 5

GUIDE TO SECTIONS OF H .R. 2500

Section

Subject

Page(s)

601

Federal facilities : transfer of authority to States

54-56

602

Use of innovative technologies at Federal facilities

603

Demonstration to Governor of successful remedy

604

Transfer of uncontaminated Federal property

605

Federal entities and facilities (applicability of CERCLA to)

59-60

606

Federal facility listing deferral

607

Federal facility listing on the NPL

608

Annual studies of priorities at Federal facilities

609

Judicial removals

701

Federal banking and lending agency liability

Definitions

702

Response claims procedures

703

Assistance for small businesses from EPA's Ombudsman

704

Consideration of local government cleanup priorities

705

Atomic Energy Act savings clause

706

Annual report to Congress

707

Disposal of real property

801

Oil Pollution Liability Act (OPLA) amendments

802

OPLA natural resource damages

803

OPLA damage assessment regulations

804

OPLA definitions

CRS-6

GUIDE TO SECTIONS OF H .R. 2500

Section

Subject

Page(s)

901

Solid Waste Disposal Act Amendments

72-76

902

Underground storage tanks

1.001

Uses of the Fund

65-66

1002

Authorizing appropriations from general revenues

1011

Extension of taxes

Provision

UNI

PAR

ION

H.R . 2500 (Subcommittee-Approved)

Community

Organizations

§101 amends CERCLA §117(e) . Community Response Organizations . Provides for establishing Community Response Organizations (CROs) for facilities

on National Priorities List (NPL) or on

State Registries if proposed for NPL .

Members are appointed by Administrator .

Requires EPA to inform and consult with

CROs and to consider their views in developing and implementing the remedial

action plan . Exempts CROs from requirements of the Federal Advisory Committee Act (FACA, 5 USC App . 2) . EPA

provides administrative and technical

services and meeting facilities for CROs .

CROs and EPA inform the community at

large .

§104 adds new CERCLA §117(g) . Provides for establishing Community Assistance Groups (CAGs) which are similar

to CROs . Requires that CAG recommendations for resource use consider cleanup

criteria in §121(b) which ensure remedial

action will protect human health from

realistic and significant risks . Does not

authorize CAGs for facilities on State

Registries or exempt them from FACA .

§102 adds new §117(g) . Provides for establishing Community Working Groups

(CWGs) which are similar to CROs . Emphasizes how to weigh CWG views about

future land use and requires that CWG

recommendations consider cleanup criteria in §121(b) . Does not exempt CWGs

from FACA . Citizen Information and

Access Offices help Administrator select

CWG members .

Technical

Assistance

Grants (TAGs)

§101 adds CERCLA §117(f) . Technical

Assistance Grants .

Similar to current law, authorizes grants

up to $50,000 for a citizen group affected

by a facility on the NPL to obtain technical assistance in interpreting information . Also authorizes grants for facilities

on State Registries . CROs are preferred

recipients. Eliminates fund-matching

requirement . Authorizes early disbursement of grant portion. Requires limits on

grant duration . Limits total funding to

2% of Superfund. Prohibits use of funds

to collect field data .

§103 amends CERCLA §117(e) . Similar

to S . 1285, except provides no authority

for grants to communities near facilities

on State Registries and limits total funding to $20 million annually .

§101 amends §117(e) . Similar to S . 1285,

except CWGs are not preferred recipients

and the limit on total funding is 4% of

Superfund . Also authorizes grants to

nonprofit organizations and citizen

groups to enhance participation in consensus-based rulemaking processes under

CERCLA.

§104 limits eligibility for Technical Assistance Grants (TAGS) to CAGs where

they exist,

CRS-2

Provision

H.R. 2500 (Subcommittee-Approved)

Public

Participation in

Decision

Making

§101 adds §117(g) . Improvement of

Public Participation in the Superfund

Decisionmaking Process .

Provides opportunities for public participation in meetings throughout response

activities, including lengthy removal actions that obviate need for long-term

remedial action . Requires two-way communication of information, active solicitation of public views, and public access to

all nonprivileged information relating to

a facility . Directs EPA to ensure communication about risks conforms to specified standards . Requires written responses to significant concerns .

§103 adds new §117(f) . Similar to

S . 1285, but does not require public participation during lengthy removal actions

that obviate need for long-term remedial

action .

§101 adds new §117(f) . Similar to

S . 1285 .

Citizen

Information

and Access

Offices

No comparable provision .

§102 adds new §117(h) . Establishes a

Citizen Information and Access Office in

each State to inform citizens about listed

sites, the decision-making process under

CERCLA, and their legal rights . Serves

as an information clearinghouse and

repository for facility and health data .

Public

Comment

No comparable provisio

No comparable provision .

§612 reaffirms EPA's obligation to fully

consider and respond to public comments .

CRS-3

0 E TAL J ST C

Provisio

Environmental

ustice

H .R . 2500 (Subcommittee-Approved)

No comparable provision .

§102 adds new §117(i) . Requires EPA

study of priority setting, response actions, and public participation at sites to

determine whether conduct was fair and .

equitable with respect to population,

race, ethnicity, and income characteristics of affected communities and to identify program areas needing improvement ; any needed improvements must be

addressed . Also see §103 below on hazard ranking .

azard

No comparable provision .

§105 amends CERCLA §105 . Requires

placing the highest priority on facilities

where there is actual ongoing human

exposure of public health concern or demonstrated adverse health effects .

§103 amends CERCLA §105, Same as

H .R . 2500 . Also requires grouping of

facilities that expose the same population, and considering exposures resulting

from subsistence and other special resource uses . Requires evaluating 5 facilities in each EPA region in areas of environmental justice concern that are likely

to warrant inclusion on the NPL . Establishes petition process to evaluate

such facilities, Requires review and

incorporation in the National Contingency Plan (NCP) of new procedures to

conduct efficient, cost-effective, and

timely remedial investigation and feasibility studies (RI/FS) .

Wor er

Training

No comparable provisio

No comparable provision .

§113 authorizes an EPA demonstration

program to recruit and train individuals

from affected communities in remediation activities .

CRS-4

STIC

H .R . 2500 (Subcommittee-Approved)

Study of Small

Disadvantaged

Business Goals

No comparable provision .

No comparable pro

'on

§620 requires EPA to study the advisability and feasibility of instituting a

small disadvantaged business goal program for all Federal contracts under

CERCLA, and report within a year .

CRS- 5

HEALTH

Provision

Health

Authorities

Substance

Profiles

H .R. 2500 (Subcommittee-Approved)

No comparable provision .

§111 amends §104(1)(15) . Authorizes

ATSDR to delegate its activities to appropriate public authorities, professional

associations, institutions, colleges or universities (in addition to States which currently conduct such activities) through

grants, cooperative agreements, or contracts .

§110 amends §104(1)(15) . Same as H .R .

2500 . Also requires consideration of educational institutions that primarily serve

minorities or represent the interests of

affected communities.

§101 adds new §127(c) . Requires EPA

and ATSDR to review the health effects

values and toxicological profiles of 25

carcinogens listed in §104(i) that present

the most risk at NPL sites . Within 2

years of enactment, after peer review

and public comment, a final assessment

of the health effects values must be published . Requires presenting and explaining plausible alternative assumptions or

models. If numericall estimates of risk or

health effects values are provided, requires including central estimates using

the most plausible assumptions, given

the weight of the scientific information

available, and a range of estimates and

related uncertainties .

§105 amends 104(1)(3) . Directs ATSDR to

prepare toxicological profiles for substances not on the priority list but which have

been found at non-NPL facilities and are

of critical health concern . Removes requirement for revising and republishing

toxicological profiles at least every 3

years .

§112 amends §111(c)(4) to authorize

ATSDR provision of health services .

CRS- 6

ovision

-lealth Care

fo NPI,

Communities

ete

ning

ealth Effects

P blic Health

sessments

acilities

H .R. 2500 (Subcommittee-Approved)

No comparable provision .

2 8

§106 amends §104(1)(1) . Eliminates NPL

community eligibility for admission to

Public Health Service facilities and services, but makes exposed persons eligible

for referral to accredited medical care

providers.

104 amends §104(1)(1) . Same as H .R .

2500 §106 .

§111 amends §104(i)(15) . Directs ATSDR

to provide diagnostic services, health

data registries, and preventative health

education to communities at NPL sites

and sites being evaluated for inclusion on

the NPL .

§110 amends §104(1)(15) . Same as H .R .

2500 §111,

'o. .

§107 amends §104(1)(5) . Authorizes conduct of health effect studies by ATSDR

directly or by cooperative agreements

and grants with institutions, Requires

additional studies to develop new techniques for predicting toxicity .

§ 06 amends §104(1)(5) . Same as H . R .

2 00,

No comparable provision .

§108 amends §104(1)(6) . Requires

ATSDR to perform a public health assessment for each facility on the NPL

and for sites proposed for the NPL, including Federal facilities . Requires the

President to provide ATSDR with the

necessary data and information for public health assessments prior to initiation

of remedial actions . Requires community

involvement in health assessments .

§107 amends §104(1)(6) . Similar to H .R .

2500 §108 .

No comparable pro

§109 amends §104(i)(7) . Requires conduct of human health studies "of exposure or other health effects" when appropriate .

§108 amends §104(1)(7) . Same as H .R .

500 §109 .

CRS-7

Provision

H .R . 2500 (Subcommittee-Approved)

Education

No comparable provision .

§110 amends §104(1)(14) . Requires additional ATSDR outreach to nurses, medical centers, and the public addressing

health effects related to exposure to hazardous substances .

§109 amends §104(1)(14) . Same as H .R .

2500 .

Disease Registry

No comparable provision .

§106 amends CERCLA § 104(1)(1) . Removes requirement for a national registry of diseases and illnesses . Specifies

that the national registry of persons

exposed to hazardous substances is for

scientific and public health purposes .

§104 amends §104(1)(1) . Same as H .R.

2500 .

Effective Date

No comparable provision .

§115 makes title I requirements effective

on the date of enactment at facilities

where no final record of decision has

been published .

§114 makes title I requirements effective

on the date of enactment, except requirements of CERCLA §117(f)(1) through (4)

and §117(g)(1), as added by §§101 and

102, which become effective 180 days

after enactment .

CRS- 8

STATE ROLE

Provision

H.R.2500 (Subcommittee-Approved)

Delegation of

Authority

§201 adds a new §135 to CERCLA.

§135(c) provides that on application by a

State, the Administrator of EPA shall

delegate 1 or more authorities with respect to 1 or more non-Federal listed

facilities in the State . Applications shall

identify each facility for which delegation

is requested and may request delegation

of one or more of 6 categories of delegable authority identified in §135(b) .

§501 adds a new §131 to CERCLA.

§131(a) provides that the Administrator

may delegate authority to a State to take

action at any or all NPL sites within the

State, including Federal facilities . Delegation may be made with respect to one

or more of 8 categories of authority .

§201 adds a new §127 to CERCLA . Authority is not delegated . Rather,

§127(a) provides that, on application by a

State, the Administrator may enter into a

contract or cooperative agreement with a

State allowing the State to take or require preremedial actions (including removal actions) and response actions, including selection and enforcement of

remedial actions and the use of allocation

procedures . Only non-Federally owned or

operated facilities are covered under this

section (although §207, described below,

provides separate authority for States at

Federal facility sites) . The Administrator

is required to conduct a study (under

§206) of the feasibility of authorizing

States to use their own laws to carry out

the provisions of the Act in lieu of the

Federal program .

Approval/Denial

§135(c) . The Administrator shall approve

or deny an application within 60 days of

submittal if the State is authorized to

administer and enforce the RCRA corrective action program, or within 120 days if

it is not . An application may be denied if

the State does not have adequate legal

authority, financial and personnel resources, organization, or expertise . If the

Administrator fails to approve or disapprove an application within the required

time, an application shall be deemed

approved .

§131(a)(3) . Similar approval and disapproval procedures, except that the deadline for approval or disapproval is within

60 days of submittal for all States .

§127(b)-(c) set forth similar requirements

concerning the authorities a State must

demonstrate in order to qualify for a

contract or cooperative agreement . In

addition, in order for a State to qualify

for a contract or cooperative agreement

at a facility, the State may not be a major

potentially responsible party with respect

to that facility . No deadline for EPA

approval of State applications, except, as

noted below, in the case of authority at

Federal facilities .

CRS- 9

STATE ROLE

H.R.2500 (Subcommittee-Approved)

Performance of

Delegatedd

Authorities

§135(d) . A delegated State shall have

sole authority to perform a delegated

authority with respect to a delegated

facility, except that delegated States may

also enter into agreements with political

subdivisions, interstate bodies, and other

delegated States for the performance of

delegated authority .

§131(c)(3) . The President is prohibited

from taking response actions at any facility for which authority has been delegated to a State . No provision concerning

State agreements with political subdivisions, interstate bodies, and other delegated States,

No comparable provision .

Contract

Provisions

No comparable provisions .

§127(d)-(g) . Establishes specific provisions for State contracts and cooperative

agreements with regard to selection of

remedial actions, enforcement, allocation

of liability, orphan shares, covenants

precluding administrative and judicial

actions, failure to comply with contracts

or cooperative agreements, and required

contract terms .

Costlier

Remedial

Actions

§135(d)(3)(B)(ii) . A delegated State may

select a remedial action with a greater

response cost than that which would

have been chosen by the Administrator if

the State pays for the difference in cost .

The State shall not be entitled to seek

cost recovery from any other person for

the additional cost .

No comparable pro

No comparable provision .

ion,

CRS- 10

Provision

S . 1285

TE RO E

H .R.2500 (Subcommittee-Approved)

Cost Share

No comparable pro ion .

§501(b) . Deletes the requirement that

States provide a 50% cost share in cases

where the State or a political subdivision

operated the site at which a response is

to be undertaken, effectively lowering the

cost share requirement in these cases to

10%. Also provides that, upon receipt of

a petition from a State, the Director of

OMB shall establish a lower State cost

share to apply in lieu of the 10% requirement, using a methodology specified in

the subsection. OMB may take such

action not more frequently than every 3

years. Cost share requirements shall not

apply in the case of remedial actions to

be taken on land held by Indian tribes .

§202 . Changes the State cost share requirement for all response actions entered into after the date of enactment to

15% .

Judicial Review

of §106 Orders

§135(d)(4) . Orders issued by delegated

States under §106 of CERCLA (concerning imminent and substantial endangerment) shall be subject to judicial review .

No comparable provision .

Delisting

§135(d)(5) . Authorized States may remove all or part of a designated facility

from the NPL . EPA may not relist any

facility so removed .

§131(b)(3) . Similar authority, but no

prohibition on further Federal actions .

Facilities delisted from the NPL may be

relisted if cleanup is not completed in

accord with the enforceable agreement,

No comparable provision .

§135(e) . The Administrator shall review

annual certifications by the States concerning the use of funds, may seek reimursement of funds misapplied or missed, may withdraw program delegation,

and may perform emergency removals in

delegated States .

§131(c) . Similar provisions, except for

emergency removal authority . The President is specifically prohibited from taking any response or removal action at

facilities where such authority has been

delegated to the State .

