U.S.
GOVERNMENT > The Three Branches > Legislative Branch > Superfund (The Comprehensive Environmental Response, Compensation and Liability Act – CERCLA), 1980
The Comprehensive Environmental Response, Compensation and Liability Act - CERCLA
42 USC CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION, AND LIABILITY 01/19/04
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
Sec.
9601. Definitions.
9602. Designation of additional hazardous substances and
establishment of reportable released quantities;
regulations.
9603. Notification requirements respecting released
substances.
(a) Notice to National Response Center upon release
from vessel or offshore or onshore facility by
person in charge; conveyance of notice by
Center.
(b) Penalties for failure to notify; use of notice
or information pursuant to notice in criminal
case.
(c) Notice to Administrator of EPA of existence of
storage, etc., facility by owner or operator;
exception; time, manner, and form of notice;
penalties for failure to notify; use of notice
or information pursuant to notice in criminal
case.
(d) Recordkeeping requirements; promulgation of
rules and regulations by Administrator of EPA;
penalties for violations; waiver of retention
requirements.
(e) Applicability to registered pesticide product.
(f) Exemptions from notice and penalty provisions
for substances reported under other Federal
law or is in continuous release, etc.
9604. Response authorities.
(a) Removal and other remedial action by President;
applicability of national contingency plan;
response by potentially responsible parties;
public health threats; limitations on
response; exception.
(b) Investigations, monitoring, coordination, etc.,
by President.
(c) Criteria for continuance of obligations from
Fund over specified amount for response
actions; consultation by President with
affected States; contracts or cooperative
agreements by States with President prior to
remedial actions; cost-sharing agreements;
selection by President of remedial actions;
State credits: granting of credit, expenses
before listing or agreement, response actions
between 1978 and 1980, State expenses after
December 11, 1980, in excess of 10 percent of
costs, item-by-item approval, use of credits;
operation and maintenance; limitation on
source of funds for O&M; recontracting;
siting.
(d) Contracts or cooperative agreements by
President with States or political
subdivisions or Indian tribes; State
applications, terms and conditions;
reimbursements; cost-sharing provisions;
enforcement requirements and procedures.
(e) Information gathering and access.
(f) Contracts for response actions; compliance with
Federal health and safety standards.
(g) Rates for wages and labor standards applicable
to covered work.
(h) Emergency procurement powers; exercise by
President.
(i) Agency for Toxic Substances and Disease
Registry; establishment, functions, etc.
(j) Acquisition of property.
(k) Brownfields revitalization funding.
9605. National contingency plan.
(a) Revision and republication.
(b) Revision of plan.
(c) Hazard ranking system.
(d) Petition for assessment of release.
(e) Releases from earlier sites.
(f) Minority contractors.
(g) Special study wastes.
(h) NPL deferral.
9606. Abatement actions.
(a) Maintenance, jurisdiction, etc.
(b) Fines; reimbursement.
(c) Guidelines for using imminent hazard,
enforcement, and emergency response
authorities; promulgation by Administrator of
EPA, scope, etc.
9607. Liability.
(a) Covered persons; scope; recoverable costs and
damages; interest rate; "comparable maturity"
date.
(b) Defenses.
(c) Determination of amounts.
(d) Rendering care or advice.
(e) Indemnification, hold harmless, etc.,
agreements or conveyances; subrogation rights.
(f) Natural resources liability; designation of
public trustees of natural resources.
(g) Federal agencies.
(h) Owner or operator of vessel.
(i) Application of a registered pesticide product.
(j) Obligations or liability pursuant to federally
permitted release.
(k) Transfer to, and assumption by, Post-Closure
Liability Fund of liability of owner or
operator of hazardous waste disposal facility
in receipt of permit under applicable solid
waste disposal law; time, criteria applicable,
procedures, etc.; monitoring costs; reports.
(l) Federal lien.
(m) Maritime lien.
(n) Liability of fiduciaries.
(o) De micromis exemption.
(p) Municipal solid waste exemption.
(q) Contiguous properties.
(r) Prospective purchaser and windfall lien.
9608. Financial responsibility.
(a) Establishment and maintenance by owner or
operator of vessel; amount; failure to obtain
certification of compliance.
(b) Establishment and maintenance by owner or
operator of production, etc., facilities;
amount; adjustment; consolidated form of
responsibility; coverage of motor carriers.
(c) Direct Action.
(d) Limitation of guarantor liability.
9609. Civil penalties and awards.
(a) Class I administrative penalty.
(b) Class II administrative penalty.
(c) Judicial assessment.
(d) Awards.
(e) Procurement procedures.
(f) Savings clause.
9610. Employee protection.
(a) Activities of employee subject to protection.
(b) Administrative grievance procedure in cases of
alleged violations.
(c) Assessment of costs and expenses against
violator subsequent to issuance of order of
abatement.
(d) Defenses.
(e) Presidential evaluations of potential loss of
shifts of employment resulting from
administration or enforcement of provisions;
investigations; procedures applicable, etc.
9611. Uses of Fund.
(a) In general.
(b) Additional authorized purposes.
(c) Peripheral matters and limitations.
(d) Additional limitations.
(e) Funding requirements respecting moneys in Fund;
limitation on certain claims; Fund use outside
Federal property boundaries.
(f) Obligation of moneys by Federal officials;
obligation of moneys or settlement of claims
by State officials or Indian tribe.
(g) Notice to potential injured parties by owner
and operator of vessel or facility causing
release of substance; rules and regulations.
(h) Repealed.
(i) Restoration, etc., of natural resources.
(j) Use of Post-closure Liability Fund.
(k) Inspector General.
(l) Foreign claimants.
(m) Agency for Toxic Substances and Disease
Registry.
(n) Limitations on research, development, and
demonstration program.
(o) Notification procedures for limitations on
certain payments.
(p) General revenue share of Superfund.
9612. Claims procedure.
(a) Claims against Fund for response costs.
(b) Forms and procedures applicable.
(c) Subrogation rights; actions maintainable.
(d) Statute of limitations.
(e) Other statutory or common law claims not
waived, etc.
(f) Double recovery prohibited.
9613. Civil proceedings.
(a) Review of regulations in Circuit Court of
Appeals of the United States for the District
of Columbia.
(b) Jurisdiction; venue.
(c) Controversies or other matters resulting from
tax collection or tax regulation review.
(d) Litigation commenced prior to December 11,
1980.
(e) Nationwide service of process.
(f) Contribution.
(g) Period in which action may be brought.
(h) Timing of review.
(i) Intervention.
(j) Judicial review.
(k) Administrative record and participation
procedures.
(l) Notice of actions.
9614. Relationship to other law.
(a) Additional State liability or requirements with
respect to release of substances within State.
(b) Recovery under other State or Federal law of
compensation for removal costs or damages, or
payment of claims.
(c) Recycled oil.
(d) Financial responsibility of owner or operator
of vessel or facility under State or local
law, rule, or regulation.
9615. Presidential delegation and assignment of duties or
powers and promulgation of regulations.
9616. Schedules.
(a) Assessment and listing of facilities.
(b) Evaluation.
(c) Explanations.
(d) Commencement of RI/FS.
(e) Commencement of remedial action.
9617. Public participation.
(a) Proposed plan.
(b) Final plan.
(c) Explanation of differences.
(d) Publication.
(e) Grants for technical assistance.
9618. High priority for drinking water supplies.
9619. Response action contractors.
(a) Liability of response action contractors.
(b) Savings provisions.
(c) Indemnification.
(d) Exception.
(e) Definitions.
(f) Competition.
(g) Surety bonds.
9620. Federal facilities.
(a) Application of chapter to Federal Government.
(b) Notice.
(c) Federal Agency Hazardous Waste Compliance
Docket.
(d) Assessment and evaluation.
(e) Required action by department.
(f) State and local participation.
(g) Transfer of authorities.
(h) Property transferred by Federal agencies.
(i) Obligations under Solid Waste Disposal Act.
(j) National security.
9621. Cleanup standards.
(a) Selection of remedial action.
(b) General rules.
(c) Review.
(d) Degree of cleanup.
(e) Permits and enforcement.
(f) State involvement.
