Superfund Reform Act of 1994

TABLE OF CONTENTS:

Title I: Community Participation and Human Health

Title II: State Roles

Title III: Voluntary Response

Title IV: Liability and Allocation

Title V: Remedy Selection and Cleanup Standards

Title VI: Miscellaneous

Title VII: Funding

Title VIII: Environmental Insurance Resolution Fund

Title IX: Environmental Insurance Resolution Taxes and Trust

Fund; 5-Year Extension of Hazardous Substance Superfund

Subtitle A: Environmental Insurance Resolution Taxes and

Trust Fund

Subtitle B: 5-Year Extension of Hazardous Substance

Superfund

Subtitle C: Report by Environmental Protection Agency

Superfund Reform Act of 1994 - Title I: Community Participation and Human Health - Amends the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to direct the President to provide for community involvement in each significant phase of response activities taken under this Act.

(Sec. 103) Requires the President to provide the opportunity to establish a representative public forum, known as a Community Working Group (CWG), to achieve direct and regular consultation with community members throughout all stages of a response action. Requires a CWG to serve as a facility information clearinghouse for the community and authorizes a CWG to offer recommendations to the President on anticipated future land uses.

(Sec. 104) Directs the Administrator of the Environmental Protection Agency (Administrator) to ensure that an independent Citizen Information and Access Office is established in each State and on each tribal land affected by a National Priorities List (NPL) facility.

(Sec. 106) Requires the Administrator to select at least ten demonstration projects to be implemented over a five-year period that relate to the assessment and management of, and response to, multiple sources of risk in and around designated facilities. Directs the Administrator, if a distinct pattern of adverse health effects is identified in the surrounding community, to consider additional health benefits for the community. Provides for demonstration projects in locations that coincide with areas identified as empowerment zones under the Omnibus Budget Reconciliation Act of 1994.

(Sec. 107) Includes standards and procedures for assessing risks posed by the release or threatened release of hazardous substances, pollutants, or contaminants in the list of required elements of the national hazardous substance response plan.

(Sec. 114) Requires the Agency for Toxic Substances and Disease Registry (ATSDR) Administrator to develop and distribute educational materials on human health effects of hazardous substances to the public.

(Sec. 115) Authorizes the ATSDR Administrator to provide grant or contract assistance to individuals who may be affected by releases or threatened releases when: (1) a public health assessment or related health activity is conducted at a facility on the NPL; or (2) a release is being evaluated for inclusion on the NPL.

Title II: State Roles - Authorizes States to apply to the Administrator to carry out response actions and enforcement activities at all facilities listed or proposed for listing on the NPL. Makes this authority inapplicable with respect to Federal facilities listed on the NPL if an interagency agreement for such a facility has been entered into. Grants a State such authority if it possesses the legal authority, technical capability, and resources necessary to conduct response actions in a manner consistent with this Act. Makes such States eligible for response action financing from the Hazardous Substance Superfund (Superfund). Requires States to pay 15 percent of the costs of all response actions and program support or other costs for which the State receives funds from Superfund. Makes such cost-sharing requirement inapplicable to Indian tribes.

(Sec. 201) Authorizes a State to select a response action that achieves a level of cleanup that is more stringent than required if it agrees to pay for the incremental increase in response cost attributable to achieving the more stringent level.

Provides for the retention of the President's authority to take response actions at facilities listed or proposed for listing on the NPL that are not being addressed by States.

(Sec. 206) Provides for public notice and comment before a facility is to be listed on the NPL. Authorizes persons to request a facility to be listed on, or removed from, the NPL.

Title III: Voluntary Response - Directs the Administrator to establish a program to provide assistance to the States to establish and expand voluntary response programs. Makes this title applicable to facilities at which a release or threat of release of a hazardous substance, pollutant, or contaminant has occurred. Excludes certain facilities.

(Sec. 303) Requires the Administrator to establish a program to provide assistance to municipalities to conduct site characterizations for facilities at which voluntary response actions are being conducted or proposed.

Title IV: Liability and Allocation - Authorizes the President to issue administrative subpoenas to require the attendance and testimony of witnesses and production of information regarding response actions. Revises confidentiality requirements with respect to such information.