§127(g) . If a State fails to comply with a

requirement of a contract or cooperative

agreement, the Administrator may seek

in court to ensure performance or to

recover funds advanced . No prohibition

on Federal actions in States with contracts or agreements.

sponsibilities

and Authorities

CRS- 1

STATE ROLE

Provision

H .R .2500 (Subcommittee-Approved)

Funding

§135(f) . The Administrator shall provide

grants to delegated States to carry out

programs under this section . Nine factors to be considered in determining the

amount of such grants are specified .

Grant money may not be used to pay the

State share of response costs required

under §104(c)(3) of CERCLA .

§131(d) . Similar provisions .

No comparable provision, although EPA

does provide funding to States under

CERCLA contracts and cooperative agreements .

Non-NPL

Facilities

§135(h) . A determination that a response

action at a non-NPL facility is complete

under State law is final and shall not be

subject to further response action under

any Federal law, unless the Administrator determines that an emergency removal is necessary .

No comparable provision .

No comparable

Reimbursements

No comparable provision .

§503 . Amends §123 of CERCLA to authorize reimbursement of States up to

$50,000 for expenses incurred in carrying

out a removal action after the date of

enactment and to add "cleanup of illicit

drug laboratories" to the list of emergency response actions for which State and

local governments may be reimbursed .

The amounts allowed for State and local

governments may not be combined for

any single response action .

§619 . Similar provisions . No State may

receive more than $2 million per year

under this section .

Federal-Lead

Sites

No comparable provisio

No comparable provision .

§128(b) . Provides that the Administrator

shall not delegate authority to a State in

cases where EPA has served as the lead

agency for a facility.

o o

CRS- 1 2

Provision

S . 1285

H .R .2500 (Subcommittee-Approved)

Siting

No comparable provision .

§203 . Effective 1 year after the date of

enactment, the President shall not provide any remedial action in a State unless

it submits a report describing its plans

for adequate treatment, storage, and

disposal capacity for hazardous waste

generated within the State .

State Registries

No comparable pro 'oi

No comparable provision .

§204 requires States to establish public

lists of facilities believed to present a

current or potential hazard to human

health or the environment due to the

release or threatened release of hazardous substances, and to update them annually .

Federal

Facilities

S 1285 does not provide for delegation o

t e States of authority over response

actions at Federal facilities .

H .R . 2500 does not distinguish between

Federal and non-Federal facilities in

establishing procedures or authority for

State delegation .

§ 0 provides separate authority for E A

to enter into contracts or cooperative

agreements with States concerning response actions at Federal facilities, inluding authority for States to publish

deadlines for completion of remedial inestigations and feasibility studies, review

and select remedies, and enter into agreedepartments, agencies and

entalities of the United States

and consent decrees with other PRPs .

Sets deadlines and criteria for approval

or disapproval of an application, provi'ons for withdrawal of authority, and

oce

es for enforcement of inter-Agenc agreements and resolution of interAgency disputes between authorized

States and Federal agencies, departments

and instrumentalities .

(continued on

next page)

CRS- 13

Provision

H .R .2500 (Subcommittee-Approved)

Federal

Facilities

(continued from

previous page)

No comparable provision .

§102 adds §121(o) . The President must

extend to States within 50 miles of DOE

facilities the same opportunity for review

and comment regarding response actions

that are provided to States in which the

facilities are located .

§205(a). Similar provision . Applies to

any Federal facility, not just those of

DOE,

Limitation on

Enforcement

for States

Implementing

Certain

Remedial Action

Plans

No comparable provision .

§304 . Prohibits enforcement actions

under CERCLA for any aspect of a remedial action being undertaken at a site

pursuant to an EPA-approved State

plan . State plans shall be approved unless the President finds that the State

does not have the legal authority and

financial and personnel resources, organization, and expertise to carry out a

remedial action . Procedures are established for withdrawing approval .

No comparable provision .

Indian Tribes

No comparable provision .

§205(b) . Treats Indian tribes substantially the same as States for the purposes of

contracts and cooperative agreements,

voluntary response actions, and involvement in the initiation, development, and

selection of remedial actions.

No comparable provision .

§501(b) . Cost share requirements shall

not apply in the case of remedial actions

to be taken on land held by Indian tribes .

No comparable provision .

CRS- 1 4

VOLUNTARY CLEANUP AND BROWNFIELDS

Provision

H .R . 2500 (Subcommittee-Approved)

Elements of

Voluntary

Programs

§301(b) establishes a new §133 of

CERCLA. EPA shall provide assistance

to States to establish and expand voluntary response programs. Establishes

elements of a qualifying State voluntary

cleanup program . Programs must ensure

that, if the person conducting a voluntary response fails to complete it, the

necessary response activities are completed .

§ 301 (c) establishes a new §130 of

CERCLA . Similar provision .

§301 establishes a new §128 of CERCLA .

Similar provision .

Funding

§301(c) . Provides that not less than 2%

and not more than 5% of the amount

available in the Fund for the five years

after enactment shall be distributed to

qualifying States for assistance in establishing and administering voluntary programs . Amounts of assistance shall be

determined by the proportion of total

CERCLIS sites in each State .

No comparable pro

§706. Authorizes not more than $20

million for each of fiscal years 1996-2000

for the purposes of technical, financial, or

other assistance to States for voluntary

cleanup programs .

'o .

CRS- 1 5

VOLUNTARY CLEANUP AND BROWNFIELDS

Provision

State

Certification

and Annual

Reporting

S . 1285

No comparable provision .

H .R . 2500 (Subcommittee-Approved)

No comparable provision .

H.R. 228

§128(d), (e), and (j) . At any time after

enactment, a State may submit for review

by the Administrator documents the

State deems appropriate to describe its

voluntary response program, together

with a certification that the program is

consistent with the elements set forth in

§128(c) .

A State voluntary response program shall

be a qualified program 120 days after

submittal of certification, unless the Administrator determines before that date

that the State's submittal is not consistent with §128(c) .

Also establishes procedures for withdrawal and reinstatement of approval . At the

end of each calendar year, States with

qualified programs shall report to the

Administrator on the status of their programs, including a statement regarding

whether the program continues to be

consistent with the elements set forth in

§128(e) .

The Administrator shall report annually

to the Congress on the status of State

voluntary response programs .

CRS- 1 6

0 UNTAR CL ANU

Provision

H.R. 2500 (Subcommittee-Approved)

NPL Listing

No comparable provision .

§128(f) . No portion of a facility subject to

a response action plan approved under a

qualified program under this section shall

be proposed for listing on the National

Priorities List as long as substantial and

continual response activities are being

undertaken to complete the response

action in a timely manner . The Administrator's ability to list on the NPL facilities that have been proposed for listing or

to compel response action under §106 is

not limited by this section,

aivers

No comparable provision .

§128(g) . The Administrator shall promulgate regulations under which States with

qualified voluntary response programs

may waive permit requirements with

respect to voluntary cleanups .

ect on

iability

No comparable provision .

No comparable pro

§128(h) and (k)(2) . The performance of a

voluntary cleanup shall not constitute an

a ission of liability . Also, this section is

of intended to affect the liability of any

erson or to affect other response authorities afforded under any law or regulation

relating to environmental contamination,

except that the successful completion of a

voluntary response action under this

section shall be considered as evidence

that a person acquiring ownership of the

facility is a bona fide prospective purchaser within the meaning of §101(39) of

C C

'on

CRS- 1 7

VOLU

AR C

Provision

AND

OWN

H .R . 2500 (Subcommittee-Approved)

Compliance

with NCP

No comparable provision .

§128(i) . Voluntary response actions under qualified programs shall be presumed

to be consistent with the NCP for purposes of private cost recovery claims under

CERCLA,

Statutory

Construction

No comparable provision .

§128(k)(1) and (3) . This section is not

intended to impose any requirement on a

State voluntary response program .

Nothing in this section shall be construed

to require any person to participate in a

voluntary response program in order to

qualify as a bona fide purchaser .

Brownfields

Defined

§302 (establishes new § 134 of CERCLA) .

Defines "brownfield facility" as a parcel of

commercial or industrial land, the expansion or redevelopment of which is complicated by the potential presence of a hazardous substance, but excludes facilities

subject to removal actions under

CERCLA, facilities on the NPL, facilities

subject to corrective action under RCRA,

facilities being closed under RCRA, facilities subject to administrative orders or

consent decrees, Federal facilities, and

facilities for which cleanup assistance has

been provided under the LUST Trust

Fund .

No comparab e pro

Brownfield

Cleanup

Assistance

Program

§134(b) . The Administrator shall establish a program to provide 10-year interest-free loans to local government entities

and Indian tribes for site characterization of brownfield facilities .

No comparable provision .

'on.

No comparable pro

No comparable provision .

CRS- 18

VOLUNT

Provision

AND B 0

IELDS

H.R. 2500 (Subcommittee-Approved)

Brownfield

Funding

§134(b)(3) . $15 million is authorized to

be appropriated from the Fund in each of

the five years after enactment for interest-free loans .

No comparable pro ion .

No comparable provision .

Brownfield

Maximum

Amount

§134(b)(4) . Loans per facility may not

exceed $100,000 in each fiscal year, or

$200,000 in total .

No comparable provision .

No comparable proviso

Brownfield

Loan

Applications

§134(c), Establishes requirements for

loan applications and procedures for

approval.

No comparable provision .

No comparable pro

io .

CRS- 19

EXEMPTIONS FROM LIABILITY FOR FINANCIAL INSTITUTIONS AND LANDHOLDERS

Provision

Treatment of

Security

Interest Holders

and Fiduciaries

(continued on

next page)

S . 1285

H .R . 2500 (Subcommittee-Approved)

H .R . 228

§ 303(a) . Clarifies the definition of "owner or operator" for determining cleanup

liability, to more clearly exclude holders

of indicia of ownership who hold such

indicia primarily to protect their security

interest, but do not exercise responsibility

for the handling of hazardous substances

on the vessel or facility.

§302(a) . Similar provision .

No comparable provision .

§303(b) . Adds §107(n) to CERCLA to

clarify that the liability of a fiduciary for

a release or threatened release may not

exceed the assets held by the fiduciary to

indemnify the fiduciary . Also clarifies

that a fiduciary shall not be liable for undertaking or directing another to undertake a response action, unless the fiduciary fails to exercise due care and the failure causes or contributes to the release

of a hazardous substance .

§302(b) . Adds §107(p) to CERCLA. Similar provisions .

§606 clarifies that the personal obligations and liabilities of a fiduciary shall be

limited to the extent to which the assets

of the trust or estate are sufficient to

indemnify the fiduciary, unless : 1) the

obligations and liabilities would have

arisen even if the person had not served

as fiduciary; 2) the fiduciary's own failure to exercise due care caused or contributed to the release following establishment of the trust, estate, or fiduciary

relationship; 3) the fiduciary had a role

in establishing the trust, estate, or fiduciary relationship, and the trust, estate,

or fiduciary relationship has no objectively reasonable purpose apart from the

avoidance or limitation of liability under

this Act ; or 4) the fiduciary has not complied with such other requirements as the

Administrator may set forth by regulation . Also clarifies that a fiduciary shall

not be personally liable for undertaking

or directing another to undertake a response action under section 107(d)(1) .

CRS-20

T ONS

AB L

ovision

Treatment of

Security

Interest Holders

d Fiduciaries

(continued from

revious page)

ede

and

Le ng Agency

a ity

C AL NS IT TIO S

0 D RS

H .R . 2500 (Subcommittee-Approved)

§303(b) . Adds §107(o) to CERCLA to

clarify that a lender's liability shall be

limited to the excess of the fair market

value of a vessel or facility on the date on

which the liability is determined, over the

fair market value on the date 180 days

before the response action was initiated,

if a vessel or facility was acquired

through foreclosure, or is held under the

terms of an extension of credit . Liability

is not limited, however, if the lender

causes or contributes to the threatened

release of a hazardous substance.

§302(b) . Adds §107(q) to CERCLA . Similar provisions, except that liability is

limited to what is called "actual benefit,"

defined as the net gain realized on the

sale of property less acquisition, holding,

and disposition costs.

No comparable provision .

§304 . Amends the Federal Deposit Insurance Act to provide that a Federal banking or lending agency shall not be liable

under any law imposing strict liability,

for the release or threatened release of a

hazardous substance from a vessel or

facility acquired in connection with the

exercise of receivership, the provision of a

loan or guarantee, or received as the

result of an enforcement action, unless

the Agency causes or contributes to the

threatened release . Also exempts first

subsequent purchasers of such vessels or

facilities except in four specified circumstances.

§701 amends §101(20), the definition of

"owner or operator", to exclude the U .S .,

any U .S . department, agency, or instrumentality, or a conservator or receiver

appointed by the U .S ., if (1) the U .S . or

the conservator or receiver acquires ownership in connection with the exercise of

receivership or liquidation, and in connection with a seizure or forfeiture ; and

(2) the U.S ., conservator, or receiver does

not participate in the management of the

facility operations that result in a release

of hazardous substances .

No comparable provision .

CRS-2 1

IO S

IAB LI

ovision

FOR FIN

C AL

0 S

LANDHOLDERS

H .R . 2500 (Subcommittee-Approved)

Contiguous

Properties

§305 . A person that owns or operates

real property contiguous to a vessel or

facility at which there has been a release

of a hazardous substance and whose

property is or may be contaminated by

the release shall not be considered liable

under the Act . The Administrator may

issue an assurance that no enforcement

action will be initiated against such person and grant such person protection

against a cost recovery or contribution

action.

§203 adds a new §107(n) to CERCLA .

Similar provisions . In addition, the owner or operator of contiguous property

may petition the President to exclude the

property from the description of an NPL

site, if the property is contaminated solely by ground water that flows under such

property and is not used as a source of

drinking water .

§403(a) . Similar to S . 1285 .

respective

urchasers and

dfall Liens

§306 . As long as a prospective purchaser

does not impede the performance of a

response action or natural resource restoration and exercises appropriate care

with respect to each hazardous substance

found at the facility, such purchaser shall

not be considered liable for the response

costs . If there are unrecovered response

costs, however, the United States shall

have a lien on the facility or may obtain

a lien on other property from the responsible party in an amount not to exceed

the increase in fair market value that

resulted from the response action .

§305 . Similar provision .

§403(a) and (b) . Similar pro

io s .

CRS- 2 2

EXEMPTIONS FROM LIABILITY FOR FINANCIAL INSTITUTIONS AND LANDHOLDERS

Provision

S . 1285

H .R . 2500 (Subcommittee-Approved)

Innocent

Landholders

§307 . Requires that the standards developed by the American Society for Testing

and Materials (ASTM) be used to determine whether a defendant qualifies as an

innocent landholder as a result of having

undertaken all appropriate inquiries into

the previous ownership and use of a facility . Authorizes the Administrator of

EPA to issue alternative standards and

includes a list of 10 considerations to be

included in such regulations .

§303 . Similar provision. Contains a

slightly different list of considerations to

be included by the Administrator in any

regulations .

H.R. 228

No comparable provision .