9622. Settlements.
(a) Authority to enter into agreements.
(b) Agreements with potentially responsible
parties.
(c) Effect of agreement.
(d) Enforcement.
(e) Special notice procedures.
(f) Covenant not to sue.
(g) De minimis settlements.
(h) Cost recovery settlement authority.
(i) Settlement procedures.
(j) Natural resources.
(k) Section not applicable to vessels.
(l) Civil penalties.
(m) Applicability of general principles of law.
9623. Reimbursement to local governments.
(a) Application.
(b) Reimbursement.
(c) Amount.
(d) Procedure.
9624. Methane recovery.
(a) In general.
(b) Exceptions.
9625. Section 6921(b)(3)(A)(i) waste.
(a) Revision of hazard ranking system.
(b) Inclusion prohibited.
9626. Indian tribes.
(a) Treatment generally.
(b) Community relocation.
(c) Study.
(d) Limitation.
9627. Recycling transactions.
(a) Liability clarification.
(b) Recyclable material defined.
(c) Transactions involving scrap paper, plastic,
glass, textiles, or rubber.
(d) Transactions involving scrap metal.
(e) Transactions involving batteries.
(f) Exclusions.
(g) Effect on other liability.
(h) Regulations.
(i) Effect on pending or concluded actions.
(j) Liability for attorney's fees for certain
actions.
(k) Relationship to liability under other laws.
(l) Limitation on statutory construction.
9628. State response programs.
(a) Assistance to States.
(b) Enforcement in cases of a release subject to
State program.
(c) Effect on Federal laws.
SUBCHAPTER II - HAZARDOUS SUBSTANCE RESPONSE REVENUE
PART A - HAZARDOUS SUBSTANCE RESPONSE TRUST FUND
9631 to 9633. Repealed.
PART B - POST-CLOSURE LIABILITY TRUST FUND
9641. Repealed.
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
9651. Reports and studies.
(a) Implementation experiences; identification and
disposal of waste.
(b) Private insurance protection.
(c) Regulations respecting assessment of damages to
natural resources.
(d) Issues, alternatives, and policy considerations
involving selection of locations for waste
treatment, storage, and disposal facilities.
(e) Adequacy of existing common law and statutory
remedies.
(f) Modification of national contingency plan.
(g) Insurability study.
9652. Effective dates; savings provisions.
9653. Repealed.
9654. Applicability of Federal water pollution control
funding, etc., provisions.
9655. Legislative veto of rule or regulation.
(a) Transmission to Congress upon promulgation or
repromulgation of rule or regulation;
disapproval procedures.
(b) Approval; effective dates.
(c) Sessions of Congress as applicable.
(d) Congressional inaction on, or rejection of,
resolution of disapproval.
9656. Transportation of hazardous substances; listing as
hazardous material; liability for release.
9657. Separability; contribution.
9658. Actions under State law for damages from exposure to
hazardous substances.
(a) State statutes of limitations for hazardous
substance cases.
(b) Definitions.
9659. Citizens suits.
(a) Authority to bring civil actions.
(b) Venue.
(c) Relief.
(d) Rules applicable to subsection (a)(1) actions.
(e) Rules applicable to subsection (a)(2) actions.
(f) Costs.
(g) Intervention.
(h) Other rights.
(i) Definitions.
9660. Research, development, and demonstration.
(a) Hazardous substance research and training.
(b) Alternative or innovative treatment technology
research and demonstration program.
(c) Hazardous substance research.
(d) University hazardous substance research
centers.
(e) Report to Congress.
(f) Saving provision.
(g) Small business participation.
9660a. Grant program.
9661. Love Canal property acquisition.
(a) Acquisition of property in emergency
declaration area.
(b) Procedures for acquisition.
(c) State ownership.
(d) Maintenance of property.
(e) Habitability and land use study.
(f) Funding.
(g) Response.
(h) Definitions.
9662. Limitation on contract and borrowing authority.
SUBCHAPTER IV - POLLUTION INSURANCE
9671. Definitions.
9672. State laws; scope of subchapter.
(a) State laws.
(b) Scope of subchapter.
9673. Risk retention groups.
(a) Exemption.
(b) Exceptions.
(c) Application of exemptions.
(d) Agents or brokers.
9674. Purchasing groups.
(a) Exemption.
(b) Application of exemptions.
(c) Agents or brokers.
9675. Applicability of securities laws.
(a) Ownership interests.
(b) Investment Company Act.
(c) Blue sky law.
-SECREF-
CHAPTER REFERRED TO IN OTHER SECTIONS
This chapter is referred to in sections 300h-6, 300h-7, 6972,
11004 of this title; title 10 sections 2700, 2701, 2703; title 16
sections 410yy-3, 426n, 460lll, 460lll-46, 545b; title 26 sections
9507, 9508; title 30 section 1240a; title 33 sections 1272, 1321,
2701; title 43 sections 869-2, 1474b-1.
-End-
-CITE-
42 USC SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES,
LIABILITY, COMPENSATION 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-SECREF-
SUBCHAPTER REFERRED TO IN OTHER SECTIONS
This subchapter is referred to in sections 9655, 9658, 9659 of
this title; title 26 section 9507.
-End-
-CITE-
42 USC Sec. 9601 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9601. Definitions
-STATUTE-
For purpose of this subchapter -
(1) The term "act of God" means an unanticipated grave natural
disaster or other natural phenomenon of an exceptional,
inevitable, and irresistible character, the effects of which
could not have been prevented or avoided by the exercise of due
care or foresight.
(2) The term "Administrator" means the Administrator of the
United States Environmental Protection Agency.
(3) The term "barrel" means forty-two United States gallons at
sixty degrees Fahrenheit.
(4) The term "claim" means a demand in writing for a sum
certain.
(5) The term "claimant" means any person who presents a claim
for compensation under this chapter.
(6) The term "damages" means damages for injury or loss of
natural resources as set forth in section 9607(a) or 9611(b) of
this title.
(7) The term "drinking water supply" means any raw or finished
water source that is or may be used by a public water system (as
defined in the Safe Drinking Water Act [42 U.S.C. 300f et seq.])
or as drinking water by one or more individuals.
(8) The term "environment" means (A) the navigable waters, the
waters of the contiguous zone, and the ocean waters of which the
natural resources are under the exclusive management authority of
the United States under the Magnuson-Stevens Fishery Conservation
and Management Act [16 U.S.C. 1801 et seq.], and (B) any other
surface water, ground water, drinking water supply, land surface
or subsurface strata, or ambient air within the United States or
under the jurisdiction of the United States.
(9) The term "facility" means (A) any building, structure,
installation, equipment, pipe or pipeline (including any pipe
into a sewer or publicly owned treatment works), well, pit, pond,
lagoon, impoundment, ditch, landfill, storage container, motor
vehicle, rolling stock, or aircraft, or (B) any site or area
where a hazardous substance has been deposited, stored, disposed
of, or placed, or otherwise come to be located; but does not
include any consumer product in consumer use or any vessel.