(Sec. 403) Absolves of liability for response actions a person who does not impede a response action or natural resource restoration to the extent liability is based solely on: (1) arrangement, transportation, or acceptance provisions relating to the disposal or treatment of hazardous substances and such activities involved fewer than 500 pounds of municipal solid waste (MSW) or sewage sludge or such amount as the Administrator may determine; (2) such provisions and such activities involved fewer than ten pounds or liters of materials containing hazardous substances, pollutants, or contaminants or such amount as the Administrator may determine; (3) ownership or operation of a vessel or facility and the person is a bona fide prospective purchaser of the facility; (4) ownership by a Federal agency and activities that resulted in a release occurred prior to 1976, the activities were pursuant to a statutory authority, the agency did not cause or contribute to the release, and there are other persons who are potentially liable and fully capable of performing or financing the response action; or (5) ownership by a Federal, State, or local entity of a road or other right-of-way over which hazardous substances are transported or on the granting of a license or a permit to conduct business.

Makes persons who are solely liable under arrangement, transportation, or acceptance provisions regarding disposal or treatment of hazardous substances liable for no more than ten percent of total response costs if such activities only involved MSW or sewage sludge. Applies such limitation only if: (1) acts or omissions giving rise to liability occurred before the date 36 months after enactment of this Act or the person asserting the limitation participates in a qualified household hazardous waste collection program; and (2) the disposal did not occur on lands owned by the United States or on tribal land.

Grants the United States a lien upon a facility for unrecovered response costs that inure to the benefit of a potential purchaser.

Confers the right of contribution protection on a Federal agency when such agency resolves its share of liability, including liability for all penalties and fines.

Applies State laws respecting liability for releases at non-Federal facilities to Federal agencies when such facilities are referred to a State pursuant to this Act or are part of a State-authorized program.

Bars immunity for Federal employees from processes or sanctions of State or Federal courts with respect to enforcement of this Act. Entitles the United States to remove any action filed in State court against a Federal agency or employee to the appropriate Federal district court. Absolves Federal employees of personal liability for civil or administrative penalties for acts or omissions within the scope of official duties.

(Sec. 404) Makes persons liable under CERCLA liable for other necessary costs of response incurred by any other person, other than the United States, a State, or an Indian tribe (currently, any other person).

(Sec. 405) Authorizes adversely affected persons (currently, interested persons) to file petitions for the review of regulations promulgated under CERCLA.

Revises contribution provisions to require an action by a potentially responsible party (PRP) against another PRP for recovery of any response costs or damages to be commenced within the later of: (1) three years after completion of a removal action or within six years after initiation of physical on-site construction of the remedial action; or (2) three years after the date of judgment in any action for recovery or the date of any administrative order or judicial settlement for recovery of costs or damages.

(Sec. 406) Limits the right to seek contribution from other potentially liable parties where: (1) the person asserting the right has waived such rights in a settlement; (2) the person from whom the contribution is sought is liable solely under provisions regarding arrangement or transportation of hazardous substances for treatment or disposal and contributed fewer than ten pounds or liters of material containing hazardous substances or such amount as the Administrator may determine; or (3) the person from whom the contribution is sought has entered into a final settlement with the United States.

Makes any person who commences a contribution action against a person who is not liable pursuant to limitations set forth in this Act or is protected from suits liable to the person against whom the claim is brought for reasonable costs of defending against the claim.

Provides that a person who has resolved liability to a State in an administrative or judicially approved settlement shall not be liable for claims to persons other than the United States regarding response costs for damages addressed in the settlement. Provides the same protection for persons who have resolved liability to the United States. Includes protection against all claims that may be asserted against the settling party for recovery of costs or damages paid by another person if addressed in the settlement, except claims based on contractual indemnification.

(Sec. 408) Removes provisions regarding guidelines for preliminary allocations of responsibility.

Requires (currently, authorizes) the President to offer PRPs (currently, any person) who enter into settlement agreements a final covenant not to sue concerning liability to the United States for response actions or costs, provided that: (1) the settling party agrees to perform a final remedial action for the release that is the subject of the settlement; (2) the agreement has been reached prior to the commencement of litigation against the settling party; (3) the settling party waives all contribution rights against other PRPs at the facility; and (4) the settling party pays a premium that compensates for the risks of remedy failure, unanticipated increases in the cost of any uncompleted action (unless the party is performing the action), and the U.S. litigation risk with respect to persons who have not resolved liability to the United States unless the settlement covers 100 percent of U.S. response costs.

Authorizes the President, for all other settlements, to provide any person with a covenant not to sue concerning any liability to the United States if the covenant not to sue is in the public interest.

Adds the following to the list of conditions that a PRP must meet in order to be eligible for an expedited settlement: (1) liability must be based solely on provisions regarding arrangement, transportation, or acceptance of MSW or sewage sludge for treatment or disposal; and (2) the PRP must be a small business or a municipality that has demonstrated a limited ability to pay response costs.