CRS-23

SELECTIO

ovision

M D

0 S

H .R . 2500 (Subcommittee-Approved)

228

Definitions for

Selection

of Remedy

§401 adds new definitions to CERCLA

§101 : "actual or planned or reasonably

anticipated future use of the land and

water resources" ; "significant ecosystem" ;

"valuable ecosystem" ; "sustainable ecosystem"; "ecological resources" ; and "significant risk to ecological resources that are

necessary to the sustainability of a significant ecosystem or valuable ecosystem"

No comparable provision .

No comparable

Cleanup

Levels

§402 establishes new §121(a) and (b) .

§102 replaces §121 . General Standards .

§121(a)-(b) requires the President to

select remedial actions needed to protect

human health and the environment from

realistic and significant risks through

cost-effective and cost-reasonable means.

Remedies must prevent actual ingestion

of drinking water containing substances

exceeding drinking water standards, or if

no such standard exists, exceeding levels

necessary to protect public health from

realistic and significant risks .

§501 creates new §121(d), Establishment

of Protective Concentration Levels .

ow §121(d)(1) . National Goals . To provide consistent and equivalent protection

of health and the environment to all co

munities, EPA must promulgate, through

a negotiated rulemaking process, national

goals that are to be applied to all remedial actions .

§121(a)(1) . Most Cost-Effective Remedial

Action . Requires the EPA Administrator

to select a remedial action that is the

most cost-effective means of achieving

the goals of protecting human health and

the environment .

Human health is deemed to be protected

if, considering the expected exposures

associated with future land or water use,

the remedial action achieves a residual

risk from 1) exposure to carcinogenic

contaminants such that cumulative lifetime additional cancer risk is in the

range of 104 to 10'" for the affected population, and 2) exposure from

noncarcinogens does not pose an appreciable risk of deleterious effects .

(continued on

page)

The environment is deemed to be protected if the remedial action will protect

against significant risks to ecological

resources needed to sustain a significant

or valuable ecosystem and will not interfere with a sustainable functional ecosystem .

For non-threshold carcinogens, a remedy

is deemed protective if the remedy limits

the lifetime additional cancer risk from

exposure to hazardous substances to

within the range of 10 4 to 10 -6 for the

affected population, based on actual or

reasonably anticipated future land, water, and other resource uses. Actual

exposure data are to be used where obtainable . Where estimates are used, protective levels are to be based at the 90th

percentile of the exposure probability

distribution . For exposure parameters

based on assumptions, the most plausible

assumptions are to be used .

o sion .

National goals for human health must be

expressed as a single numerical level for

c cinogens (not a range as under cure regulations) and a single level for

oncarcinogens .

he national goals are to provide the

ba for protective concentration levels,

unless achieving the goals is technically

nfeasible or unreasonably costly .

§121(d)(7)(C) . The goal is to restore

ground water and surface water that may

used for drinking to : 1) maximum

inant levels (MCLs) or to [stricter]

on-zero maximum contaminant level

goals (MCLGs) set under the Safe DrinkWater Act (SDWA); and 2) protective

co ce a io

els.

CRS-24

SELECTION OF REMEDIAL ACTIONS

Provision

Cleanup

Levels

(continued from

revious page)

S . 1285

H .R . 2500 (Subcommittee-Approved)

HR. 228

medy is deemed protective to the

environment if, based on future resource

uses, the remedial action will protect

against realistic and significant risks to

resources necessary to the sustainability

of a significant ecosystem .

§502 amends §121(b)(4) . At a minimum,

ground water remedies must prevent

actual ingestion of drinking water containing substances exceeding MCLs or

MCLGs, prevent exposure to any other

contaminants in excess of levels necessary

to protect human health, prevent impairment of Clean Water Act-designated uses,

e containment .

Re edial actions must meet State standards for point source discharges .

CRS- 2 5

0 0

MEDIAL ACTIONS

ovision

S . 1285

H .R. 2500 (Subcommittee-Approved)

H .R . 228

Remedy

Selection

Criteria

§402 amends §121(a)(1)(C) . Requires EPA

en selecting among alternative remeial actions to balance the following facto s

effectiveness, reliability,

s or

acceptability to the com, an engineering practicability .

§102 amends §121(d)-(f) . Directs the

President to select appropriate remedial

actions using a process that includes : 1)

an evaluation of current and anticipated

future use of land, water and other resources ; 2) a site-specific risk assessment

and 3) a balancing of the following factors : effectiveness of the remedy (includng technical practicability), reliability,

risks to the affected community, acceptability to the affected community, and

reasonableness of costs compared to othremedial options.

§502 amends §121(b) . Directs the President to select remedies that are protecve of human health and the environent and provide long-term reliability at

easonable cost . Methods of remedy are

o be selected using a process that : 1)

considers reasonably anticipated future uses of land, and 2) prevents exposures in

excess of protective concentration levels

by balancing the following factors : effectiveness, long-term reliability, short-term

isk, acceptability to the community, and

easonableness of the cost. Other factors

water include timeframe, and

i lementability of the remedy .

§121(f)(2) Cost-Effectiveness . The Presiust demonstrate and certify that

selected remedy represents a coste ective risk reduction and that the

c mental cost is justified and reasonably related to the incremental risk rection benefits of the remedy . Increental costs and risk reduction benefits

oat be compared among significant

remedial options and quantified to the

extent practicable and appropriate . The

President must give preference to the

option that adequately protects human

health and the environment at the lowest total cost over the life-cycle of the

emery.

CRS-2 6

SELECTION OF REMEDIAL ACTIONS

Provision

Technical

Impracticability

S . 1285

H .R . 2500 (Subcommittee-Approved)

H .R. 228

§402 amends §121(a)(2) .

§102 amends §121(f) and (j) .

§502 amends §121(d) .

If EPA finds that protecting human

health and the environment is unreasonably costly, EPA must evaluate remedial

measures that reduce risks and select a

technically practicable remedial action

that minimizes risk by cost-effective

means .

§121(f) . When identifying an appropriate

remedial action, the President is to balance technical practicability as well as

other factors .

§121(d)(7)(C) The President may select a

remedial action that does not meet the

Act's water remediation goals if compliance is technically impracticable from an

engineering perspective, or in certain

ground water cases, achieving the goal is

unreasonably costly.

A finding of technical impracticability

may be made based on a determination

that there in no known or reasonably

anticipated reliable means of achieving

health and environmental protection

goals at a reasonable cost .

§121(j) . In evaluating remedies to be

selected, the President is to make findings of technical impracticability from an

engineering perspective on the basis of

projections or modeling without requiring that the remedial measure first be

constructed, operated and reviewed, unless projections and analysis are inadequate .

To the extent practicable, the President

is to make determinations of technical

acticability on the basis of projections or modeling without requiring that

the remedial measure under consideration be first constructed, installed, operated and reviewed, unless projections and

analysis are inadequate .

The President is to issue guidance for

determining technical impracticability

from an engineering perspective for use

in selecting remedies for contaminated

ground water .

CRS-2 7

SELECTION OF REMEDIAL ACTIONS

Provision

Legally

Applicable,

Relevant and

Appropriate

Requirements

(ARARs)

S . 1285

§402 adds new §121(a)(5) . Effectively

eliminates ARARs .

A remedial action does not have to meet

any standard that would apply under any

Federal or State law, except that where

hazardous wastes are transferred off-site,

such waste must go to a permitted facility under the Solid Waste Disposal Act .

H .R . 2500 (Subcommittee-Approved)

§102 amends §121 . Replaces ARARs .

§121(b) . Remedies must prevent actual

ingestion of drinking water containing

substances exceeding drinking water

standards, or if no such standard exists,

exceeding levels necessary to protect

public health from realistic and significant risks .

§121(k) . Procedural requirements of Federal and State standards and requirements, including permitting requirements, do not apply to actions conducted

onsite .

§121(1) . For any facility to which they

apply, standards set forth in this section

generally govern cleanup, remedy selection and on-site hazardous substance

management in lieu of any other Federal,

State, or local standards . Air emissions

or water discharges resulting from remediation technology must meet State standards unless any of 6 specified exceptions

apply .

§121(m) . In general, any State requirement that would effectively prohibit the

land disposal of hazardous substances

Statewide does not apply .

H .R . 228

§501 adds new §121(d)(7), Revises ARARs .

In general, remedial actions must: 1)

comply with the substantive requirements of any Federal or more stringent

State environmental or facility siting law ;

2) meet any stricter protective concentration levels applicable to remedial actions

conducted under any State environmental law ; and 3) comply with any other

State standard or requirement consistently applied to remedial actions under State

law.

Procedural requirements of Federal and

State standards and requirements, including permitting requirements, do not

apply to actions conducted onsite .

Remedial actions must restore ground

water and surface water that may be

used for drinking water to maximum

contaminant levels or non-zero maximum

contaminant level goals (MCLGs) under

the Safe Drinking Water Act (SDWA) .

For substances for which SDWA standards have not been set, protective concentration levels must meet the Act's

national goals .

121(d)(8) . In general, any State requirement that would effectively prohibit the

land disposal of hazardous substances

Statewide does not apply .

CRS-28

SELECTION OF REMEDIAL ACTIONS

Provision

Remediation of

Contaminated

Water

S . 1285

H .R . 2500 (Subcommittee-Approved)

.R . 228

§121(a)(4) . Requires remedial actions to

protect uncontaminated ground water

suitable for humans and livestock . Remedial action decisions must take into considerationn actual or planned future use,

natural attenuation, and remedy selection criteria in 121(a)(1)(C) .

§102 adds new §121(b) . For water that

may be used for drinking water, remedies

must achieve drinking water standards ;

if no standard exists, remedies must

achieve levels necessary to protect human health from realistic and significant

risks .

§501 amends §121(d)(7)(C) .

Drinking water. The Act's goal is to restore any surface or ground water that

may be used for drinking water to SDWA

MCLs or nonzero MCLGs and to protective concentration levels for any other

contaminants.

There may be no presumption that water

suitable for drinking by humans or livestock is the actual or planned or reasonably anticipated future use .

Remedial action for protecting uncontani-,

inated ground water may be based on

natural attenuation or biodegradation .

Remedial action for contaminated, ground

water may include point-of-use treatment .

§502 amends §121(b)(4) . Remedies for

ground water generally must : 1) prevent

actual ingestion of water containing contaminants in excess of MCLs or non-zero

MCLGs ; 2) prevent exposure to any other

contaminants in excess of levels necessary

to protect human health, 3) prevent impairment of surface water designated

uses under the Clean Water Act (unless

technically impracticable) ; 4) ensure containment of source areas in ground water . Alternate concentration levels may

be set if specified conditions are met (e .g,

the remedial action includes monitoring,

and enforceable measures to preclude

human exposure from any known or projected points of entry of the ground water

into surface water .

Other ground water . For ground water

that cannot be used for drinking water,

remedial actions must attain levels appropriate for current and future use, including the use of water to which the contaminated ground water discharges .

CRS-2 9

SELECTION 0

MEDIAL ACTIONS

revision

S . 1285

H .R . 2500 (Subcommittee-Approved)

H .R . 228

ethods of

emediation :

tion

Controls

§402 adds §121(a)(6) . Institutional Controls . Remedial actions that use instituional and engineering controls are to be

considered to be on an equal basis with

other alternatives .

§102 creates new §121(c) . Method of

Remediation . Remedial actions may include treatment, source control, natural

uation, engineering controls, institutional controls, point of use treatment,

provision of alternative water supply or

other methods . No preference or bias

applies to any method(s) .

§502 amends §121(b) . Methods of

Remediation . Remedial actions may include treatment, containment, a combin

ion thereof or another method .

§121(3) . Institutional Controls . Whenever

a remedial action relies on land or water

use restrictions, the President must spec

the nature of the restrictions and

may ensure that the restrictions are

ncorporated into a hazardous substance

asement (§104(k), see below) .

§121(b)(4) Institutional Controls . Whenever a remedial action relies on restrictions on the use of land, water, or other

esources to achieve protection of health

and the environment, the President must

specify the required restrictions including

restrictions on the uses of land and surface water, and on well drilling. The

strictions may be incorporated into a

zardous substance easement (§104(k)) .

For `hot spots' (areas of relatively high

contamination within a facility that coul

pose significant risks), reasonableness of

cost is to be given less consideration and

reatment is the preferred remedy . Interor

I containment may be selected

circumstances.

CRS- 30

SELECTION OF REMEDIAL ACTIONS

Provision

S . 1285

H .R . 2500 (Subcommittee-Approved)

H.R. 228

Risk

Evaluations

§403 adds a new §127 . Facility-Specific

Risk Evaluations .

§127(a) . Use . A facility-specific risk evaluation is to be used to : identify the risks

posed. by a facility ; compare the relative

protectiveness of alternative potential

remedies ; and demonstrate that the selected remedial action can. achieve goals .

The risk evaluation must comply with

principles that ensure that future land

and water use is considered, and that the

evaluation is scientifically objective and

includes all relevant data.

§101 adds a new §127. National Risk

Protocol .

§127(a) . Risk assessments conducted

under CERCLA must provide scientifically objective and unbiased risk estimates

and characterizations, distinguish scientific findings from other considerations ;

a nd. be based onn relevant and current

information, including epidemiological

data and site-specific information .

§501 . National Risk Protocol. Amends

§121(d)(2) . Requires EPA to promulgate a

national risk protocol for conducting

CERCLA risk assessments for use in

determining need for remedial action, in

setting protective concentration levels

(PCLs) of chemicals, and in evaluating

remedial alternatives . The protocol's goal

is to promote realistic risk assessments .

§127(b) . Risk Evaluation Principles . Risk

evaluations must be based on plausible

estimates of exposure, use facility-specific

data or plausible assumptions, and use all

relevant and scientifically objective data

available, etc .

§127(c) . Risk Communication Principles .

The document reporting the results of

the risk evaluation must clearly explain

the risks, identify the assumptions and

uncertainties, present a range and distribution of risk estimates and exposures,

state the size of the population at risk,

and compare facility risks with other

daily and regulated risks .

§127(d) . Regulations . EPA must issue

regulations that promote realistic risk

characterization .

§127(b) . Guidelines . The President must

publish guidelines (after peer review and

public comment) that define the use of

modeling, identify criteria for selecting

transport and fate models, define the use

of population and individual risk estimates, define approaches for addressing

cumulative risks ; establish sampling

methods and data quality requirements ;

and establish procedures for independent

and external peer review for significant

risk assessments, models or methodologies . The guidelines are to establish

protective exposure levels that are set, to

the extent feasible, at the 90th percentile

of exposure probability distribution .

§127(c) directs the President to review

the health effects values of the 25 carcinogens that pose the greatest risk at NPL

sites and to publish an assessment of the

values.

The protocol is to establish : standardized

exposure scenarios for a range of land

uses, and standardized methodologies for

evaluating exposure pathways and developing PCLs for the 100 contaminants

most often found at facilities . Standardized methodologies must include national

constants for chemicals, facility-specific

variables, and exposure factors .

The President must conduct a risk analysis at each facility using standardized

methodologies, or if not available, using

facility-specific risk assessments . In developing the protocol, EPA is to identify

toxicity information sources, define the

use of probabilistic modeling, identify

criteria for using models, define the use

of high end and central exposure cases

and assumptions, etc . The protocol must

set guidelines for risk assessments and

for setting PCLs which protect at the

90th exposure percentile of the affected

population .