(10) The term "federally permitted release" means (A)
discharges in compliance with a permit under section 402 of the
Federal Water Pollution Control Act [33 U.S.C. 1342], (B)
discharges resulting from circumstances identified and reviewed
and made part of the public record with respect to a permit
issued or modified under section 402 of the Federal Water
Pollution Control Act and subject to a condition of such permit,
(C) continuous or anticipated intermittent discharges from a
point source, identified in a permit or permit application under
section 402 of the Federal Water Pollution Control Act, which are
caused by events occurring within the scope of relevant operating
or treatment systems, (D) discharges in compliance with a legally
enforceable permit under section 404 of the Federal Water
Pollution Control Act [33 U.S.C. 1344], (E) releases in
compliance with a legally enforceable final permit issued
pursuant to section 3005(a) through (d) of the Solid Waste
Disposal Act [42 U.S.C. 6925(a)-(d)] from a hazardous waste
treatment, storage, or disposal facility when such permit
specifically identifies the hazardous substances and makes such
substances subject to a standard of practice, control procedure
or bioassay limitation or condition, or other control on the
hazardous substances in such releases, (F) any release in
compliance with a legally enforceable permit issued under section
1412 of title 33 of )1(! section 1413 of title 33, (G) any
injection of fluids authorized under Federal underground
injection control programs or State programs submitted for
Federal approval (and not disapproved by the Administrator of the
Environmental Protection Agency) pursuant to part C of the Safe
Drinking Water Act [42 U.S.C. 300h et seq.], (H) any emission
into the air subject to a permit or control regulation under
section 111 [42 U.S.C. 7411], section 112 [42 U.S.C. 7412], title
I part C [42 U.S.C. 7470 et seq.], title I part D [42 U.S.C. 7501
et seq.], or State implementation plans submitted in accordance
with section 110 of the Clean Air Act [42 U.S.C. 7410] (and not
disapproved by the Administrator of the Environmental Protection
Agency), including any schedule or waiver granted, promulgated,
or approved under these sections, (I) any injection of fluids or
other materials authorized under applicable State law (i) for the
purpose of stimulating or treating wells for the production of
crude oil, natural gas, or water, (ii) for the purpose of
secondary, tertiary, or other enhanced recovery of crude oil or
natural gas, or (iii) which are brought to the surface in
conjunction with the production of crude oil or natural gas and
which are reinjected, (J) the introduction of any pollutant into
a publicly owned treatment works when such pollutant is specified
in and in compliance with applicable pretreatment standards of
section 307(b) or (c) of the Clean Water Act [33 U.S.C. 1317(b),
(c)] and enforceable requirements in a pretreatment program
submitted by a State or municipality for Federal approval under
section 402 of such Act [33 U.S.C. 1342], and (K) any release of
source, special nuclear, or byproduct material, as those terms
are defined in the Atomic Energy Act of 1954 [42 U.S.C. 2011 et
seq.], in compliance with a legally enforceable license, permit,
regulation, or order issued pursuant to the Atomic Energy Act of
1954.
(11) The term "Fund" or "Trust Fund" means the Hazardous
Substance Superfund established by section 9507 of title 26.
(12) The term "ground water" means water in a saturated zone or
stratum beneath the surface of land or water.
(13) The term "guarantor" means any person, other than the
owner or operator, who provides evidence of financial
responsibility for an owner or operator under this chapter.
(14) The term "hazardous substance" means (A) any substance
designated pursuant to section 311(b)(2)(A) of the Federal Water
Pollution Control Act [33 U.S.C. 1321(b)(2)(A)], (B) any element,
compound, mixture, solution, or substance designated pursuant to
section 9602 of this title, (C) any hazardous waste having the
characteristics identified under or listed pursuant to section
3001 of the Solid Waste Disposal Act [42 U.S.C. 6921] (but not
including any waste the regulation of which under the Solid Waste
Disposal Act [42 U.S.C. 6901 et seq.] has been suspended by Act
of Congress), (D) any toxic pollutant listed under section 307(a)
of the Federal Water Pollution Control Act [33 U.S.C. 1317(a)],
(E) any hazardous air pollutant listed under section 112 of the
Clean Air Act [42 U.S.C. 7412], and (F) any imminently hazardous
chemical substance or mixture with respect to which the
Administrator has taken action pursuant to section 7 of the Toxic
Substances Control Act [15 U.S.C. 2606]. The term does not
include petroleum, including crude oil or any fraction thereof
which is not otherwise specifically listed or designated as a
hazardous substance under subparagraphs (A) through (F) of this
paragraph, and the term does not include natural gas, natural gas
liquids, liquefied natural gas, or synthetic gas usable for fuel
(or mixtures of natural gas and such synthetic gas).
(15) The term "navigable waters" or "navigable waters of the
United States" means the waters of the United States, including
the territorial seas.
(16) The term "natural resources" means land, fish, wildlife,
biota, air, water, ground water, drinking water supplies, and
other such resources belonging to, managed by, held in trust by,
appertaining to, or otherwise controlled by the United States
(including the resources of the fishery conservation zone
established by the Magnuson-Stevens Fishery Conservation and
Management Act [16 U.S.C. 1801 et seq.]), any State or local
government, any foreign government, any Indian tribe, or, if such
resources are subject to a trust restriction on alienation, any
member of an Indian tribe.
(17) The term "offshore facility" means any facility of any
kind located in, on, or under, any of the navigable waters of the
United States, and any facility of any kind which is subject to
the jurisdiction of the United States and is located in, on, or
under any other waters, other than a vessel or a public vessel.
(18) The term "onshore facility" means any facility (including,
but not limited to, motor vehicles and rolling stock) of any kind
located in, on, or under, any land or nonnavigable waters within
the United States.
(19) The term "otherwise subject to the jurisdiction of the
United States" means subject to the jurisdiction of the United
States by virtue of United States citizenship, United States
vessel documentation or numbering, or as provided by
international agreement to which the United States is a party.
(20)(A) The term "owner or operator" means (i) in the case of a
vessel, any person owning, operating, or chartering by demise,
such vessel, (ii) in the case of an onshore facility or an
offshore facility, any person owning or operating such facility,
and (iii) in the case of any facility, title or control of which
was conveyed due to bankruptcy, foreclosure, tax delinquency,
abandonment, or similar means to a unit of State or local
government, any person who owned, operated, or otherwise
controlled activities at such facility immediately beforehand.
Such term does not include a person, who, without participating
in the management of a vessel or facility, holds indicia of
ownership primarily to protect his security interest in the
vessel or facility.
(B) In the case of a hazardous substance which has been
accepted for transportation by a common or contract carrier and
except as provided in section 9607(a)(3) or (4) of this title,
(i) the term "owner or operator" shall mean such common carrier
or other bona fide for hire carrier acting as an independent
contractor during such transportation, (ii) the shipper of such
hazardous substance shall not be considered to have caused or
contributed to any release during such transportation which
resulted solely from circumstances or conditions beyond his
control.
(C) In the case of a hazardous substance which has been
delivered by a common or contract carrier to a disposal or
treatment facility and except as provided in section 9607(a)(3)
or (4) of this title, (i) the term "owner or operator" shall not
include such common or contract carrier, and (ii) such common or
contract carrier shall not be considered to have caused or
contributed to any release at such disposal or treatment facility
resulting from circumstances or conditions beyond its control.
(D) The term "owner or operator" does not include a unit of
State or local government which acquired ownership or control
involuntarily through bankruptcy, tax delinquency, abandonment,
or other circumstances in which the government involuntarily
acquires title by virtue of its function as sovereign. The
exclusion provided under this paragraph shall not apply to any
State or local government which has caused or contributed to the
release or threatened release of a hazardous substance from the
facility, and such a State or local government shall be subject
to the provisions of this chapter in the same manner and to the
same extent, both procedurally and substantively, as any
nongovernmental entity, including liability under section 9607 of
this title.
(E) Exclusion of lenders not participants in management. -
(i) Indicia of ownership to protect security. - The term
"owner or operator" does not include a person that is a lender
that, without participating in the management of a vessel or
facility, holds indicia of ownership primarily to protect the
security interest of the person in the vessel or facility.
(ii) Foreclosure. - The term "owner or operator" does not
include a person that is a lender that did not participate in
management of a vessel or facility prior to foreclosure,
notwithstanding that the person -
(I) forecloses on the vessel or facility; and
(II) after foreclosure, sells, re-leases (in the case of a
lease finance transaction), or liquidates the vessel or
facility, maintains business activities, winds up operations,
undertakes a response action under section 9607(d)(1) of this
title or under the direction of an on-scene coordinator
appointed under the National Contingency Plan, with respect
to the vessel or facility, or takes any other measure to
preserve, protect, or prepare the vessel or facility prior to
sale or disposition,
if the person seeks to sell, re-lease (in the case of a lease
finance transaction), or otherwise divest the person of the
vessel or facility at the earliest practicable, commercially
reasonable time, on commercially reasonable terms, taking into
account market conditions and legal and regulatory
requirements.