(Sec. 409) Requires the President to initiate a specified allocation of liability process for remedial actions at multi-party facilities.

Establishes a moratorium on the commencement of liability actions regarding response actions for which allocations must be performed or have been initiated.

Sets forth allocation procedures, including notice to PRPs and selection of an allocator.

Requires the allocator, if the allocation parties do not agree to a negotiated allocation of shares, to prepare a report with a nonbinding, equitable allocation of percentage shares for the facility based on factors including: (1) the amount of hazardous substances contributed by each party; (2) the degree of toxicity and mobility of substances contributed by each party; (3) the degree of involvement of each party in the generation, transportation, treatment, storage, or disposal of the hazardous substance; (4) the degree of care exercised by each party with respect to the substance; and (5) the cooperation of each party in contributing to the response action and providing information.

Authorizes the allocator to determine that a percentage share is specifically attributable to an orphan share. Limits orphan shares to specified cases, including shares attributable to identified but insolvent responsible parties who are not affiliated with another allocation party. Requires shares that cannot be attributed to any party to be allocated among the allocation parties. Provides for reimbursements from Superfund to eligible parties for costs attributable to orphan shares.

Authorizes the Administrator and the Attorney General to determine not to settle on the basis of the allocator's allocation.

Requires settlements based on allocated shares to include: (1) a waiver of contribution rights against all PRPs for the response action; (2) covenants not to sue and provisions regarding performance of such actions; (3) a premium that compensates for the U.S. litigation risk with respect to PRPs who have not resolved liability to the United States, except in cases where the settlement covers 100 percent of costs; (4) contribution protection; and (5) provisions for reimbursement from Superfund for any response costs incurred in excess of the allocated share.

Authorizes the United States to commence a liability action against any person who has not resolved liability following allocation on or after 60 days following issuance of the allocator's report. Makes PRPs liable for the unrecovered response costs in such actions. Requires the Administrator and the Attorney General to issue guidelines to ensure that relief sought against de minimis parties under principles of joint and several liability will not be grossly disproportionate to their contribution to the facility.

Restricts the admissibility in court of the allocator's report with respect to claims brought by or against the United States, except in its capacity as a nonsettling PRP or for the determination of liability.

Title V: Remedy Selection and Cleanup Standards - Revises provisions regarding the degree of cleanup required under remedial actions. Directs the Administrator to promulgate national goals to be applied at all facilities and national generic cleanup levels for specific hazardous substances, pollutants, or contaminants that: (1) reflect reasonably anticipated future land uses; (2) reflect other variables which can be easily measured at a facility and whose effects are scientifically well-understood to vary on a site-specific basis; and (3) represent concentration levels below which a response action is not required. Authorizes the Administrator to rely on a site-specific risk assessment to determine the proper level of cleanup if a national generic cleanup level has not been developed or to account for particular characteristics of a facility.

(Sec. 502) Requires remedial actions to comply with substantive requirements of Federal and State laws and standards. Authorizes the President to select a remedial action that does not attain a level of control equivalent to such standards under certain conditions.

(Sec. 503) Revises general rules for remedial actions. Requires the President to establish cost-effective generic remedies for categories of facilities.

(Sec. 504) Permits a State to enforce only those Federal and State requirements to which the Administrator has determined the remedial action is required to conform.

(Sec. 505) Removes a condition on the President's authority to acquire property needed to conduct a response action that requires the State in which the property is located to agree to accept transfer of the property when the action is completed.

(Sec. 506) Alters the criteria for the continuance of obligations for removal actions to provide that actions shall not continue after $6 million (currently, $2 million) has been obligated or three years (currently, 12 months) has elapsed from the date of initial response to a release or threatened release of hazardous substances.

Title VI: Miscellaneous - Exempts a Federal agency from actions required for Federal facilities under CERCLA, with the exception of certain reporting requirements, if the agency owned or operated a facility over which it exercised no regulatory or other control over activities that resulted in a release of a hazardous substance if: (1) no Federal agency was the primary or sole source or cause of such release; (2) the activities resulting in the release were pursuant to statutory authority and occurred prior to 1976; and (3) the persons primarily responsible for the release are financially viable and capable of performing or financing the response action.

(Sec. 604) Authorizes the Administrator, in order to achieve required levels of response, to reimburse up to 50 percent of response costs incurred by a potentially liable party that employs an alternative or innovative technology that fails to achieve the required level.