CRS-3 1

SELECTION OF REMEDIAL ACTIONS

Provision

S . 1285

Lead

H.R. 2500 (Subcommittee-Approved)

H .R . 228

§101 adds new §127(e) directing EPA to

conduct a lead-in-soils policy review .

§102 adds new §121(p) . In selecting remedies or predicting blood lead levels, the

President may not use models concerning

lead uptake unless data or projections

are reconciled with empirical data from

residents .

Future Land

and Water Use

§403 adds §127(e) . As part of the facilityspecific risk evaluation prepared for use

in selecting a remedy, EPA must determine the actual or planned or reasonably

anticipated future use of the land and

water resources at a facility by consulting

the community response organization,

facility owners and operators, PRPs, and

local officials .

§102 amends §121(d) to require that

when selecting a remedy, the President

must take into account the current and

reasonably anticipated future uses of

land, water, and other resources at a

facility . A list of factors to be considered

in identifying anticipated future use

must generally include the following : any

consensus recommendation of the Community Assistance Group and views of

the affected community; historical land,

water, and other resources of the facility

and surrounding properties, current uses

of the facility and surrounding properties, recent development patterns in the

areas and population projections ; Federal, State and local land use designations

or zoning; potential for economic redevelopment; and availability of alternative

sources of drinking water .

§502 amends §121(b) to require that

when selecting a remedy, the President

must take into account the reasonably

anticipated future uses of land at a facility . In doing so, the President is to consider factors including: consensus recommendations of the Community Working

Group (and redevelopment authority in

the case of a Federal facility scheduled

for closure) ; land use history of the facility and surrounding properties, and recent

development patterns and population

projections ; Federal or State land use

designations, including parks, recharge

areas designated in ground water or surface water protection plans ; current local

zoning and land use plans; potential for

economic redevelopment ; proximity to

residences, sensitive populations or ecosystems, etc ; and property owners' plans

for the facility .

§121(d)(7)(C) . For contaminated ground

water not used for drinking water, remedial actions must meet levels appropriate

for reasonably anticipated future use of

the ground water (with exceptions) .

CRS-3 2

SELECTION OF REMEDIAL ACTIONS

Provision

S . 1285

H .R. 2500 (Subcommittee-Approved)

H .R . 228

Presumptive

(or Generic)

Remedial

Actions

§403 adds new §128 . Presumptive Remedial Actions .

§102 adds new §121(g) . Generic Remedies . The President may establish generic remedies where demonstrated to be

effective in protecting human health and

the environment from realistic and significant risk in a cost-effective and costreasonable manner . Generic remedies

may not be established for mining and

mineral processing facilities or related

areas . Generic remedies may provide for

consideration of site-specific factors .

§502 adds §121(b)(5) . Generic Remedies .

To streamline the remedy selection process and facilitate rapid voluntary action,

the President must establish (taking into

account specified remedy selection factors

specified) cost-effective generic remedies

for categories of facilities and expedited

procedures that include community involvement for selecting generic remedies .

The remedy must be protective of human

health and the environment at the facility and, where appropriate, may be selected without considering alternatives .

§128(a) requires EPA, within 1 year, to

issue a rule establishing presumptive

remedial actions for common types of

facilities with well understood contamination and exposure problems .

§128(b) . Presumptive remedies must have

been shown to be technically practicable

and cost-effective methods of protecting

human health and the environment .

§128(c) . EPA may issue various

presumptive remedial actions based on

circumstances .

§128(d) . Presumptive actions may include

institutional and engineering controls .

§402 adds §121(a)(3) . A remedial action

that implements a presumptive remedial

action under §128 is considered to meet

the goals of protecting human health and

the environment .

§404 adds §129(a)(2) . EPA or a PRP may

propose a presumptive remedial action

for a facility after conducting a facility

evaluation . However, EPA may not require a PRP to implement a presumptive

remedial action .

Where a generic remedy applies, the

President need not perform a site specific

risk assessment or evaluation of alternatives .

Waiver . A party may seek a waiver from

a generic remedy .

CRS-3 3

SELECTION OF REMEDIAL ACTIONS

Provision

S . 1285

H .R. 2500 (Subcommittee-Approved)

H .R . 228

Remedy

Selection

Procedures

(ResultsOriented

Cleanups)

§404 adds §129 . Remedial Action Planning and Implementation .

§129(a) . Establishes procedures, in lieu of

those under any other law, for conducting remedial investigations, feasibility

studies, records of decisions, remedial

designs, or remedial actions . Procedures

provide for public participation .

EPA is to conduct a facility evaluation to

characterize the risk posed by a facility .

Draft facility evaluations must be submitted to EPA for approval .

EPA or a PRP must prepare and implement a remedial action plan which includes the results of a facility evaluation

and a description of the facility-specific

risk-based evaluation under §127 and

discussion of the selected remedy . If a

PRP prepares a proposed remedial action

plan, the PRP must submit the plan to

EPA for approval . A plan is considered

approved if EPA does not disapprove the

proposed plan within 90 days .

§102 adds §121(h) Early Evaluation and

Phased Remedial Action .

§103 amends §105(b) of CERCLA . Similar to H .R . 2500 §121(h)(1) .

§121(h)(1) directs the President to consider new results-oriented procedures for

conducting remedial investigations and

feasibility studies in an efficient, costeffective and timely manner . The President is to emphasize performance-based

standards, and where appropriate, provide means to update the most practicable methods under performance-based

standards.

§502 adds §121(b)(4)(B) . Early Evaluation

and Phased Remedial Action .

§801 . Amends §105(a) of CERCLA to

require the President within 180 days of

enactment to revise the National Hazardous Substance Response Plan to establish

results-oriented procedures for remedial

actions that minimize the time required

and reduce potential for exposure to

hazardous substances in a cost-effective

manner .

The President shall, as part of the next

proposed revision of the National Contingency Plan after enactment, propose,

as appropriate, to incorporate the new

procedures for conducting the remedial

investigations and feasibility studies .

§121(h)(2) . To facilitate efficient site

characterization that promotes early

evaluation of remedial alternatives and

to prevent ground water contamination

problems from worsening, the President

is to ensure that hydrogeologic and contaminant-related information is collected

as part of site characterization activities

prior to and during remedial investigation .

The President is to employ a phased approach to site characterization and remediation ; information gathered in each

phase is to inform the next phase .

To prevent ground water contamination

from worsening, the President must ensure that hydrogeologic and contaminantrelated information needed to select final

ground water remedial actions (including

findings of technical impracticability) is

collected as part of site characterization

activities prior to and during remedial

investigation . Data taken from early

response actions is to be included .

To the extent technically practicable, the

President is to implement phased remedial actions to minimize migration of contaminated ground water .

CRS- 34

SELECTION OF REMEDIAL ACTIONS

Provision

State

Involvement in

Remedy

Selection

H .R. 2500 (Subcommittee-Approved)

For a discussion of the State role

generally, see p . 8-13 .

§102 adds §121(n) and §121(o) .

§121(n) directs the President to promulgate regulations providing for meaningful

State involvement in the initiation, development, and selection of remedial

actions .

No comparable provision .

§121(o) Department of Energy Facilities .

For States adjoining (i .e ., within 50 miles

of) Department of Energy facilities, the

President must extend the same opportunities for review and comment regarding

response actions at those facilities that

are provided to the States in which these

facilities are located .

§205(a) . Similar provision . Applies to

any Federal facility, not just those of

DOE .

Affected States may enter into a memorandum of understanding to address

issues of mutual concern .

Emergency

Removal

Actions

§803 . Increases the amount of time and

money that may be spent on response

actions to 2 years and $4 million (double

the amounts in current law) . Allows the

President to exceed these limits when to

do so would be "not inconsistent with any

remedial action" selected or anticipated

(as opposed to "consistent with the remedial action to be taken" in current law) .

§112 amends §104(c)(1) to extend emergency removal authority to 2 years and

$3 million from present 1 year and $2

million .

§505(a) amends §104(c)(1) to extend emergency removal authority to 2 years and

$4 million from present 1 year and $2

million .

§505(b) amends 120(e) to authorize removal actions that address nonemergency

removal actions .

CRS- 3 5

SELECTION OF REMEDIAL ACTIONS

Provision

S . 128 .5

Transition

Rules

§406 adds new §131 . Transition Rules for

Facilities Involved in Remedy Selection

on the Date of Enactment .

(a) For a facility that is the subject of a

remedial investigation and feasibility

study (completed or not), PRPs or EPA

may choose to follow the new remedial

action plan process in §129 .

(b) Where a record of decision (ROD) has

been signed but construction not begun,

EPA or the State must, at the request of

the implementer of the ROD, determine

whether §127 would lead to the selection

of a less costly remedy that achieves the

goals of human health and environmental protection under this bill .

construction has begun but not completed or long-term operation is expected,

EPA or the State must, upon request,

determine whether §127 would result in

the selection of a remedy that saves at

least 10% in cost and achieves health and

environmental protection goals .

For subsections (b) and (c), if EPA or the

State does not respond within 90 days of

a request, §127 will apply by default .

(d) Disputes under this section will be referred to mediation .

HR . 2500 (Subcommittee-Approved)

H .R . 228

§115 . Effective Date and Transition

Rules .

§507. Transition .

(a) For facilities where no ROD has been

published, these amendments become

effective on the date of enactment .

(a) This title becomes effective 180 days

after enactment . After that date, remedies are to be selected in accordance with

these amendments.

(b) Where a ROD has been signed but

the remedial action has not been completed, any person with a substantial

interest at a facility, or State, or Federal

official overseeing a remediation at the

site may petition the President, within

270 days of enactment, for a review of

the action and request an alternative

remedial action consistent with these

amendments . The President must select

the alternative if it would result in a

total life-cycle cost savings of at least $1

million and protect human health and

the environment from realistic and significant risks . Opportunity for public

comment is provided .

Judicial Review . Negative decisions on

petitions are subject to judicial review .

(b) Until national goals and the national

risk protocol are promulgated, the President may continue to use current regulations and guidance with regard to acceptable risk levels and risk assessments .

the effective date of this title . If the President determines that a change to a ROD

signed prior to the effective date of this

title is necessary, the President may apply the rules in effect at the time the

original ROD was signed .

CRS- 36

C I0

P ovision

Judicial

Review

H .R . 2500 (Subcommittee-Approved)

§407 amends § 113(h) to provide judicial

review of actions under §129(c) (i .e., facility evaluations, proposed remedial action

plans, and final remedial designs which

are subject to EPA review) . The court

may stay the implementation of challenged actions .

§114 amends §113(h) by adding to the

list of actions subject to judicial review

by the appropriate Federal court : any

action to review a final ROD regarding

the selection of a remedy .

No comparable provision .

(Also see Transition Rules, above .)

§404 adds §129(c) to provide that EPA's

approval or disapproval of a remedial

action plan with an implementation cost

of more than $15 million is subject to

judicial review.

Hazardous

Substance

asements on

Property Use

No comparable provision .

§113 adds new §104(k) authorizing the

President to acquire a hazardous substance easement restricting or controlling

the use of land, water, or other natural

resources . Provides for procedures and

requirements for such easements .

Easements remain enforceable for 20

years and may be renewed for additional

20-year periods . Whenever an easement

is acquired, the President must record a

notice of property use restriction in the

local public land records. An easement

remains in force until it expires by its

terms or until the holder executes and

records a termination and release in

accordance with terms of the easement

and approved by EPA .

§506 . Similar amendment to H .R . 2500

except that easements remain enforceable

in perpetuity, unless the holder of the

easement executes and records a termination and release according to the terms of

the easement and approved by EPA.

CRS- 37

SELECTION OF REMEDIAL ACTIONS

Provision

Delisting Sites

from the

National

Priorities List

(NPL)

S . 1285

§405 adds new §130 . Completion of Remedial Action and Delisting . Delineates

procedures and timeframe for EPA to

provide notice of completion of a remedial action and debating of a facility, including a certification that the facility

has met all remedial action requirements .

Delisting does not affect liability allocations, cost-recovery provisions, or operation and maintenance obligations .

§130(c) Release from Liability . A PRP is

released from liability if the facility is

available for unrestricted use and operation and maintenance is not needed .

If the facility is not available for unrestricted use or operation and maintenance is required, EPA must review the

status of the facility every 7 years and

require additional remedial action, as

needed . A facility or portion of a facility

may be made available for restricted use .

Revision of National Contingency Plan .

§408 amends §105 to prevent EPA, when

listing a site on the NPL, from including

property at which no release has occurred, but to which a contaminant has

migrated in ground water . This does not

limit EPA's authority to obtain access

such property and to undertake response

actions .

H .R . 2500 (Subcommittee-Approved)

No comparable provision .

H .R . 228

No comparable provision .

CRS-38

SELECTION OF REMEDIAL ACTIONS

Provision

Additions to the

National Priorities List

S . 1285

H .R . 2500 (Subcommittee-Approved)

H .R . 228

§802 . Additions. Amends §105 of

CERCLA to limit additions to the NPL

during each of the three 12-month periods following enactment to 30 new vessels and facilities . Additions may be

made only with the concurrence of the

State in which the vessel or facility is

located,

§502 . Amends §105 of CERCLA to provide that, after the date of enactment,

the President may add no more than 30

facilities to the NPL in 1996, 25 in 1997,

20 each in 1998 and 1999, and 10 each in

2000-2002 . Additions may be made only

with the concurrence of the State and

local government . Relistings shall not

count against the cap on additions to the

NPL .

No comparable provisions .

Sunset. Authority to add vessels or facilities to the NPL shall terminate 3 years

after enactment. Upon completion of

response actions for all vessels and facilities on the NPL, the Administrator's

authority shall be limited to providing a

national emergency response capability,

conducting R&D, providing technical

assistance, and conducting oversight of

grants and loans to the States.

The President may not add any facility

to the NPL after 12/31/02 .

No comparable provisions

CRS- 3 9

LIABILITY ALLOCATIONS

Provision

Facilities

Covered by

Allocation

S . 1285

H.R. 2500 (Subcommittee-Approved)

H.R. 228

§501 adds new CERCLA §132 .

§132(a) defines, for purposes of §132,

"allocation party' ; "allocator" ; and "mandatory allocation facility", which is a

facility on the NPL that is non-federally

owned, or if federally owned, has at least

one non-Federal PRP . It has a record of

decision (ROD) or remedial action plan

approved by EPA after 6/15/95, or if approved prior to 6/15/95, construction or

operation and maintenance continues

after 6/15/95.

§207 Adds new CERCLA §128.

§128(a)(1) . EPA shall initiate the allocation process : (1) if any PRP requests it

for any response action costing more

than $1 million if he has incurred response costs, resolved his liability to the

U .S ., or received a §106 administrative

order ; and (2) at any facility with two or

more PRPs for which there is a Fund

reimbursable share under §128(n) . EPA

y also initiate allocation at a facility

involving two or more PRPs if one of

them requests it, and EPA deems it appropriate .

§413 adds new CERCLA §130 .