(F) Participation in management. - For purposes of subparagraph
(E) -
(i) the term "participate in management" -
(I) means actually participating in the management or
operational affairs of a vessel or facility; and
(II) does not include merely having the capacity to
influence, or the unexercised right to control, vessel or
facility operations;
(ii) a person that is a lender and that holds indicia of
ownership primarily to protect a security interest in a vessel
or facility shall be considered to participate in management
only if, while the borrower is still in possession of the
vessel or facility encumbered by the security interest, the
person -
(I) exercises decisionmaking control over the environmental
compliance related to the vessel or facility, such that the
person has undertaken responsibility for the hazardous
substance handling or disposal practices related to the
vessel or facility; or
(II) exercises control at a level comparable to that of a
manager of the vessel or facility, such that the person has
assumed or manifested responsibility -
(aa) for the overall management of the vessel or facility
encompassing day-to-day decisionmaking with respect to
environmental compliance; or
(bb) over all or substantially all of the operational
functions (as distinguished from financial or
administrative functions) of the vessel or facility other
than the function of environmental compliance;
(iii) the term "participate in management" does not include
performing an act or failing to act prior to the time at which
a security interest is created in a vessel or facility; and
(iv) the term "participate in management" does not include -
(I) holding a security interest or abandoning or releasing
a security interest;
(II) including in the terms of an extension of credit, or
in a contract or security agreement relating to the
extension, a covenant, warranty, or other term or condition
that relates to environmental compliance;
(III) monitoring or enforcing the terms and conditions of
the extension of credit or security interest;
(IV) monitoring or undertaking 1 or more inspections of the
vessel or facility;
(V) requiring a response action or other lawful means of
addressing the release or threatened release of a hazardous
substance in connection with the vessel or facility prior to,
during, or on the expiration of the term of the extension of
credit;
(VI) providing financial or other advice or counseling in
an effort to mitigate, prevent, or cure default or diminution
in the value of the vessel or facility;
(VII) restructuring, renegotiating, or otherwise agreeing
to alter the terms and conditions of the extension of credit
or security interest, exercising forbearance;
(VIII) exercising other remedies that may be available
under applicable law for the breach of a term or condition of
the extension of credit or security agreement; or
(IX) conducting a response action under section 9607(d) of
this title or under the direction of an on-scene coordinator
appointed under the National Contingency Plan,
if the actions do not rise to the level of participating in
management (within the meaning of clauses (i) and (ii)).
(G) Other terms. - As used in this chapter:
(i) Extension of credit. - The term "extension of credit"
includes a lease finance transaction -
(I) in which the lessor does not initially select the
leased vessel or facility and does not during the lease term
control the daily operations or maintenance of the vessel or
facility; or
(II) that conforms with regulations issued by the
appropriate Federal banking agency or the appropriate State
bank supervisor (as those terms are defined in section 1813
of title 12 )2(! or with regulations issued by the National
Credit Union Administration Board, as appropriate.
(ii) Financial or administrative function. - The term
"financial or administrative function" includes a function such
as that of a credit manager, accounts payable officer, accounts
receivable officer, personnel manager, comptroller, or chief
financial officer, or a similar function.
(iii) Foreclosure; foreclose. - The terms "foreclosure" and
"foreclose" mean, respectively, acquiring, and to acquire, a
vessel or facility through -
(I)(aa) purchase at sale under a judgment or decree, power
of sale, or nonjudicial foreclosure sale;
(bb) a deed in lieu of foreclosure, or similar conveyance
from a trustee; or
(cc) repossession,
if the vessel or facility was security for an extension of
credit previously contracted;
(II) conveyance pursuant to an extension of credit
previously contracted, including the termination of a lease
agreement; or
(III) any other formal or informal manner by which the
person acquires, for subsequent disposition, title to or
possession of a vessel or facility in order to protect the
security interest of the person.
(iv) Lender. - The term "lender" means -
(I) an insured depository institution (as defined in
section 1813 of title 12);
(II) an insured credit union (as defined in section 1752 of
title 12);
(III) a bank or association chartered under the Farm Credit
Act of 1971 (12 U.S.C. 2001 et seq.);
(IV) a leasing or trust company that is an affiliate of an
insured depository institution;
(V) any person (including a successor or assignee of any
such person) that makes a bona fide extension of credit to or
takes or acquires a security interest from a nonaffiliated
person;
(VI) the Federal National Mortgage Association, the Federal
Home Loan Mortgage Corporation, the Federal Agricultural
Mortgage Corporation, or any other entity that in a bona fide
manner buys or sells loans or interests in loans;
(VII) a person that insures or guarantees against a default
in the repayment of an extension of credit, or acts as a
surety with respect to an extension of credit, to a
nonaffiliated person; and
(VIII) a person that provides title insurance and that
acquires a vessel or facility as a result of assignment or
conveyance in the course of underwriting claims and claims
settlement.
(v) Operational function. - The term "operational function"
includes a function such as that of a facility or plant
manager, operations manager, chief operating officer, or chief
executive officer.
(vi) Security interest. - The term "security interest"
includes a right under a mortgage, deed of trust, assignment,
judgment lien, pledge, security agreement, factoring agreement,
or lease and any other right accruing to a person to secure the
repayment of money, the performance of a duty, or any other
obligation by a nonaffiliated person.
(21) The term "person" means an individual, firm, corporation,
association, partnership, consortium, joint venture, commercial
entity, United States Government, State, municipality,
commission, political subdivision of a State, or any interstate
body.
(22) The term "release" means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment (including
the abandonment or discarding of barrels, containers, and other
closed receptacles containing any hazardous substance or
pollutant or contaminant), but excludes (A) any release which
results in exposure to persons solely within a workplace, with
respect to a claim which such persons may assert against the
employer of such persons, (B) emissions from the engine exhaust
of a motor vehicle, rolling stock, aircraft, vessel, or pipeline
pumping station engine, (C) release of source, byproduct, or
special nuclear material from a nuclear incident, as those terms
are defined in the Atomic Energy Act of 1954 [42 U.S.C. 2011 et
seq.], if such release is subject to requirements with respect to
financial protection established by the Nuclear Regulatory
Commission under section 170 of such Act [42 U.S.C. 2210], or,
for the purposes of section 9604 of this title or any other
response action, any release of source byproduct, or special
nuclear material from any processing site designated under
section 7912(a)(1) or 7942(a) of this title, and (D) the normal
application of fertilizer.
(23) The terms "remove" or "removal" means )3(! the cleanup or
removal of released hazardous substances from the environment,
such actions as may be necessary taken in the event of the threat
of release of hazardous substances into the environment, such
actions as may be necessary to monitor, assess, and evaluate the
release or threat of release of hazardous substances, the
disposal of removed material, or the taking of such other actions
as may be necessary to prevent, minimize, or mitigate damage to
the public health or welfare or to the environment, which may
otherwise result from a release or threat of release. The term
includes, in addition, without being limited to, security fencing
or other measures to limit access, provision of alternative water
supplies, temporary evacuation and housing of threatened
individuals not otherwise provided for, action taken under
section 9604(b) of this title, and any emergency assistance which
may be provided under the Disaster Relief and Emergency
Assistance Act [42 U.S.C. 5121 et seq.].
(24) The terms "remedy" or "remedial action" means )3(! those
actions consistent with permanent remedy taken instead of or in
addition to removal actions in the event of a release or
threatened release of a hazardous substance into the environment,
to prevent or minimize the release of hazardous substances so
that they do not migrate to cause substantial danger to present
or future public health or welfare or the environment. The term
includes, but is not limited to, such actions at the location of
the release as storage, confinement, perimeter protection using
dikes, trenches, or ditches, clay cover, neutralization, cleanup
of released hazardous substances and associated contaminated
materials, recycling or reuse, diversion, destruction,
segregation of reactive wastes, dredging or excavations, repair
or replacement of leaking containers, collection of leachate and
runoff, onsite treatment or incineration, provision of
alternative water supplies, and any monitoring reasonably
required to assure that such actions protect the public health
and welfare and the environment. The term includes the costs of
permanent relocation of residents and businesses and community
facilities where the President determines that, alone or in
combination with other measures, such relocation is more
cost-effective than and environmentally preferable to the
transportation, storage, treatment, destruction, or secure
disposition offsite of hazardous substances, or may otherwise be
necessary to protect the public health or welfare; the term
includes offsite transport and offsite storage, treatment,
destruction, or secure disposition of hazardous substances and
associated contaminated materials.