(Sec. 605) Includes a trust or estate within the definition of "owner or operator" for purposes of determining liability under CERCLA.

Excludes from such definition: (1) a person who holds title to a vessel or facility solely in the capacity as fiduciary, provided that the person does not participate in management operations that result in a release of hazardous substances and complies with other requirements; or (2) the United States, a Federal agency, or a conservator or receiver appointed by a Federal agency which acquired ownership of a facility or vessel in connection with receivership, conservatorship, forfeiture, or seizure authority or pursuant to an Act of the Congress provided such entity does not participate in operations that result in a release.

Title VII: Funding - Extends the authorization of appropriations to carry out specified Superfund authorities through FY 1999.

Title VIII: Environmental Insurance Resolution Fund - Environmental Insurance Resolution and Equity Act of 1994 - Establishes the Environmental Insurance Resolution Fund to provide for the resolution of disputes between certain PRPs and their insurers. Describes eligible persons, costs, and sites.

(Sec. 802) Directs eligible persons that accept Fund resolutions to waive existing and future claims against an insurer for eligible costs.

Requires the Fund to make pre- and post-resolution payments to eligible persons who accept a resolution.

Makes any eligible person who litigates a claim and obtains a judgment that is less favorable than the resolution offered by the Fund liable to the insurer for 20 percent of reasonable legal fees incurred in the litigation.

Provides for Fund reimbursements of certain costs incurred by insurers in cases where a person rejected a resolution and obtained a final judgment against an insurer.

Deems payments made by the Fund pursuant to a resolution offer to be payments made by an insurer.

(Sec. 804) Provides that this title acts as a stay of all pending litigation regarding claims for indemnity or arising from insurance coverage for eligible costs. Bars stays of litigation after May 31, 2000.

(Sec. 805) Terminates the Fund's authority to: (1) accept requests for resolution after FY 1999; and (2) offer resolutions after March 31, 2000.

Title IX: Environmental Insurance Resolution Taxes and Trust Fund; 5-Year Extension of Hazardous Substance Superfund - Subtitle A: Environmental Insurance Resolution Taxes and Trust Fund - Amends provisions of the Internal Revenue Code relating to environmental taxes to establish environmental insurance resolution taxes. Imposes a tax on each assessable person engaged in any trade or business that is equal to: (1) such person's adjusted base-period commercial direct premiums multiplied by the applicable direct funding rate; and (2) such person's adjusted base-period commercial reinsurance premiums multiplied by the applicable reinsurance funding rate.

(Sec. 901) Sets the exemption amount for any person at $50 million. Treats participants in joint underwriting operations of insurance or reinsurance and those treated as single employers as one person and allocates the exemption amount between participants.

Imposes a tax on a policy of casualty insurance against hazards, risks, losses, or liabilities in the United States or related policies of reinsurance on which premiums are written by foreign persons. Requires such tax to be equal to .50 percent of the maximum limit of liability of such persons under such policies. Sets forth conditions under which foreign persons are exempt from such tax (including cases where foreign persons may be taxed as assessable persons).

Imposes a tax (on current-year premiums) equal to the direct premiums written under specified insurance policies issued against hazards, risks, losses, or liabilities within the United States multiplied by the applicable funding rate. Exempts policies related to directors and officers liability insurance, professional liability insurance, and fire insurance on residential or farm owner-occupied housing units.

Sets the exemption amount for such tax at $5 million.

Establishes a special withholding rule for premiums issued by foreign persons unless the income from the premiums is connected with a U.S. trade or business and is not exempt from income tax pursuant to a treaty.

Imposes assessments on insurers resolving claims with the Environmental Insurance Resolution Trust Fund. Requires such assessments to be in an amount equal to an insurer's Fund-certified percentages of the direct insurance and reinsurance limits.

Provides that such assessments are excise taxes and shall be imposed and collected in the same manner as other excise taxes.

(Sec. 902) Establishes the Environmental Insurance Resolution Trust Fund to be composed of environmental insurance resolution taxes and amounts in the Environmental Insurance Resolution Fund established under title VIII of this Act. Makes the Trust Fund available to carry out title VIII.

(Sec. 903) Exempts the Environmental Insurance Resolution Fund from income tax.

Subtitle B: 5-Year Extension of Hazardous Substance Superfund - Provides for a five-year extension of Superfund.

Subtitle C: Report by Environmental Protection Agency - Directs the Administrator to report annually to the Congress on the effectiveness of this Act's liability and enforcement reforms.