§130(a) . Allocations will be performed at

non-federally owned NPL facilities (1)

with two or more PRPs, for which a ROD

is selected after 2/3/94, or (2) for which a

ROD is selected before 2/3/94, if requested

by a PRP which has resolved its liability

with the U .S . or is performing a remedial

action under a §106 order ; or (3) at

EPA's discretion, at any other facility

with two or more PRPs .

Excludes facilities where cost shares are

already determined, and facilities where

no PRP is liable for arranging for disposal, or for transporting hazardous substances .

Excludes facilities where cost shares are

already determined .

Excludes facilities where cost shares are

already determined, and facilities where

all the PRPs are current or past owners

or operators .

§132(b) . Generally, the costs covered by

an allocation are those incurred at a

mandatory allocation site after 6/15/95,

and those incurred at requested and

permissive allocation sites .

§128(a) . An allocation applies to the

costs of all response actions selected after

the date of enactment .

§130(a) . Allocations performed pursuant

to (2) or (3) above shall not be construed

to require payment of an orphan share,

or the conferral of reimbursement rights .

§132(b) Differentiates Mandatory, Requested (by a P .RP), and Permissive (if

EPA considers it appropriate) Allocations .

An allocation at a mandatory facility

where a ROD has been signed prior to

6/15/95, and construction or operation

and maintenance continues after that

date, or at a non-mandatory allocation

facility, will not require payment of an

orphan share (subset . 1) or reimbursement (subset . I) .

CRS-4 0

OC TIONS

Provision

H .R. 2500 (Subcommittee-Approved)

oratorium on

Litigation and

nforcement

§132(c) sets a moratorium on litigation

until 120 days after the allocator's report

is issued, and a moratorium on §106

administrative orders of 180 days .

§128(b) . The moratorium extends for

180 days after the allocator's report for

new actions, and for 90 days for pending

actions and §106 administrative orders .

§130(b) . The moratorium extends for 90

days after the allocator's report for new

and pending actions .

Allocation

Process Begins ;

Search for

PRPs

§132(d) . Initiation of allocation process .

EPA shall begin the search for PRPs as

soon as practicable and . will publish the

list of PRPs no later than 120 days after

beginning the search ; any person may

submit information concerning a PRY .

§128(c) . The PRP search must be initiated within 60 days of the request for allocation ; and the initial list of PRPs must

be published within 120 days of beginning the search .

§130(c) . The PRP search must begin

within 60 days of the commencement of

the remedial investigation (RI) ; any person may submit information concerning a

PRP .

Selection of

Allocator

§132(e) . PRPs and a representative of

the Fund elect the allocator. The bill

identifies eligible allocators and unqualified allocators ; EPA designates the allocator if PRPs do not within 60 days .

§128(d)-(f) . Similar provisions

§130(e) . Similar pro sions, except EPA

casts a vote for each identified but insolvent party .

Also, if a PRP proposes a party for the

allocation process who is found by the

allocator not to be liable, the party's

costs of participating in the allocation

process, including attorney's fees, shall

be borne by the PRP .

§130(c) . A party assigned a zero share by

the allocator will have his costs and attorney's fees paid by the PRP who named

him .

§132(f) . Within 30 days of selecting the

allocator, EPA will provide him and the

PRPs all required and potentially relevant information about the facility and

the PRPs .

§132(g) . Any person may submit information about the facility and PRPs to

the allocator for 60 days.

CRS-4 1

LIABILITY ALLOCATIONS

Provision

H .R . 2500 (Subcommittee-Approved)

Lists of

Allocation

Parties, and of

De Mieromis

Parties

§132(g) . The allocator issues the final

list of allocation parties (PRPs), and a

list of de micromis parties within 120

days of the publication of the initial list .

The listed de micromis parties have no

further liability, including liability for

contribution .

§128(f) . The final list of allocation parties is due within 180 days of the issuance of the initial list of PRPs . No mention of de micromis party list.

§130(c) . EPA issues a preliminary list of

allocation parties within 18 months of

commencement of the RI, and a final list

within 120 days after that .

Federal, State,

and Local

Agencies

§132(h) . Any Federal, State, or local

governmental agency named as a PRP is

subject to, and entitled to the benefits of

the allocation process as any other allocation party is .

§128(g) . Similar provisio

§130(t) . Similar pro

ons regarding

Federal agencies only, but no specific

statement about representing the Fund.

EPA or the Department of Justice (DOJ)

represents the Fund in the allocation

proceeding.

No comparable provision .

Private

Allocation

§132(i) . Any group of PRPs may submit

a binding settlement to the allocator for

any response action within the scope of

the proceeding if it covers 100% of the

cost of the action, and does not allocate a

share to a non-signatory of the settlement nor to a person in the orphan share

(§132(1)) . Signatories waive the right to

seek recovery of costs .

§128(h) . Similar pro ion, except the

Fund representative may also participate

as a signatory .

§130(g) . Similar to H .R . 2500 .

Allocator's

Powers

§132jj) . The allocator has information

gathering and other powers .

§128(i) and (k)-(1) . Similar provisions .

PRPs have a duty to respond, and face

civil and criminal penalties for failure to

respond fully .

§130(i)-(j) . Provisions are similar to

H .R . 2500.

§403(c) amends CERCLA §201(a)(1), clarifying the equal application of the Act to

the U .S . Government. Sovereign immupity is waived, and the payment of service

charges for such things as processing

permits is approved . EPA may issue §106

orders to other Federal agencies. States

may impose penalties and fines on Federal agencies. Federal agencies have the

right of contribution protection when

they have resolved their liability .

CRS-4 2

Provision

ITY ALLOCATIONS

H . R. 2500 (Subcommittee-Approved)

Allocator's

Final Report

The allocator shall issue his report specifying PRP cost shares within 180 days

after the issuance of the final list of allocation parties; EPA may grant an additional 90 days for good cause . The allocation share for each PRP shall separately

state percentage shares for activity prior

to and after 12/11/80 .

§128(i) . Similar provision, except that

allocation shares are not broken down

into pre- and post-12/11/80 shares .

§130(h) . Similar provisions except allocation shares are not broken down into preand post-12/11/80 shares.

Retroactivity

§132(7 . State and local agencies and

other tax-exempt parties pay only 50% of

their allocated shares for activity prior to

12/ll/80 ; the other 50% is allocated to

the orphan share .

§201 adds new CERCLA §112(g) . PRPs

may receive a reimbursement from the

Fund for 50% of cleanup costs and

natural resource damages referred to in

§107(a), incurred after 10/18/95 for

liability due to pre-1987 activity .

No comparable pro

Allocation of

Shares ; and

Retroactive,

Strict, Joint

and Several

Liability

§132(k) . The allocator prepares a nonbinding allocation of shares based on

specified equitable factors, and without

regard to joint and several liability .

§128(j) . Similar provision . The House

bill has two additional equitable factors

for owner/operators.

§130(h) . Similar provisions to 5 .1285,

except that §130(w) states that this section does not affect retroactive, strict,

joint and several liability under this title .

CRS-4 3

LIABILITY ALLOCATIONS

Provision

S . 1285

H .R. 2500 (Subcommittee-Approved)

H .R . 228

Orphan Share

§132(1) . The orphan share consists of:

(A) the shares of insolvent or defunct

parties ; (B) the 50% shares of tax-exempt

parties under §1320 ; and (C) the

remainder of any share not paid by a

party where : (i) it was an expedited

settlement with a person with limited

ability to pay ; (ii) it was a de minimis

party ; (iii) the party's share is limited or

reduced by any provision of this Act ; or

(iv) the person settled with U .S . before

allocation was completed .

§128(n) . The "fund reimbursable share"

consists of the remainder of any share

not paid by a party where : (i) the party

had a de minimis exemption ; (ii) the

party was entitled to a reimbursement

under §112(g) ; or (iii) the party was entitled to an exemption or limitation under

new §107(n) .

§130(h). The orphan share consists of (i)

the shares of identified, but insolvent

parties ; (ii) the difference between the

share attributable to parties who contrib=

uted MSW or sewage sludge, and the

share actually assumed by them, which is

limited to 10% of the response costs ; (iii) the difference between the share attributable to parties with a limited ability to

pay, and the share actually assumed by

them; and (iv) shares attributable to

small businesses that were eligible for an

expedited settlement, but to whom EPA

failed to make a timely settlement offer .

A share attributed to a hazardous substance that cannot be attributed to any

party will be distributed [does not say if

equally] among the allocation parties and

the orphan share .

A share attributed to a hazardous substance that cannot be attributed to any

party will be distributed [does not say if

equally] among the allocation parties and

the orphan share .

CRS- 44

LIABILITY ALLOCATIONS

Provision

S . 1285

xemptions an

Limitations of

iability

§305 adds CERCLA §107(p) . Exempts

the owner of property contiguous to

contaminated property from liability .

A may grant the owner an assurance

of no enforcement, and protection against

ost recovery .

H .R . 2500 (Subcommittee-Approved)

H.R. 228

§203(a) adds new CERCLA §107(n), creating exemptions and limitations of

(1) Pre-1987 de minimis contributors (defined as contributing less

han 1%) . (2) Municipal landfills, used

oil recycling facilities, and battery

ecycling facilities listed on the NPL

prior to 6-15-95, except for facilities

owned or operated by the U .S ., or required to have a RCRA hazardous waste

ermit . (3) municipal solid waste (MSW)

sewage sludge, if person is a homeowner or renter, small business, or smal

non-profit organization . (4) De micromi

contributors (less than 55 gallons of liquid, or 100 pounds of solids) . (5) Facilities acquired by inheritance . (6) Govern

mental entity that owned the road over

which hazardous substances were transported, or that granted a license to conduct business . (7) Liability limit of 10%

o to al cleanup costs for MSW and

sewage sludge . (8) Liability limit of fair

market value or proceeds of sale for a

ch itable organization receiving the

y after disposal took place . (9)

ction contractor acting on the

owner's orders . (10) Property contiguous to an NPL site .

§403(a) and §404(e) . Adds §107(n) creatg exemptions from liability . Similar to

he House bill for items (3)-(10), except

hat for item (9) the exemption applies

only to small business construction conactors, as defined . Does not mention

ems (1) and (2) .

so has a liability exemption for a bona

de prospective purchaser, and for the

.S . Government when responding to a

atural disaster .

CRS - 4 5

IAB

Provision

ALLOCATIO S

H .R . 2500 (Subcommittee-Approved)

Activities

Contrary to

No comparable provision .

§205 adds new §313 . The exemptions

and limits of liability of §107(n), and the

reimbursement of §112(g) shall not apply

to any person whose liability is based on

an act that was illegal at the time,

"illegal" meaning to have violated Federal

or State law governing hazardous

substances . For purposes of §107(n)(1)

and §112(g), the applicable statute of

limitations shall be deemed to have

expired on 1/1/92 .

No comparable provision .

§132(m) . The allocator shall issue a list

of de minimis parties in his report (or

earlier) . Within 90 days EPA shall make

a settlement offer to all de minimis parties, stated in dollars, based on an estimate of total cleanup costs . A de minimis party has 60 days to accept the offer ;

he would have no further liability under

Federal or State law . The de minimis

proceeds will be held by EPA for timely

payment to the person performing the

response action .

As noted above, de

exempt from liabili

§130(c)-(d) . EPA must make a written

settlement offer to de minimis parties

within 12 months and 60 days after the

RI has begun . If a party does not reach

agreement with EPA within 60 days

thereafter, he is subject to the allocation .

ties are

If a small business does not receive a

settlement offer within 120 days after the

required deadline, it has no further

liability unless the President determines

that there is just cause for the delay .

CRS- 4 6

LIABILITY ALLOCATIONS

Provision

Expedited

Settlements

Requiring

Attorney

General's

Approval

Duty to

Respond

H .R . 2500 (Subcommittee-Approved)

No comparable provision .

No comparable pro sion .

§132(n)-(o) . Parties have a duty to answer the allocator's requests for information . Not responding, and falsely

responding carry civil and criminal penalties.

§214(1)-(3) amends CERCLA §122(g) .

Expedited settlements are authorized for

de minimis parties (contributed less than

1% by volume) ; arrangers for transport,

and transporters of MSW and sewage

sludge (liability limited to 10% of total

costs) ; and a natural person, small business, or municipality with a limited ability to pay.

§412 amends CERCLA §122(g) . Similar

provisions.

§211(4) amends CERCLA §122(g) . The

eligibility requirements for a de minimis

party to receive an expedited settlement

may be waived,

§409(4) . Similar

§214(4) increases the mi

of a settlement embodied in an

administrative order requiring the

Attorney General's prior written

approval from $500,000 to $2 million .

§412(4) . Similar provisio

Sec . 214(5) amends CERCLA sec . 122(h)

authorizing agency and department

heads to settle claims for response costs,

fines, civil penalties, and punitive

damages under $2 million without the

Attorney General's prior written

approval .

§412(5) amends CERCLA §122(h)

authorizing agency and department heads

to settle claims for fines, civil penalties,

and punitive damages under $300,000,

and claims for total response costs under

$2 million without the Attorney General's

prior written approval .

§128 . Similar

§130(i)-(j) . Similar provisions .

o s

o sion .

CRS-47

LIABILITY ALLOCATIONS

Provision

H .R . 2500 (Subcommittee-Approved)

Documents

§132(p) . The allocator shall maintain a

document repository ; confidentiality of

documents, their discovery and admissibility, etc .

§128 . Similar provisions .

§130(k) . Similar provisions .

Rejection of

Allocator's

Report

§132(q)-(r) . EPA and DOJ may jointly

reject an allocation report within 180

days for irrationality, or bias, etc . A

second rejected allocation report concerning the same response action may be judicially reviewed . Additional rules .

§128(o)-(p) . Similar provisions, except

EPA and DOJ have 120 days to reject

the report .

§130(1)-(m) . Similar to S . 1285, but if

EPA and DOJ reject a second report, the

President may commence an action under

§107 (liability) .

Settlement

Provisions;

Annual

Report

§132(s) . Provisions of settlements based

on allocations, and limits to premiums

for litigation risk faced by the U.S . ; annual report to Congress on the allocation

process .

§128(q) . Similar provisions except no

report to Congress .

§130(o) and (v) . Similar provisions .

Orphan Share

Reimbursement

§132(t) . EPA shall promptly reimburse

the allocation parties for costs attributable to the orphan share .

No comparable provision .

§130(q)-(r) . Similar provisions . Sets a

limit on orphan shares paid from the

Fund of $300 million per year .

Administrative

Order

Reimbursement

§132(u) . An allocation party ordered to

perform a response action is entitled to

prompt reimbursement of costs in excess

of his share .

§128(r) . Similar provisions .

§130(o) and (q) . Similar provisions .

Municipal

Landfill

Reimbursement

No comparable provision .

§202(a) adds new CERCLA §112(h) .

PRPs performing a response action at a

municipal landfill after the date of the

bill's introduction are eligible for reimbursement if they are covered by the

(new) municipal landfill exemption (new

§107(n)(2)) .

No comparable pro

§202(b) . Adds new §112(i) . Rules for Reimbursement .

'on

CRS- 4 8

LIABILITY ALLOCATIONS

Provision

H.R. 2500 (Subcommittee-Approved)

Post-Settlement

Litigation

§132(v) . Recovering costs by EPA from

allocation parties ; what costs are recoverable .