(25) The terms "respond" or "response" means )3(! remove,
removal, remedy, and remedial action;,)4(! all such terms
(including the terms "removal" and "remedial action") include
enforcement activities related thereto.
(26) The terms "transport" or "transportation" means )3(! the
movement of a hazardous substance by any mode, including a
hazardous liquid pipeline facility (as defined in section
60101(a) of title 49), and in the case of a hazardous substance
which has been accepted for transportation by a common or
contract carrier, the term "transport" or "transportation" shall
include any stoppage in transit which is temporary, incidental to
the transportation movement, and at the ordinary operating
convenience of a common or contract carrier, and any such
stoppage shall be considered as a continuity of movement and not
as the storage of a hazardous substance.
(27) The terms "United States" and "State" include the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the United
States Virgin Islands, the Commonwealth of the Northern Marianas,
and any other territory or possession over which the United
States has jurisdiction.
(28) The term "vessel" means every description of watercraft or
other artificial contrivance used, or capable of being used, as a
means of transportation on water.
(29) The terms "disposal", "hazardous waste", and "treatment"
shall have the meaning provided in section 1004 of the Solid
Waste Disposal Act [42 U.S.C. 6903].
(30) The terms "territorial sea" and "contiguous zone" shall
have the meaning provided in section 502 of the Federal Water
Pollution Control Act [33 U.S.C. 1362].
(31) The term "national contingency plan" means the national
contingency plan published under section 311(c) )5(! of the
Federal Water Pollution Control Act or revised pursuant to
section 9605 of this title.
(32) The terms "liable" or "liability" under this subchapter
shall be construed to be the standard of liability which obtains
under section 311 of the Federal Water Pollution Control Act [33
U.S.C. 1321].
(33) The term "pollutant or contaminant" shall include, but not
be limited to, any element, substance, compound, or mixture,
including disease-causing agents, which after release into the
environment and upon exposure, ingestion, inhalation, or
assimilation into any organism, either directly from the
environment or indirectly by ingestion through food chains, will
or may reasonably be anticipated to cause death, disease,
behavioral abnormalities, cancer, genetic mutation, physiological
malfunctions (including malfunctions in reproduction) or physical
deformations, in such organisms or their offspring; except that
the term "pollutant or contaminant" shall not include petroleum,
including crude oil or any fraction thereof which is not
otherwise specifically listed or designated as a hazardous
substance under subparagraphs (A) through (F) of paragraph (14)
and shall not include natural gas, liquefied natural gas, or
synthetic gas of pipeline quality (or mixtures of natural gas and
such synthetic gas).
(34) The term "alternative water supplies" includes, but is not
limited to, drinking water and household water supplies.
(35)(A) The term "contractual relationship", for the purpose of
section 9607(b)(3) of this title, includes, but is not limited
to, land contracts, deeds, easements, leases, or other
instruments transferring title or possession, unless the real
property on which the facility concerned is located was acquired
by the defendant after the disposal or placement of the hazardous
substance on, in, or at the facility, and one or more of the
circumstances described in clause (i), (ii), or (iii) is also
established by the defendant by a preponderance of the evidence:
(i) At the time the defendant acquired the facility the
defendant did not know and had no reason to know that any
hazardous substance which is the subject of the release or
threatened release was disposed of on, in, or at the facility.
(ii) The defendant is a government entity which acquired the
facility by escheat, or through any other involuntary transfer
or acquisition, or through the exercise of eminent domain
authority by purchase or condemnation.
(iii) The defendant acquired the facility by inheritance or
bequest.
In addition to establishing the foregoing, the defendant must
establish that the defendant has satisfied the requirements of
section 9607(b)(3)(a) and (b) of this title, provides full
cooperation, assistance, and facility access to the persons that
are authorized to conduct response actions at the facility
(including the cooperation and access necessary for the
installation, integrity, operation, and maintenance of any
complete or partial response action at the facility), is in
compliance with any land use restrictions established or relied
on in connection with the response action at a facility, and does
not impede the effectiveness or integrity of any institutional
control employed at the facility in connection with a response
action.
(B) Reason to know. -
(i) All appropriate inquiries. - To establish that the
defendant had no reason to know of the matter described in
subparagraph (A)(i), the defendant must demonstrate to a court
that -
(I) on or before the date on which the defendant acquired
the facility, the defendant carried out all appropriate
inquiries, as provided in clauses (ii) and (iv), into the
previous ownership and uses of the facility in accordance
with generally accepted good commercial and customary
standards and practices; and
(II) the defendant took reasonable steps to -
(aa) stop any continuing release;
(bb) prevent any threatened future release; and
(cc) prevent or limit any human, environmental, or
natural resource exposure to any previously released
hazardous substance.
(ii) Standards and practices. - Not later than 2 years after
January 11, 2002, the Administrator shall by regulation
establish standards and practices for the purpose of satisfying
the requirement to carry out all appropriate inquiries under
clause (i).
(iii) Criteria. - In promulgating regulations that establish
the standards and practices referred to in clause (ii), the
Administrator shall include each of the following:
(I) The results of an inquiry by an environmental
professional.
(II) Interviews with past and present owners, operators,
and occupants of the facility for the purpose of gathering
information regarding the potential for contamination at the
facility.
(III) Reviews of historical sources, such as chain of title
documents, aerial photographs, building department records,
and land use records, to determine previous uses and
occupancies of the real property since the property was first
developed.
(IV) Searches for recorded environmental cleanup liens
against the facility that are filed under Federal, State, or
local law.
(V) Reviews of Federal, State, and local government
records, waste disposal records, underground storage tank
records, and hazardous waste handling, generation, treatment,
disposal, and spill records, concerning contamination at or
near the facility.
(VI) Visual inspections of the facility and of adjoining
properties.
(VII) Specialized knowledge or experience on the part of
the defendant.
(VIII) The relationship of the purchase price to the value
of the property, if the property was not contaminated.
(IX) Commonly known or reasonably ascertainable information
about the property.
(X) The degree of obviousness of the presence or likely
presence of contamination at the property, and the ability to
detect the contamination by appropriate investigation.
(iv) Interim standards and practices. -
(I) Property purchased before may 31, 1997. - With respect
to property purchased before May 31, 1997, in making a
determination with respect to a defendant described in clause
(i), a court shall take into account -
(aa) any specialized knowledge or experience on the part
of the defendant;
(bb) the relationship of the purchase price to the value
of the property, if the property was not contaminated;
(cc) commonly known or reasonably ascertainable
information about the property;
(dd) the obviousness of the presence or likely presence
of contamination at the property; and
(ee) the ability of the defendant to detect the
contamination by appropriate inspection.
(II) Property purchased on or after may 31, 1997. - With
respect to property purchased on or after May 31, 1997, and
until the Administrator promulgates the regulations described
in clause (ii), the procedures of the American Society for
Testing and Materials, including the document known as
"Standard E1527-97", entitled "Standard Practice for
Environmental Site Assessment: Phase 1 Environmental Site
Assessment Process", shall satisfy the requirements in clause
(i).
(v) Site inspection and title search. - In the case of
property for residential use or other similar use purchased by
a nongovernmental or noncommercial entity, a facility
inspection and title search that reveal no basis for further
investigation shall be considered to satisfy the requirements
of this subparagraph.
(C) Nothing in this paragraph or in section 9607(b)(3) of this
title shall diminish the liability of any previous owner or
operator of such facility who would otherwise be liable under
this chapter. Notwithstanding this paragraph, if the defendant
obtained actual knowledge of the release or threatened release of
a hazardous substance at such facility when the defendant owned
the real property and then subsequently transferred ownership of
the property to another person without disclosing such knowledge,
such defendant shall be treated as liable under section
9607(a)(1) of this title and no defense under section 9607(b)(3)
of this title shall be available to such defendant.
(D) Nothing in this paragraph shall affect the liability under
this chapter of a defendant who, by any act or omission, caused
or contributed to the release or threatened release of a
hazardous substance which is the subject of the action relating
to the facility.