§128(s) . Similar pro

New

Information

§132(w) . New information may lead to a

new allocation if certain conditions are

met .

§128(t) . Similar provision .

§130(n) . Similar provision .

Allocator's

Discretion

§132(x) . EPA shall not limit the allocator's discretion .

§128(u) . Similar provision .

§130(s) . Similar provision .

Representation

of United States

and a State

No comparable provision .

§130(u) . EPA, DOJ, and a delegated

State have a right to participate in the

allocation process .

ion

§130(p) . Similar provisions; also, the

admissibility in court of the allocator's

report .

CRS-4 9

LIABILITY ALLOCATIONS

Provision

S . 1285

Response Action

Contractors

(RAC9)

§502(a) amends CERCLA §101(20), definition of "owner or operator", to exclude

response action contractors (RACs) .

H .R. 2500 (Subcommittee-Approved)

§210 amends CERCLA §119 .

§210(d) . The liability of PACs shall be

determined in accordance with §119 .

§502(b)-(i) amends §119 .

§502(b) . The existing exemption of RACs

from liability under Federal law is

extended to State law .

(continued on

next page)

H .R . 228

§130(x) . A person who is potentially

liable solely as a RAC with respect to a

facility, shall not be named as an

allocation party at that facility .

§408 amends CERCLA §119.

§408(a) . The liability of RACs shall be

determined in accordance with §119 .

§210(a). Similar provision, and also

extends exemption to local law .

However, this section does not apply if a

State adopts a law concerning RAC

liability after enactment of this Act .

No comparable provision .

Conduct of RACs will be evaluated based

on standards and practices in effect at

that time and place .

§210(a) . Similar provision .

No comparable provision .

An activity performed in accordance with

an EPA-approved plan is not negligence .

No comparable provision .

§408(b) . There is no liability for testing

or implementing an alternative or innovative technology if its use is approved by

EPA .

§502(c) . Indemnification authority may

apply to claims under Federal or State

law.

§210(b) . Similar provision, and also

applies to local law.

§408(c) . Similar provision, and indemnification authority also covers common

law.

§502(d) . The decision to indemnify will be

based on availability of insurance .

No comparable provisio

§408(e). Similar provision ; and EPA will

also consider the adequacy of competition

in response to solicitations.

§502(e) . Threatened releases may be indemnified, as well as releases .

§210(c) . Similar prov o

§408(d) . Similar provision .

CRS- 50

LIABILITY ALLOCATIONS

Provision

Response Action

Contractors

(RACs)

(continued from

previous page)

H .R . 2500 (Subcommittee-Approved)

§502(f) . Indemnification covers all response actions .

§210(g) . Similar provisio

No comparable provision .

§502(g) . Subcontractors are also included .

No comparable provision .

§404(e) adds CERCLA §107(o) . A small

business construction contractor (as

defined) shall not be liable if his activities

were in accord with a contract with the

owner or operator of the facility .

§502(h) . Surety bond p o sion is extended beyond 12/31/95,

§210(f) . Similar provision .

§408(f) . The surety bond provision is

extended to 12/31/99 .

§502(i) . Establishes a 7-year statute of

repose .

§210(e) . Sets a limit of 6 years after

work is completed on actions against

RACs .

No comparable provision .

EPA's

Information

Gathering and

Access

§503(a) . Amends §104(e) to make information available to the public 14 days

after it is obtained .

§216 . Similar, only makes information

available to the public after 45 days .

No comparable pro

Also applies the confidentiality requirements to contractors, and amends the

general confidentiality requirement regarding information obtained by EPA,

§401. Similar to H.R. 2500 . Also authorizes EPA to demand additional information, and to require the informant to

certify it ; and authorizes administrative

subpoenas .

No Withholding

Information

from Congress

No comparable provision .

§216(d) clarifies that CERCLA §104(e)

does not authorize withholding information from Congress .

§401(f) . Clarifies that §104(e) does not

authorize withholding information from

Congress .

Release of

Evidence

§503(b) . Amends §106(a) and §122(e)(1)

to require that evidence of each element

of liability is presented to PRPs .

§206(a) and §211(3) . Similar provisions .

§402(b) and §409(3) . Similar provisions .

CRS- 5 1

ALLOC T O S

Provision

Administrative

Orders

H .R . 2500 (Subcommittee-Approved)

No comparable provision .

§206(a) . Amends §106(a) . Administrative orders may not be amended by EPA

unless there is a subsequent finding of

imminent and substantial endangerment .

§402(a) . CERCLA §106 administrative

orders may be amended without a subsequent finding of imminent and substantial endangerment .

§402(c) clarifies the meaning of "sufficient

cause" regarding the failure to comply

with a §106 administrative order .

Contribution

Protection

§504(a) clarifies CERCLA §113(f)(2) that

PRPs who have resolved their liability

with the U.S, or a State are not liable for

contribution claims or cost recovery

No comparable pro

(b) Writes new definitions in §101'. "allocated share", "de micromis party", "de

minimis party", and "orphan share" .

Religious,

Charitable,

Scientific, and

Educational

Organizations

§505(a) . Amends §101(20), definition of

"owner or operator", to include religious,

charitable, scientific, and educational

organizations.

No comparable provision.

§403(a) . Similar provisions .

(b) Limits the liability of these organizations for a facility received as a gift to

its fair market value .

Common

Carriers

§506 . Clarifies §107(b)(3) regarding liability of common carriers .

§204(b) . Similar .

§404(d) . Similar provision . .

Railroads

§507 . Adds §107(s) to limit the liability

of a railroad owner or operator of a spur

track .

No comparable provision .

Triple Damages

No comparable provision .

§204(a) . Clarifies triple punitive damages provision of §107(c)(3) .

§ 0 (c) . Similar

ion .

CRS-5 2

LIABILITY ALLOCATIONS

Provision

H .R . 2500 (Subcommittee-Approved)

Cost Recovery

Actions

No comparable provision .

§208. Clarifies §113(g) concerning the

period during which action may be

brought for . recovery of costs : generally,

within 3 years of completion of a removal

action, and within 6 years of completion

of a remedial action .

§405, Similar o

ion .

Contribution

Actions

No comparable provision .

§209 . Clarifies §113(f) concerni

bution actions .

§406 . Similar o

ion .

Recycling

No comparable prov on

§215 adds CERCLA §129 exempting recyclers from liability if they can make certain threshold demonstrations ; it applies

to scrap paper, plastic, glass, textiles,

rubber (other than whole tires), metal,

and batteries .

§414 adds CERCLA §129 . Similar provisions .

Oversight Costs

No comparable pro

'on

No comparable pro

'on

§404(a) directs EPA to calculate its response action oversight costs on a national basis as a percentage of total response

costs ; the rate shall not exceed 10% .

PRPs are liable for these costs .

Pollutant and

Contaminant

No comparable provision .

No comparable pro

§404(b) . Liability for pollutants and

contaminants is identical to that for hazardous substances only if they are a danger to health, and are not associated with

the production or extraction of hydrocarbons, including gas, petroleum, etc.

EPA's

Authority to

Promulgate

Regulations

No comparable provision .

contri-

§407 rewrites CERCLA §115 restating

EPA's authority to promulgate regulations, and specifically affirms the validity

of EPA's lender liability rule of 4/29/92 .

CRS- 5 3

Provision

ALLOC

H.R. 2500 (Subcommittee-Approved)

ancial

uments

No comparable provision .

§211 adds CERCLA §122(p) to authorize

the use of annuity contracts and other

financial instruments by PRPs to make

payments for response costs over a period of time .

No comparable provision .

Cost Recovery

Challenges

No comparable provision .

§211 adds CERCLA §122(q)-(r) permitting a PRP to challenge the cost recovery

component of a settlement when a contribution action is barred, by suing EPA

(or an authorized State) . An unsuccessful challenger is liable for attorney's fees .

No comparable provision .

Authority to

Hire

No comparable provision .

§212 adds CERCLA §122(s) authorizing

EPA to hire neutral professionals to assist in §122 settlement negotiations .

§410 . Similar to H .R . 2500 .

Final Covenants

Not to Sue

No comparable provision .

§213 amends CERCLA §122(f) requiring

EPA to offer final covenants not to sue

to settling parties who meet defined

conditions and pay a premium ; the premium may be waived or reduced for inability to pay. Discretionary covenants

not to sue are also authorized, when in

the public interest, in settlements that

do not qualify for a final covenant .

§411 . Similar to H .R . 2500 .

CRS-5 4

Provision

H .R. 2500 (Subcommittee-Approved)

Transfer of

uthorities

§601 rewrites CERCLA §120(g) .

§120(g)(1) . Defines for §120 "interagency

agreement", "transfer agreement", and

"transferee State" .

§601 rewrites CERCLA §120(g) .

No comparable provision .

S ate

ication

§120(g)(2) . A State may apply to EPA to

exercise EPA's authorities at any facility

owned or operated by the U .S . in the

State.

H.R. 2500 does not distinguish between

Federal and non-Federal facilities in

establishing procedures or authority for

delegation .

No comparable pro o

T nsfer of

orities

§120(g)(3) . EPA shall agree to the transfer if: (1) the State has adequate legal

authority, financial and personnel resources, organization, and expertise ; (2)

the State has demonstrated experience

with similar authorities ; (3) the State

agrees to be bound by Federal requirements of §129 governing the design and

implementation of the facility evaluation,

remedial action plan, and remedial design ; and (4) the State agrees to be bound

by any interagency agreements (under

§120) in effect at the time .

If there is no interagency agreement,

within 120 days the State shall agree

with the agency that owns the facility on

a process for resolution of any disputes

regarding remedy selection .

EPA shall not impose any other terms or

conditions on the State .

No comparable provision .

§120(g)(1) . Similar

CRS-5 5

FEDERAL FACILITIES

Provision

Effect of

Transfer

H .R . 2500 (Subcommittee-Approved)

§120(g)(4) . The transfer gives the State

exclusive authority to determine the

manner in which those authorities are

implemented .

§120(g)(3) . Nothing shall affect the exercise by a State of any other authorities

that may be applicable to Federal facilities in the State .

Existing interagency agreements are unchanged, except for the State replacing

EPA .

§120(g)(2) . Similar provision .

Selected

Remedial Action

§120(8)(5) . A remedial action selected by

a transferee State is the only one required to be conducted, except for a

RCRA corrective action initiated prior to

enactment of this section .

No comparable provision .

EPA Approval

of State

Application

§120(g)(6)-(8) . EPA must act on a State's

application for transfer of authority within 120 days, or it is deemed to have been

granted . If an application is disapproved

a second time, it is subject to judicial

review .

No comparable provision .

Withdrawal of

Authorities

§120(8)(9) . EPA may withdraw the transferred authorities for cause, as specified .

No comparable provision .

State Cost

Responsibility

§120(g)(10) . A State may require a remedial action exceeding Federal standards if

the State pays the incremental costs .

No comparable provision .

CRS- 56

Provision

ACI TIES

H .R. 2500 (Subcommittee-Approved)

Dispute

Resolution and

Enforcement

§ .120(g)(11) . A dispute over a remedial

action proposed by a Federal agency shall

be resolved at the final level by the agency head and the State Governor . If no

agreement is reached ., the Governor shall

make the final decision . An interagency

agreement is enforceable in U .S . district

court . The court may enforce compliance, impose civil penalties not to exceed

$25,000 per day, and review a challenge

by the Federal agency in accordance with

§113(j) .

Community

Participation

120(g)(12) . If, prior to 6/15/95, a Federa

gency had established a communityased advisory group for a facility, it may

continue its activities, but would not be

eligible for a technical assistance grant .

§120(g)(1) . Similar provisions .

o comparable o

H .R . 228

No comparable provision .

CRS- 5 7

FEDERAL FACILITIES

Provision

Department of

orgy

ronmental

Cleanup

Requirements

285

§602(a) . Defines "civil or criminal sanetion", and "Department of Energy environmental cleanup requirement" for use

in this section .

§602(b) . Within 120 days of enactment,

the Secretary of Energy, after notice and

opportunity for comment by Federal,

State, and local agencies, shall submit a

list to Congress specifying the Dept . of

Energy (DOE) environmental cleanup

requirements that cannot be carried out

with the funds appropriated specifically

for that purpose . For FY 1997 and annually thereafter the Secretary shall provide the President information on DOE's

budgetary needs, and a list of environmental cleanup requirements that cannot

be met within DOE's budget request for

that fiscal year, together with other information . The President shall submit

that information to Congress with the

annual budget request . After funds have

been appropriated, DOE shall revise the

list to reflect any differences between the

budget request and funds appropriated .

DOE Civil or

Criminal

Sanctions

and

Judicial Review

§602(c) . No civil or criminal action may

be sought against the U .S ., its employees,

or contractors for a failure to comply

with a DOE environmental cleanup requirement because of lack of funds.

§602(d) . A decision by the President or

DOE in preparing a list shall not be subject to judicial review .

2 00 (So co

to -A

o d)

228

CRS-5 8

FEDERAL FACILITIES

Provision

S . 1285

H .R. 2500 (Subcommittee-Approved)

Innovative

Technologies for

Remedial Action

at Federal

Facilities .

§603(a) adds CERCLA §311(h) . A Federal facility on the NPL may be designated

by the President for research, development, and application of innovative technologies for remedial action at the facility . EPA will coordinate such activities .

§602(a) adds CERCLA §311(h) . Similar

provision .

§603(b) amends §311(e) . The annual

report to Congress shall include information on the §311(h) research activities .

§602(b) amends CERCLA §311(e) . Similar provision.

Federal Facility

Listing on the

NPI,

§604 amends CERCLA §120(d) . The

listing of Federal facilities on the NPL

may provide notice that specified uncontaminated parcels are excluded .

§607 . Similar provision .

No comparable provision .

Federal Facility

Listing Deferral

§605 amends §120(d)(3) . An appropriate

factor to be taken into account in placing

sites on the National Priorities List is the

extent to which the Federal land-holding

agency has arranged with EPA or a State

to respond to the release under other

legal authorities .

§606 . Similar

No comparable pro

Transfers of

Uncontaminated property

§606 amends §120(h)(4)(A) . Federal property to be transferred that is identified

as uncontaminated shall never have had

hazardous substances or petroleum products stored upon it, instead of storage

having been allowed upon it for up to a

year, as present law allows .

§604. Similar pro sion .

§603 . Similar provision .

Demonstration

to Governor of

Successful

Remedy

No comparable provision .

§603 amends §120(h)(3) . With regard to

a Federal facility that is not on the NPL,

it must be demonstrated to the State

Governor, rather than the Administrator, that the remedy is operating successfully .

§602 amends §120(h)(3) . Similar provision .

ion .

H.R. 228

No comparable pro

CRS-59

Provision

Agreements to

Transfer by

eed

Applicability of

CERCLA to

ederal Entities

and Facilities

(continued on

nex page)

285

o comparable provision .

No comparable o

ion .

tAL AC

H.R. 2500 (Subcommittee-Approved)

No comparable provision .

§604 adds §120(h)(5) . A U .S . agency may

agree to transfer real property or facilities by deed prior to the entering of such

deed .

§605 rewrites CERCLA §120(a)(1) concerning the applicability of CERCLA to

the U .S . government .

(A)-(B) . The U .S . is subject to all Federal, State, interstate, and local substantive and procedural requirements, including administrative orders, and penalties

and fines .

charges .

(D) . Neither the U .S . nor its employees

is immune from any process or sanction

of a State or Federal court .

(E) . No U .S . employee is personally liable for any civil penalty related to his

official duties, but is subject to criminal

sanctions . No U.S . agency is subject to

criminal sanctions .

(F) . The waiver of sovereign immunity

does not apply to a State law applied

more stringently to the U .S . than to others .

(G) . This section applies only to the liability of the U .S . under §§106 and 107 .

§615 similarly rewrites CERCLA

§120(a)(1) .

§120(a)(1)(A)-(G) are similar .

CRS- 60

FEDERAL FACILITIES

Provision

pplicability of

CERCLA to

Federal Entities

and Facilities

(continue from

previous page)

S . 1285

No comparable provision .

H .R . 2500 (Subcommittee-Approved)

H .R . 228

(H) . EPA or a delegated State may issue

a §106 administrative order to any agency of any branch of the U .S . government,

but it is not final until the agency has

ad the opportunity to confer with the

nt or the delegated State .

( ) . EPA may issue a §106 administrative order to any agency of any branch o

the U .S . government, but it is not final

until the agency head has had the opporty to confer with the EPA Adminisor . Unless a previously enacted State

law or State constitution requires otherwise, penalties and fines collected from

the U.S . shall be used only to improve or

protect the environment or to defray the

costs of environmental protection or enforcement .

(I) . U .S, agencies have the right to contribution protection .

( ) . Similar o

§605(3) deletes §120(a)(4), which gives

States authority over Federal facilities

of on the National Priorities List .

§6 5(3) . Similar pro

CRS-6 1

H .R . 2500 (Subcommittee-Approved)

Interagency

Agreements at

Mixed

Ownership

Facilities

No comparable provision .

Annual Studies

Environmental

Priorities at

Federal

Facilities

No comparable provision .

§608 . Each Federal agency shall conduct

a study each year to determine environmental management priorities at its

facilities on the NPL, and report to Congress within 90 days of the enactment of

its annual appropriation. The study

shall not impair the agency's obligations

to comply with requirements agreed to

under §120, unless the requirements

have been addressed or waived, without

objection from the State or Federal regulating agency.

§601 amends §120(e) . A Federal agency

that owns or operates a facility at which

it exercised no control over the activities

that resulted in a release of hazardous

substances is subject to the cleanup requirements of §120(e), unless it demonstrates that the agency was not the primary cause, the activities were pursuant

to a statutory authority and occurred

before 1976, and those responsible are

financially viable and capable of performing or financing the response action . If

the conditions are not met, the agency

is subject to the cleanup requirements . If

they are met, the agency may issue §106

orders ; if the person seeks reimbursement, the agency (not the Fund) shall pay .

If the agency fails to obtain performance

within 12 months, the exception provided

by this paragraph is void, and the agency

shall commence a remedial investigation/feasibility study within 6 months.

o comparable provision,

CRS-6 2

RAL ACIL

Provision

Judicial

Removals

H.R. 2500 (Subcommittee-Approved)

No comparable provision .

§609 . Any action initiated in any State

or local court against the U .S . regarding

hazardous substances may be removed by

the U .S, to the appropriate U .S . district

court .

H.R. 228

No comparable provision .

CRS-63

NATURAL RESOURCES DAMAGE ASSESS

Provision

Restoration of

Natural

Resource

amages :

Definitions

H .R .2500 (Subcommittee-Approved)

§701 amends §101 of CERCLA by defining "natural resource", "commitment for

use", "baseline", "compensatory restoration", "ecological service", "primary restoration", and "restoration" .

§401 amends CERCLA §107 to define

"restoration", "reasonable restoration

measures", "cost-effective", "cost-reasonable", "timely", and "baseline condition" .

No comparable ro

ion .

§804 amends §1006 of the Oil Pollution

Act with new definitions for "cost-effective," cost-reasonable," and "timely ."

As ssing/

atural

Resource

amages

§701 also amends CERCLA §107 provisions concerning the costs and damages

for which a party would be liable, as well

as limiting liability.

§401 amends CERCLA §107 to specify

covered damages, limit liability, define

terms and specify damage measurement

conditions .

§702 amends CERCLA section 107(f)(2),

specifying conditions for natural resource

damage assessments, conditions for judicial review and trustee decisions . It also

amends CERCLA §301 . to require that

regulations be issued and specifies the

contents of those regulations .

§801 amends §1006 of the Oil Pollution

Act of 1990 to ensure cost-effective restoration, rehabilitation, replacement, or

acquisition of natural resources . The

section would require that plans consider

natural recovery as a means of natural

resource restoration .

§704 includes amendments relating to

potential liability, statute of limitations,

and the period for filing actions .

§803 amends §1006(e) of the Oil Pollution

Act to require the issuance of regulations

by August 18, 1998, with requirements

for damage assessments and the appointment of a lead trustee .

§802 amends §1006(d) of the Oil Pollution Act of 1990 to change current language to include "reasonable and necessary " costs and other changes in measurement of damages.

No comparable provision .

CRS- 64

Provision

Consistency

Between

Response and

Restoration

ESOU C S DAM

E S

H .R .2500 (Subcommittee-Approved)

§703 amends CERCLA §107(f) to require

consistency in trustee-selected restoration standards ; amends CERCLA §106(a)

and §121(a) concerning limitations on

response actions .

No comparable provision.

No comparable provision .

CRS- 6 5

APPROPRIATIONS

H.R.2500 (Subcommittee-Approved)

Authorizing

Appropriations

from the Fund

§901 amends CERCLA §111 to authorize

appropriations from the Fund of $8 .5

billion for a 5-year period, FYs 1996 to

2000.

No comparable provision .

§701 amends CERCLA section 111(a) to

authorize $9 .6 billion for a 6-year period,

FY1995-2000 .

Uses of the

Fund, and

Limitations

No comparable provision .

§1001 strikes out CERCLA §111(a)-(e),

including authority to use the Fund for

technical assistance grants, ATSDR activities, occupational safety and health,

and worker training . It makes available,

after 1/1/96, appropriated and other

funds for response, removal, remediation,

private response claims, acquisition,

state/local costs, and contracts/cooperative agreements ; and limits

natural resource damage funds to $50

million per year for FY1996-1998 and

$100 million annually thereafter .

§616 amends CERCLA §111(c)(12) increasing authorized funding for worker

training and education grants to $30

million per year for FY1996-2000 .

§1001 also limits funding for administration, oversight, support, studies, design,

investigations, monitoring, assessment,

evaluation, and enforcement to 25% of

the total for FYs 1996-1998, and 20% for

FY 1999 and thereafter .

§103 authorizes $20 million per year for

technical assistance grants .

Uses - Orphan

Share Funding

§902 amends CERCLA §111 to allow

payment of orphan shares as a use of the

Fund .

No comparable prove on

§702 amends CERCLA §111 to allow payment of orphan shares as a use of the

Fund .

§413 adds a new §130(r) which authorizes

$300 million per year for payment of

orphan shares.

CRS- 6 6

AP RO T O S

HI.R.2500 (Subcommittee-Approved)

lees - ATSDR

nding

§903 amends CERCLA §111 to authorize

the appropriation of funds for ATSDR

activities to $50 million for FYs 19962000 .

§1001 strikes out CERCLA §111(c)(4)

authorizing use of the Fund for ATSDR

activities .

§703 amends CERCLA §111 to authorize

appropriations for ATSDR at $100 million

annually for FYs 1996-2000 ; and $20 million for health services .

Research

unding

§904 sets limits for FY1996-2000 of $20

million per year for alternative or innovative technologies research, development, and demonstration programs, $20

million for hazardous substance research,

demonstration and training, with no

more than 10% for training ; and $5 million for university research centers.

No comparable provision .

§704 sets research, development,and demonstration programs of $40 million for

FY1996, $50 million for FY1997, $55 million for FY1998 and $55 million for FY1999 . Of these funds, not more than 10%

may be used for training and not more

than $5 million may be used for university research centers in any fiscal year .

Authorizing

Appropriations

from General

venues

§905 authorizes appropriations from

General Revenues of $250 million.

annually for FYs 1996-2000,

§1002 authorizes appropriations from

General Revenues of $250 million per

year for FYs 1996 to 2000 .

§705 authorizes appropriations from General Revenues of $250 million per year for

FYs 1996 to 2000 .

§906 provides for additional funding limitations by limiting FY 1996-2000 funding

for State voluntary response programs to

$25 million per year, by limiting (Brownfield Cleanup) Citizen Information and

Access Office funding to $15 million per

year, and by limiting funding for Community Response Organizations to $15 million . This section specifies that collected

recoveries will be credited as offsetting

collections .

No comparable provision.

§706 amends CERCLA §111 and limits

funding for FY1996-2000 for Citizen Information and Access offices to $50 million, and. State voluntary cleanup to $20

million .

ional

ations

CRS- 67

O RI T O S

H .R .2500 (Subcommittee-Approved)

Reimbursing

PRPs

§907 amends CERCLA §ll1(a) to allow

the Fund to be used to reimburse PRPs if

a PRP and EPA have entered into a

settlement under which the Administrator is reimbursed for response costs, and

the Administrator determines (through a

Federal audit) that the costs are unallowable due to contractor fraud or Federal

Acquisition Regulation, or should be adjusted due to audit procedures .

No comparable provision

§707 amends §111 by setting forth conditions for reimbursing PRPs .

Extension of

Taxes

No comparable provisions .

§1011, by amending the Internal Revenue Code, extends the collection of Superfund taxes through 2000 . This section

increases the aggregate from $11.9 billion

to $22 billion until Dec . 31, 2000, extends

the repayment deadline to Dec . 31, 2000,

and provides additional sources of funds

for Superfund .

No comparable provision .

CRS- 68

MISCELLANEOUS

Provision

S . 1285

H .R . 2500 (Subcommittee-Approved)

H .R. 228

ions

e emedy selection definitions to

CERCLA §101 : "actual or planned or

easonably anticipated future use of the

nd and water resources" ; "significant

ecosystem" ; "valuable ecosystem" ; "susainable ecosystem"; "ecological resources" ; and "significant risk to ecological resources that are necessary to the sustainability of a significant ecosystem or

valuable ecosystem" .

§701(1)-(8) amends definitions in

CERCLA §101 : §(10) "federally permitted

elease" ; §(11) "Fund" or "Trust Fund" ;

§(14) "hazardous substance" ; §(20) "owner

or operator" ; §(23) "remove" or "removal" ;

§(25) "respond" or "response" ; §(29) "disosal", "hazardous waste", and "treatant" ; and §(33) "pollutant or contamiant" .

§606(1)-(8) amends definitions in

CERCLA §101 : §(10) "federally permitted release" ; §(14) "hazardous substance" ;

§(20) "owner or operator" ; §(23) "remove"

or "removal" ; §(25) "respond" or "response" ; §(29) "disposal", "hazardous

waste", and "treatment" ; §(33) "pollutant

or contaminant" ; and §(35) "contractual

elationship."

§701(9) adds new definitions in §101 :

'In

ipal solid waste" ; "municipality" ;

fied household hazardous waste

collection program" ; "sewage sludge" ;

small business" ; "small nonprofit organization"; "construction contractor" ; and

aturally occurring radioactive materials" .

§606(9) adds new definitions in §101 :

"bona fide prospective purchaser" ; "fiduciary" ; "municipal solid waste" ; "municipality" ; "qualified household hazardous waste collection program"; "sewage

sludge"; "site characterization" ; "owner,

operator, or lessee of residential property" ; "small business" ; "small nonprofit

organization" ; and "small business construction contractor" .

so see definitions under natural resources damage assessment .

Response CIa

Procedures

o comparable provision .

Also see definitions under natural resources damages assessment .

§702 amends CERCLA §112(a) to clarify

procedures for making claims against the

or response costs .

§607 makes technical amendments to

§111 and §112 regarding response cla

procedures .

CRS- 69

MISCELLAN OUS

Provision

H.R. 2500 (Subcommittee-Approved)

Superfund

Assistance for

Small Businesses

in EPA's

Ombudsman

Office

No comparable provision .

§703 establishes a small business Superfund assistance section in EPA's Small

Business Ombudsman Office to act as an

information clearinghouse, particularly

regarding the new liability allocation

process, expedited settlements, de minimis and de micromis status, and abilityto-pay procedures. The section shall not

give legal advice. It shall also make recommendations for EPA to ensure equitable, simplified, and expedited allocations

and settlements for small businesses .

§608 . Similar to H .R . 2500 .

Consideration of

Local

Government

Cleanup

Priorities

No comparable pro

§704 amends §104(c)(2) . In setting work

and resource priorities, EPA should give

a higher priority to a facility at which a

State or local government is a PRP and

proposes to carry out the remedial action

if (1) it will have a public benefit, and (2)

it will result in that property or adjacent

property being returned to productive

use . A private PRP may request similar

consideration, which is in the Administrator's discretion .

§609 . Similar to H .R .-2500 .

Atomic Energy

Act Savings

Clause

No comparable provision .

§705 . This Act shall not affect the application of the Atomic Energy Act of

1954 to any facility licensed by the Nuclear Regulatory Commission .

§6

ion

Similar provision .

CRS- 70

Provision

AN OUS

H.R. 2500 (Subcommittee-Approved)

Annual Report

to Congress

No comparable provision .

§706 amends §301(h)(1) . EPA's annual

report to Congress on the implementation of CERCLA shall be a report to the

State Governors, as well . It shall include,

additionally, a progress report of accomplishments and expenditures on a Stateby-State basis . EPA shall respond in

writing to any comments submitted to

EPA by a State regarding reports developed under this subsection .

§617 . Similar provision,

Disposal of

Real Property

No comparable provision .

§707 clarifies §104(j) (which authorizes

the acquisition of real property), authog the President to dispose of such

property by sale, exchange, donation, or

other means, in addition to the present

authority to give it to a State .

No comparable provision .

Encouragement

of New

Technologies

No comparable provision .

§605 adds §111(a)(7), authorizing the

payment of up to 50% of the cost of achieving the required level of response after

using an alternative or innovative technology that fails to achieve the level of

response required .

Consistent

Application

No comparable provision .

§610 encourages EPA'S regional offices

to apply CERCLA consistently .

Study of

Participants

("Bad Apple"

Provision)

No comparable provision .

§611 directs EPA to study its procedures

for suspending and barring persons and

businesses, particularly RACs, and to

report to Congress with recommendations within 12 months .

Environmental

Training and

Certification

Organizations

No comparable provision .

No comparable provision.

§613 directs EPA to publish guidelines

ding to a State program for private

organizations to train and certify individuals to perform Phase I Environmen1 S Asses

ts.

CRS-7 1

Provision

LAN OUS

H .R . 2500 (Subcommittee-Approved)

Remedial

Technologies

Demonstration

Programs

No comparable

Davis-Bacon Act

No comparable provision .