(36) The term "Indian tribe" means any Indian tribe, band,
nation, or other organized group or community, including any
Alaska Native village but not including any Alaska Native
regional or village corporation, which is recognized as eligible
for the special programs and services provided by the United
States to Indians because of their status as Indians.
(37)(A) The term "service station dealer" means any person -
(i) who owns or operates a motor vehicle service station,
filling station, garage, or similar retail establishment
engaged in the business of selling, repairing, or servicing
motor vehicles, where a significant percentage of the gross
revenue of the establishment is derived from the fueling,
repairing, or servicing of motor vehicles, and
(ii) who accepts for collection, accumulation, and delivery
to an oil recycling facility, recycled oil that (I) has been
removed from the engine of a light duty motor vehicle or
household appliances by the owner of such vehicle or
appliances, and (II) is presented, by such owner, to such
person for collection, accumulation, and delivery to an oil
recycling facility.
(B) For purposes of section 9614(c) of this title, the term
"service station dealer" shall, notwithstanding the provisions of
subparagraph (A), include any government agency that establishes
a facility solely for the purpose of accepting recycled oil that
satisfies the criteria set forth in subclauses (I) and (II) of
subparagraph (A)(ii), and, with respect to recycled oil that
satisfies the criteria set forth in subclauses (I) and (II),
owners or operators of refuse collection services who are
compelled by State law to collect, accumulate, and deliver such
oil to an oil recycling facility.
(C) The President shall promulgate regulations regarding the
determination of what constitutes a significant percentage of the
gross revenues of an establishment for purposes of this
paragraph.
(38) The term "incineration vessel" means any vessel which
carries hazardous substances for the purpose of incineration of
such substances, so long as such substances or residues of such
substances are on board.
(39) Brownfield site. -
(A) In general. - The term "brownfield site" means real
property, the expansion, redevelopment, or reuse of which may
be complicated by the presence or potential presence of a
hazardous substance, pollutant, or contaminant.
(B) Exclusions. - The term "brownfield site" does not include
-
(i) a facility that is the subject of a planned or ongoing
removal action under this subchapter;
(ii) a facility that is listed on the National Priorities
List or is proposed for listing;
(iii) a facility that is the subject of a unilateral
administrative order, a court order, an administrative order
on consent or judicial consent decree that has been issued to
or entered into by the parties under this chapter;
(iv) a facility that is the subject of a unilateral
administrative order, a court order, an administrative order
on consent or judicial consent decree that has been issued to
or entered into by the parties, or a facility to which a
permit has been issued by the United States or an authorized
State under the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.), the Federal Water Pollution Control Act (33 U.S.C.
1321) [33 U.S.C. Sec. 1251 et seq.], the Toxic Substances
Control Act (15 U.S.C. 2601 et seq.), or the Safe Drinking
Water Act (42 U.S.C. 300f et seq.);
(v) a facility that -
(I) is subject to corrective action under section 3004(u)
or 3008(h) of the Solid Waste Disposal Act (42 U.S.C.
6924(u), 6928(h)); and
(II) to which a corrective action permit or order has
been issued or modified to require the implementation of
corrective measures;
(vi) a land disposal unit with respect to which -
(I) a closure notification under subtitle C of the Solid
Waste Disposal Act (42 U.S.C. 6921 et seq.) has been
submitted; and
(II) closure requirements have been specified in a
closure plan or permit;
(vii) a facility that is subject to the jurisdiction,
custody, or control of a department, agency, or
instrumentality of the United States, except for land held in
trust by the United States for an Indian tribe;
(viii) a portion of a facility -
(I) at which there has been a release of polychlorinated
biphenyls; and
(II) that is subject to remediation under the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.); or
(ix) a portion of a facility, for which portion, assistance
for response activity has been obtained under subtitle I of
the Solid Waste Disposal Act (42 U.S.C. 6991 et seq.) from
the Leaking Underground Storage Tank Trust Fund established
under section 9508 of title 26.
(C) Site-by-site determinations. - Notwithstanding
subparagraph (B) and on a site-by-site basis, the President may
authorize financial assistance under section 9604(k) of this
title to an eligible entity at a site included in clause (i),
(iv), (v), (vi), (viii), or (ix) of subparagraph (B) if the
President finds that financial assistance will protect human
health and the environment, and either promote economic
development or enable the creation of, preservation of, or
addition to parks, greenways, undeveloped property, other
recreational property, or other property used for nonprofit
purposes.
(D) Additional areas. - For the purposes of section 9604(k)
of this title, the term "brownfield site" includes a site that
-
(i) meets the definition of "brownfield site" under
subparagraphs (A) through (C); and
(ii)(I) is contaminated by a controlled substance (as
defined in section 802 of title 21);
(II)(aa) is contaminated by petroleum or a petroleum
product excluded from the definition of "hazardous substance"
under this section; and
(bb) is a site determined by the Administrator or the
State, as appropriate, to be -
(AA) of relatively low risk, as compared with other
petroleum-only sites in the State; and
(BB) a site for which there is no viable responsible
party and which will be assessed, investigated, or cleaned
up by a person that is not potentially liable for cleaning
up the site; and
(cc) is not subject to any order issued under section
9003(h) of the Solid Waste Disposal Act (42 U.S.C. 6991b(h));
or
(III) is mine-scarred land.
(40) Bona fide prospective purchaser. - The term "bona fide
prospective purchaser" means a person (or a tenant of a person)
that acquires ownership of a facility after January 11, 2002, and
that establishes each of the following by a preponderance of the
evidence:
(A) Disposal prior to acquisition. - All disposal of
hazardous substances at the facility occurred before the person
acquired the facility.
(B) Inquiries. -
(i) In general. - The person made all appropriate inquiries
into the previous ownership and uses of the facility in
accordance with generally accepted good commercial and
customary standards and practices in accordance with clauses
(ii) and (iii).
(ii) Standards and practices. - The standards and practices
referred to in clauses (ii) and (iv) of paragraph (35)(B)
shall be considered to satisfy the requirements of this
subparagraph.
(iii) Residential use. - In the case of property in
residential or other similar use at the time of purchase by a
nongovernmental or noncommercial entity, a facility
inspection and title search that reveal no basis for further
investigation shall be considered to satisfy the requirements
of this subparagraph.
(C) Notices. - The person provides all legally required
notices with respect to the discovery or release of any
hazardous substances at the facility.
(D) Care. - The person exercises appropriate care with
respect to hazardous substances found at the facility by taking
reasonable steps to -
(i) stop any continuing release;
(ii) prevent any threatened future release; and
(iii) prevent or limit human, environmental, or natural
resource exposure to any previously released hazardous
substance.
(E) Cooperation, assistance, and access. - The person
provides full cooperation, assistance, and access to persons
that are authorized to conduct response actions or natural
resource restoration at a vessel or facility (including the
cooperation and access necessary for the installation,
integrity, operation, and maintenance of any complete or
partial response actions or natural resource restoration at the
vessel or facility).
(F) Institutional control. - The person -
(i) is in compliance with any land use restrictions
established or relied on in connection with the response
action at a vessel or facility; and
(ii) does not impede the effectiveness or integrity of any
institutional control employed at the vessel or facility in
connection with a response action.
(G) Requests; subpoenas. - The person complies with any
request for information or administrative subpoena issued by
the President under this chapter.
(H) No affiliation. - The person is not -
(i) potentially liable, or affiliated with any other person
that is potentially liable, for response costs at a facility
through -
(I) any direct or indirect familial relationship; or
(II) any contractual, corporate, or financial
relationship (other than a contractual, corporate, or
financial relationship that is created by the instruments
by which title to the facility is conveyed or financed or
by a contract for the sale of goods or services); or
(ii) the result of a reorganization of a business entity
that was potentially liable.
(41) Eligible response site. -
(A) In general. - The term "eligible response site" means a
site that meets the definition of a brownfield site in
subparagraphs (A) and (B) of paragraph (39), as modified by
subparagraphs (B) and (C) of this paragraph.