§618 directs EPA to publish a repor

within 18 months that identifies existing

remedial technology demonstration and

development programs conducted by

Federal and State governments, and

prioritizes remedial technology needs at

NPL sites .

No comparable provision .

§621 applies the prevailing wage requirements of the Davis-Bacon Act to sites

where any Fund money is used for cleanup . (At present Davis-Bacon applies to

sites where only Fund money is used .)

CRS- 72

AMENDMENTS TO THE SOLID WASTE DISPOSAL ACT

Remediation

Waste

S . 1285

H.R. 2500 (Subcommittee-Approved)

§804(b) . Amends §3001 of the Solid

Waste Disposal Act (RCRA) . Exemption

from Hazardous Waste Regulation .

Exempts remediation waste from the

regulations that bar storage and land

disposal of untreated hazardous waste,

and from the regulations establishing

ethnological requirements for

disposal facilities . Exempts remediation

waste from all hazardous waste regulation unless the requirements are specified

in a Federal or State order, consent agreement, State voluntary cleanup program,

or other mechanism determined by the

Administrator .

§901 adds Subtitle K (§12001-12024) to

RCRA . §12003 provides a similar exemption of remediation waste from

hazardous waste regulation, and also

exempts it from §3020 of RCRA, which

prohibits injection of untreated hazardous waste into underground sources of

drinking water . Exemption applies to

orders, permits, enforceable agreements,

or other remedial action plans issued by

EPA or a State .

No comparable provision .

Permit Requirements . Exempts treatment, storage, and disposal of remediation waste from all Federal, State, and

local permit requirements if it is conducted entirely at the facility at which the

remediation takes place .

§12003(D) . Similar provision, but the

exemption only applies to permits under

Subtitle C of RCRA .

No comparable provision .

Definition . Defines remediation waste as

a solid and hazardous waste generated by

remediation, removal, containment, or

stabilization activities . Includes ground

water, surface water, soil, sediment, or

debris that are contaminated as a result

of a release, and contain a hazardous

waste listed under RCRA or a waste with

an identified hazardous waste characteristic .

§12002 . Similar definition .

No comparable

H .R . 228

ion .

CRS-73

AMENDMENTS TO THE SOLID WASTE DISPOSAL ACT

8 .1285

Remedy

Selection Under

RCRA Corrective

Action Program

No comparable provision .

H .R . 2500 (Subcommittee-Approved)

§12004 . Requires that remedies required under the RCRA corrective action program be "as necessary to protect

human health and the environment

from realistic and significant risks in a

cost-effective and cost-reasonable manner ." Lists 5 factors to be balanced in

selecting remedies . Requires that the

final remedy shall be based upon the

current use of land, water, and other

resources at the site, unless there is a

substantial probability of different future uses .

H .R . 228

No comparable provision .

CRS-7 4

AMENDMENTS TO THE SOLID WASTE DISPOSAL ACT

S . 1285

State Programs

for Management

of Remediation

Waste :

Interim and

Final

Certification

No comparable provisions .

H .R . 2500 (Subcommittee-Approved)

Certification . §12011(a) and 12012(a) .

A State may submit to the Administrafor a certification, supported by such

documentation as the State considers

appropriate, demonstrating that it has

statutory and regulatory authority and

resources in place to control the management of remedial action waste from

generation to disposal .

Interim Program. §12011(b) and

12012(b) . If a State has a hazardous

waste management program authorized

under §3006(b) of RCRA, its

remediation waste program shall be

treated as a certified program beginning

60 days after the submission of certification . In other States, interim authorization begins 1 year after submission .

Interim authorization shall continue

until the Administrator issues a preliminary or final determination concerning

a State's submission .

Determination . Not later than 18

months after enactment (2 years in

States not authorized under §3006), the

Administrator shall issue or deny final

authorization to carry out a remedial

waste management program . If the Administrator fails to act within the 18

month or 2 year deadline, the program

will be considered certified .

H .R . 228

No comparable

ovisions,

CRS- 7 5

AMENDMENTS TO THE SOLID WASTE DISPOSAL ACT

S . 1285

State Programs

for Management

of Remediation

Waste :

Effect of

Certification,

Withdrawal or

Denial, and

EPA's

Regulations and

Implementation

No comparable provisions .

H .R . 2500 (Subcommittee-Approved)

Preliminary Determination .

§12011(c)(2) . In States with authorized

hazardous waste programs, if the Administrator determines on preliminary

review that a State will likely fail to

meet one or more of the necessary criteria, the State shall not have interim

authorization .

Effect of Certification . §12013(a) . Upon certification of a State program,

remediation waste shall no longer be

considered hazardous under Subtitle C

of RCRA or toxic under §6(e) of TSCA .

Withdrawal or Denial. §12014, The

Administrator may withdraw or deny

final authorization . In such cases, the

Administrator shall ensure completion

of any ongoing remedial action plan and

establish a Federal remedial waste action program .

EPA Remediation Waste Program .

§12021. Not later than 24 months after

enactment, the Administrator shall

promulgate regulations for management

of remediation waste and shall implement a program in any State that does

not have a certified program . Upon the

implementation of such program, remediation waste shall no longer be considered hazardous under Subtitle C of

RCRA .

H .R . 228

No comparable provisions,

CRS-7 6

AMENDMENTS TO THE SOLID WASTE DISPOSAL ACT

H .R . 2500 (Subcommittee-Approved)

State Programs

for Management

of Remediation

Waste :

Additional

Authorities

No comparable provisions .

§12022-12024 provide authority for

inspections, enforcement, penalties, and

retention of State authority under the

EPA program.

No comparable provisions .

Underground

Storage Tanks

No comparable provision .

§902 amends §9003 of RCRA to provide

that petroleum-contaminated media and

debris from cleanup of leaking underground storage tanks that is hazardous

due to organic constituents shall not be

considered hazardous waste .

No comparable provision .

H .R. 228 : TITLE VIII ENVIRONMENTAL INSURANCE RESOLUTION FUND

(No comparable provisions in S . 1285 and H .R . 2500)

Title VIII of H .R . 228 creates the Environmental Insurance Resolution Fund . It has no counterpart in either H .R . 2500

or S . 1.285. The purpose of the fund is to settle insurance claims

related to the cleanup of wastes disposed before 1986, and to end

litigation between insurance companies and the insured firms .

Section 801 provides the short title of Title VIII, the

"Environmental Insurance Resolution and Equity Act of 1994 ."

Section 802 provides definitions of 18 terms for purposes

of title VIII .

Section 803 establishes the Fund, providing for its

membership, powers, and other organizational elements .

Section 804 states that the Fund will offer one comprehensive resolution to each eligible person . The offer will be for a

percentage of all eligible costs the person incurred in connection

with facilities on the National Priorities List (NPL) or CERCLA

removal actions related to sites which received hazardous substances before December 31, 1985 . An eligible person is one who

has received a notice that he may be a potentially responsible party

(PRP), or who was liable for a removal, and had entered into a

valid insurance contract for qualified insurance . If the Fund

determines that the person is eligible it must make a resolution

offer to the person within 180 days .

Section 805 provides for the filing and active pursuit of

claims ; documentary evidence must be submitted. A person may

be denied a resolution offer if he was convicted of a felony which

has a material effect on the response costs or natural resource

damage incurred .

Section 806 requires the Fund to make resolution offers

equal to a percentage of the lesser of the eligible costs actually

incurred, or the available insurance coverage . The percentage will

be based on the litigation venue(s) established by the PRP when a

complaint was filed, or the facility location . Three settlement-offer

categories are established, each with a different settlement-offer

percentage : 20, 40, or 60 percent . The categories depend on the

favorableness of the State's insurance law for PRPs .

- The State percentage is 20 percent for Florida, Maine,

Maryland, Massachusetts, Michigan, New York, North

Carolina, and Ohio .

- The State percentage is 60 percent for California,

Colorado, Georgia, Illinois, New Jersey, Washington,

West Virginia, and Wisconsin .

- For all other States, the percentage is 40 percent .

The Fund calculates a weighted average where multiple venues

have been established; large sites receive extra weighting. If an

eligible person seeks payment of costs for a site he owned or leased,

only 70 percent of the eligible costs will be taken into account in

making payments.

Section 807 states that a person may make an irrevocable election to accept any resolution offer of the Fund at the time

the person submits a request for a resolution . A person who does

not make such an election has 60 days after receipt of an offer

from the Fund to accept or reject it . A person who accepts a

resolution offer shall agree in writing to waive any existing or

future claims against any insurer for eligible costs .

Section 808 requires the Fund to make equal annual

payments to the eligible person over 10 years, although they may

be made over a shorter period if the costs do not exceed $50,000 .

There are adjustments for deductibles and self-insurance, and

adjustments for certain duty-to-defend costs .

Section 809 provides that if an eligible person rejects a

resolution offer, litigates a claim, and obtains a judgment against

or a settlement with an insurer, the Fund (1) will reimburse the

insurer the lesser of the amount of the resolution offer, or the final

judgment or settlement ; and (2) may, if the resolution offer

exceeded the final judgment or settlement, reimburse the insurer

for reasonable costs and legal fees .

CRS- 7 8

Section 810 requires an annual audit of the Fund's

financial statements, and authorizes EPA's Inspector General to

conduct audits and investigations as he sees fit .

Section 811 states that enactment of this title will

operate as a stay of the commencement or continuation of any

legal action regarding claims for indemnity . The stay will terminate upon the earlier of :

activities for the prior fiscal year . The report will include a

financial statement, and a determination of whether the fees and

assessments will be sufficient to meet the anticipated obligations

of the Fund . At any time the Fund determines that its fees and

assessments will be insufficient to meet its obligations, it shall

promptly report to the President and the Congress .

Section 816 sets the effective date of title VIII as the

date of enactment .

- the rejection of a resolution offer by the eligible person ;

- a determination by the Fund that an offer will not be

made to a person, or that the person is not eligible ;

- the minimum participation level under section 816 has

not been achieved ; or,

- a failure by the Fund to make timely payments to the

eligible person.

Section 812 calls for the prompt publication of regulations concerning procedures for submitting and documenting

requests for resolution offers . There will be no judicial review of

regulations, except for inconsistency with the law .

Section 813 is concerned with court jurisdiction and

penalties .

Section 814 contains miscellaneous provisions .

Section 815 calls for several reports . By the end of the

fifth year after enactment the President shall report to Congress,

assessing the potential liability of the Fund over the next 5 years,

and recommending amendments to address any shortfall between

the projected potential liability of the Fund and the amounts

authorized to be raised . The President also shall conduct a study

of the number of non-NPL facilities and their average cleanup

cost, and report within 3 years after enactment,

(CERCLA

removal actions at sites that did not later get placed on the NPL

are also eligible for claims .)

The Fund will report by January 15 of each year on its

The section also establishes the min

ticipation

level of eligible persons . Each insurance company providing

coverage to eligible persons will submit to the Fund, within 30 days

of enactment, a list of all eligible persons which filed suit against

it for eligible costs prior to enactment of this Act, and shall notify

each eligible person on the list . Each such person will file a

request for its applicable percentage with the Fund within 60 days,

and the Fund will notify the person of the percentage within 90

days of enactment . The person will decide whether or not to

accept the percentage within 135 days of enactment; failure to

reject the determination will be deemed acceptance .

Within 150 days of enactment the Fund will determine

the number of eligible persons, and the weighted average of such

persons who have accepted or rejected the determination . If more

than 15 percent of the eligible persons or more than a weighted

average of 15 percent have rejected the determinations, the

provisions of this title and the insurance fee provisions of title IX

shall cease to have force and effect . The weighted average is

determined by multiplying the acceptances or rejections by eligible

persons who filed suit times the number of each such person's

eligible facilities .

Section 817 ends the Fund's authority to accept requests

for resolution 10 years after enactment, and ends its authority to

offer resolutions 10 years and 180 days after enactment . Until

terminated, the Fund will continue to make payments pursuant to

resolution offers, and to reimburse insurers with respect to

litigation where the resolution offer was rejected .

Section 818 terminates the Fund if, during any 2-year

calendar period commencing after the 10-year mark, no eligible

CRS- 7 9

person makes a claim to the Fund for eligible costs ; all amounts

remaining in the Fund will be deposited in the General Fund of

the Treasury .

TITLE IX - TAXES

Title IX is divided into three subtitles . One provides the

taxes for the new Environmental Insurance Resolution Fund

(EIRF) created by title VIII, the second extends existing taxes for

the Superfund, and the third requires an annual report from EPA .

The proposal will generate $8 .1 billion for the EIRF at a rate of

$810 million per year for 10 years .

Subtitle A - Environmental Insurance Resolution

Taxes and Trust Fund

Section 901 amends chapter 38 of the Internal Revenue

Code of 1986 by adding a new "Subchapter E - Environmental

Insurance Resolution Taxes" (Sections 4691-4698) . Two new excise

taxes, a retrospective tax and a prospective tax, and two special

assessments are levied on direct insurers and reinsurers . They

generally are effective on January 1, 1995, and expire after

December 31, 2004 .

Years 1-4 . For the first 4 years, 70 percent of the Fund

will be financed by a retrospective tax on net premiums written by

domestic and foreign insurers and reinsurers on certain U .S .

commercial liability insurance during the period 1968-1985 . The

insurance policies subject to the retrospective tax are those

providing commercial comprehensive general liability coverage, or

environmental liability coverage . Insurers would pay about 45

percent, and reinsurers about 25 percent . The other 30 percent

would be financed by a prospective tax on premiums from commercial insurance currently written by domestic and foreign insurers .

The commercial lines of business subject to the prospective tax are

fire, commercial multiple peril, other liability, products liability,

allied lines, inland marine, commercial auto no-fault, other

commercial auto liability, commercial auto physical damage, farm

owners multiple peril, ocean marine, financial guaranty, aircraft,

fidelity, surety, glass, burglary and theft, and boiler and machinery . The Treasury Department may designate additional lines of

business.

In calculating the retrospective tax, the premiums the

insurer received are indexed for inflation and restated in 1985

dollars . An exemption amount (generally $50 million) is subtracted

from that total, and the tax is assessed on the balance . For the

first 4 years (1995-1998), the annual tax rate on direct insurance

is 0 .22 percent, and on reinsurance, it is 0 .83 percent . After 1998,

the tax on direct insurance expires, and the tax rate on reinsurance is 0 .14 percent . The retrospective tax is imposed on a

calendar year basis and is payable in equal monthly installments .

There are special rules that apply for acquisitions of businesses in

years past, for groups of related insurers, and for foreign insurers .

Years 5-10 . For the next 6 years, there would be no

retrospective tax on direct insurance, but the retrospective tax on

reinsurers would continue to generate 25 percent of the Fund's

revenues . A prospective tax on direct insurance will provide 65

percent of revenues, and the last 10 percent would be contributed

special assessment on insurers that wrote insurance coverage

g rise to Superfund claims and for which the Fund makes

resolutions, (A portion of the retrospective tax on reinsurers is

raised by a similar special assessment, which allows them to

account for the tax over a number of years rather than in a single

year .)

Section 902 establishes the Environmental Insurance

Resolution Trust Fund .

Section 903 exempts the Resolution Fund from income

taxation .

Section 904 provides that the effective date is January

1, 1995 .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.