(B) Inclusions. - The term "eligible response site" includes
-
(i) notwithstanding paragraph (39)(B)(ix), a portion of a
facility, for which portion assistance for response activity
has been obtained under subtitle I of the Solid Waste
Disposal Act (42 U.S.C. 6991 et seq.) from the Leaking
Underground Storage Tank Trust Fund established under section
9508 of title 26; or
(ii) a site for which, notwithstanding the exclusions
provided in subparagraph (C) or paragraph (39)(B), the
President determines, on a site-by-site basis and after
consultation with the State, that limitations on enforcement
under section 9628 of this title at sites specified in clause
(iv), (v), (vi) or (viii) of paragraph (39)(B) would be
appropriate and will -
(I) protect human health and the environment; and
(II) promote economic development or facilitate the
creation of, preservation of, or addition to a park, a
greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes.
(C) Exclusions. - The term "eligible response site" does not
include -
(i) a facility for which the President -
(I) conducts or has conducted a preliminary assessment or
site inspection; and
(II) after consultation with the State, determines or has
determined that the site obtains a preliminary score
sufficient for possible listing on the National Priorities
List, or that the site otherwise qualifies for listing on
the National Priorities List; unless the President has made
a determination that no further Federal action will be
taken; or
(ii) facilities that the President determines warrant
particular consideration as identified by regulation, such as
sites posing a threat to a sole-source drinking water aquifer
or a sensitive ecosystem.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 101, Dec. 11, 1980, 94 Stat. 2767;
Pub. L. 96-561, title II, Sec. 238(b), Dec. 22, 1980, 94 Stat.
3300; Pub. L. 99-499, title I, Secs. 101, 114(b), 127(a), title V,
Sec. 517(c)(2), Oct. 17, 1986, 100 Stat. 1615, 1652, 1692, 1774;
Pub. L. 100-707, title I, Sec. 109(v), Nov. 23, 1988, 102 Stat.
4710; Pub. L. 103-429, Sec. 7(e)(1), Oct. 31, 1994, 108 Stat. 4390;
Pub. L. 104-208, div. A, title I, Sec. 101(a) [title II, Sec.
211(b)], title II, Sec. 2502(b), Sept. 30, 1996, 110 Stat. 3009,
3009-41, 3009-464; Pub. L. 104-287, Sec. 6(j)(1), Oct. 11, 1996,
110 Stat. 3399; Pub. L. 106-74, title IV, Sec. 427, Oct. 20, 1999,
113 Stat. 1095; Pub. L. 107-118, title II, Secs. 211(a), 222(a),
223, 231(a), Jan. 11, 2002, 115 Stat. 2360, 2370, 2372, 2375.)
-REFTEXT-
REFERENCES IN TEXT
This chapter, referred to in pars. (5), (13), (20)(D), (G),
(35)(C), (D), (39)(B)(iii), and (40)(G), was in the original "this
Act", meaning Pub. L. 96-510, Dec. 11, 1980, 94 Stat. 2767, as
amended, known as the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980. For complete
classification of this Act to the Code, see Short Title note below
and Tables.
The Safe Drinking Water Act, referred to in pars. (7), (10), and
(39)(B)(iv), is title XIV of act July 1, 1944, as added Dec. 16,
1974, Pub. L. 93-523, Sec. 2(a), 88 Stat. 1660, as amended, which
is classified generally to subchapter XII (Sec. 300f et seq.) of
chapter 6A of this title. Part C of the Safe Drinking Water Act is
classified generally to part C (Sec. 300h et seq.) of subchapter
XII of chapter 6A of this title. For complete classification of
this Act to the Code, see Short Title note set out under section
201 of this title and Tables.
The Magnuson-Stevens Fishery Conservation and Management Act,
referred to in pars. (8) and (16), is Pub. L. 94-265, Apr. 13,
1976, 90 Stat. 331, as amended, which is classified principally to
chapter 38 (Sec. 1801 et seq.) of Title 16, Conservation. The
fishery conservation zone established by this Act, referred to in
par. (16), was established by section 101 of this Act (16 U.S.C.
1811), which as amended generally by Pub. L. 99-659, title I, Sec.
101(b), Nov. 14, 1986, 100 Stat. 3706, relates to United States
sovereign rights and fishery management authority over fish within
the exclusive economic zone as defined in section 1802 of Title 16.
For complete classification of this Act to the Code, see Short
Title note set out under section 1801 of Title 16 and Tables.
The Clean Air Act, referred to in par. (10), is act July 14,
1955, ch. 360, as amended generally by Pub. L. 88-206, Dec. 17,
1963, 77 Stat. 392, and later by Pub. L. 95-95, Aug. 7, 1977, 91
Stat. 685. The Clean Air Act was originally classified to chapter
15B (Sec. 1857 et seq.) of this title. On enactment of Pub. L.
95-95, the Act was reclassified to chapter 85 (Sec. 7401 et seq.)
of this title. Parts C and D of title I of the Clean Air Act are
classified generally to parts C (Sec. 7470 et seq.) and D (Sec.
7501 et seq.), respectively, of subchapter I of chapter 85 of this
title. For complete classification of this Act to the Code, see
Short Title note set out under section 7401 of this title and
Tables.
The Atomic Energy Act of 1954, referred to in pars. (10) and
(22), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954,
ch. 1073, Sec. 1, 68 Stat. 921, and amended, which is classified
generally to chapter 23 (Sec. 2011 et seq.) of this title. For
complete classification of this Act to the Code, see Short Title
note set out under section 2011 of this title and Tables.
The Solid Waste Disposal Act, referred to in pars. (14),
(39)(B)(iv), (vi)(I), (ix), and (41)(B)(i), is title II of Pub. L.
89-272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub.
L. 94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795, which is
classified generally to chapter 82 (Sec. 6901 et seq.) of this
title. Subtitles C and I of the Act are classified generally to
subchapters III (Sec. 6921 et seq.) and IX (Sec. 6991 et seq.),
respectively, of chapter 82 of this title. For complete
classification of this Act to the Code, see Short Title note set
out under section 6901 of this title and Tables.
The Farm Credit Act of 1971, referred to in par.
(20)(G)(iv)(III), is Pub. L. 92-181, Dec. 10, 1971, 85 Stat. 583,
as amended, which is classified generally to chapter 23 (Sec. 2001
et seq.) of Title 12, Banks and Banking. For complete
classification of this Act to the Code, see Short Title note set
out under section 2001 of Title 12 and Tables.
The Disaster Relief and Emergency Assistance Act, referred to in
par. (23), is Pub. L. 93-288, May 22, 1974, 88 Stat. 143, as
amended, known as the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, which is classified principally to
chapter 68 (Sec. 5121 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set
out under section 5121 of this title and Tables.
The Federal Water Pollution Control Act, referred to in par.
(39)(B)(iv), is act June 30, 1948, ch. 758, as amended generally by
Pub. L. 92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 816, also known as
the Clean Water Act, which is classified generally to chapter 26
(Sec. 1251 et seq.) of Title 33, Navigation and Navigable Waters.
Section 311(c) of the Act was amended generally by Pub. L. 101-380,
title IV, Sec. 4201(a), Aug. 18, 1990, 104 Stat. 523, and no longer
contains provisions directing the publishing of a National
Contingency Plan. However, such provisions are contained in section
1321(d) of Title 33. For complete classification of this Act to the
Code, see Short Title note set out under section 1251 of Title 33
and Tables.
The Toxic Substances Control Act, referred to in par.
(39)(B)(iv), (viii)(II), is Pub. L. 94-469, Oct. 11, 1976, 90 Stat.
2003, as amended, which is classified generally to chapter 53 (Sec.
2601 et seq.) of Title 15, Commerce and Trade. For complete
classification of this Act to the Code, see Short Title note set
out under section 2601 of Title 15 and Tables.
-MISC1-
AMENDMENTS
2002 - Par. (35)(A). Pub. L. 107-118, Sec. 223(1), in
introductory provisions substituted "deeds, easements, leases, or"
for "deeds or" and in concluding provisions substituted "the
defendant has satisfied" for "he has satisfied" and inserted before
period at end ", provides full cooperation, assistance, and
facility access to the persons that are authorized to conduct
response actions at the facility (including the cooperation and
access necessary for the installation, integrity, operation, and
maintenance of any complete or partial response action at the
facility), is in compliance with any land use restrictions
established or relied on in connection with the response action at
a facility, and does not impede the effectiveness or integrity of
any institutional control employed at the facility in connection
with a response action".
Par. (35)(B). Pub. L. 107-118, Sec. 223(2), added subpar. (B) and
struck out former subpar. (B) which read as follows: "To establish
that the defendant had no reason to know, as provided in clause (i)
of subparagraph (A) of this paragraph, the defendant must have
undertaken, at the time of acquisition, all appropriate inquiry
into the previous ownership and uses of the property consistent
with good commercial or customary practice in an effort to minimize
liability. For purposes of the preceding sentence the court shall
take into account any specialized knowledge or experience on the
part of the defendant, the relationship of the purchase price to
the value of the property if uncontaminated, commonly known or
reasonably ascertainable information about the property, the
obviousness of the presence or likely presence of contamination at
the property, and the ability to detect such contamination by
appropriate inspection."
Par. (39). Pub. L. 107-118, Sec. 211(a), added par. (39).
Par. (40). Pub. L. 107-118, Sec. 222(a), added par. (40).
Par. (41). Pub. L. 107-118, Sec. 231(a), added par. (41).
1999 - Par. (20)(D). Pub. L. 106-74, which directed the amendment
of subpar. (D) by inserting "through seizure or otherwise in
connection with law enforcement activity" before "involuntary" the
first place it appears, could not be executed because the word
"involuntary" does not appear in subpar. (D).
1996 - Pars. (8), (16). Pub. L. 104-208, Sec. 101(a) [title II,
Sec. 211(b)], substituted "Magnuson-Stevens Fishery" for "Magnuson
Fishery".
Par. (20)(E) to (G). Pub. L. 104-208, Sec. 2502(b), added
subpars. (E) to (G).
Par. (26). Pub. L. 104-287 substituted "section 60101(a) of title
49" for "the Pipeline Safety Act".
1994 - Par. (26). Pub. L. 103-429 substituted "a hazardous liquid
pipeline facility" for "pipeline".
1988 - Par. (23). Pub. L. 100-707 substituted "Disaster Relief
and Emergency Assistance Act" for "Disaster Relief Act of 1974".
1986 - Pub. L. 99-499, Sec. 101(f), struck out ", the term" after
"subchapter" in introductory text.
Pars. (1) to (10). Pub. L. 99-499, Sec. 101(f), inserted "The
term" and substituted a period for the semicolon at end.
Par. (11). Pub. L. 99-499, Sec. 517(c)(2), amended par. (11)
generally. Prior to amendment, par. (11) read as follows: "The term
'Fund' or 'Trust Fund' means the Hazardous Substance Response Fund
established by section 9631 of this title or, in the case of a
hazardous waste disposal facility for which liability has been
transferred under section 9607(k) of this title, the Post-closure
Liability Fund established by section 9641 of this title."
Pub. L. 99-499, Sec. 101(f), inserted "The term" and substituted
a period for the semicolon at end.
Pars. (12) to (15). Pub. L. 99-499, Sec. 101(f), inserted "The
term" and substituted a period for the semicolon at end.
Par. (16). Pub. L. 99-499, Sec. 101(a), (f), inserted "The term",
struck out "or" after "local government," inserted ", any Indian
tribe, or, if such resources are subject to a trust restriction on
alienation, any member of an Indian tribe", and substituted a
period for the semicolon at end.
Pars. (17) to (19). Pub. L. 99-499, Sec. 101(f), inserted "The
term" and substituted a period for the semicolon at end.
Par. (20)(A). Pub. L. 99-499, Sec. 101(f), inserted "The term".
Pub. L. 99-499, Sec. 101(b)(2), amended cl. (iii) generally.
Prior to amendment, cl. (iii) read as follows: "in the case of any
abandoned facility, any person who owned, operated, or otherwise
controlled activities at such facility immediately prior to such
abandonment."
Pub. L. 99-499, Sec. 101(b)(3), in provisions following subcl.
(iii), substituted a period for the semicolon at end.
Par. (20)(B), (C). Pub. L. 99-499, Sec. 101(b)(3), substituted
"In the case" for "in the case" and a period for the semicolon at
end.
Par. (20)(D). Pub. L. 99-499, Sec. 101(b)(1), (f), added subpar.
(D). The part of Sec. 101(f) of Pub. L. 99-499 which directed the
amendment of par. (20) by changing the semicolon at end to a period
could not be executed in view of the prior amendment of par. (20)
by Sec. 101(b)(1) of Pub. L. 99-499 which added subpar. (D) ending
in a period.
Par. (21). Pub. L. 99-499, Sec. 101(f), inserted "The term" and
substituted a period for the semicolon at end.
Par. (22). Pub. L. 99-499, Sec. 101(c), (f), inserted "The term"
and "(including the abandonment or discarding of barrels,
containers, and other closed receptacles containing any hazardous
substance or pollutant or contaminant)", substituted a period for
the semicolon at end.
Par. (23). Pub. L. 99-499, Sec. 101(f), inserted "The terms" and
substituted a period for the semicolon at end.
Par. (24). Pub. L. 99-499, Sec. 101(d), (f), inserted "The terms"
and substituted "and associated contaminated materials" for "or
contaminated materials" and "welfare; the term includes offsite
transport and offsite storage, treatment, destruction, or secure
disposition of hazardous substances and associated contaminated
materials." for "welfare. The term does not include offsite
transport of hazardous substances, or the storage, treatment,
destruction, or secure disposition offsite of such hazardous
substances or contaminated materials unless the President
determines that such actions (A) are more cost-effective than other
remedial actions, (B) will create new capacity to manage, in
compliance with subtitle C of the Solid Waste Disposal Act [42
U.S.C. 6921 et seq.], hazardous substances in addition to those
located at the affected facility, or (C) are necessary to protect
public health or welfare or the environment from a present or
potential risk which may be created by further exposure to the
continued presence of such substances or materials;". The part of
Sec. 101(f) of Pub. L. 99-499 which directed amendment of par. (24)
by changing the semicolon at end to a period could not be executed
in view of prior amendment of par. (24) by Sec. 101(d) of Pub. L.
99-499 which substituted language at end of par. (24) ending in a
period for former language ending in a semicolon.
Par. (25). Pub. L. 99-499, Sec. 101(e), (f), inserted "The terms"
and ", all such terms (including the terms 'removal' and 'remedial
action') include enforcement activities related thereto." The part
of Sec. 101(f) of Pub. L. 99-499 which directed amendment of par.
(25) by changing the semicolon at end to a period could not be
executed in view of prior amendment of par. (25) by Sec. 101(e) of
Pub. L. 99-499 inserting language and a period at end of par. (25).
Pars. (26), (27). Pub. L. 99-499, Sec. 101(f), inserted "The
terms" and substituted a period for the semicolon at end.
Par. (28). Pub. L. 99-499, Sec. 101(f), inserted "The term" and
substituted a period for the semicolon at end.
Par. (29). Pub. L. 99-499, Sec. 101(f), inserted "The terms" and
substituted a period for the semicolon at end.
Par. (30). Pub. L. 99-499, Sec. 101(f), inserted "The terms".
Par. (31). Pub. L. 99-499, Sec. 101(f), inserted "The term" and
substituted a period for "; and".
Par. (32). Pub. L. 99-499, Sec. 101(f), inserted "The terms".
Pars. (33) to (36). Pub. L. 99-499, Sec. 101(f), added pars. (33)
to (36).
Par. (37). Pub. L. 99-499, Sec. 114(b), added par. (37).
Par. (38). Pub. L. 99-499, Sec. 127(a), added par. (38).
1980 - Pars. (8), (16). Pub. L. 96-561 substituted "Magnuson
Fishery Conservation and Management Act" for "Fishery Conservation
and Management Act of 1976".
EFFECTIVE DATE OF 1996 AMENDMENT
Section 101(a) [title II, Sec. 211(b)] of div. A of Pub. L.
104-208 provided that the amendment made by that section is
effective 15 days after Oct. 11, 1996.
Amendment by section 2502(b) of Pub. L. 104-208 applicable with
respect to any claim that has not been finally adjudicated as of
Sept. 30, 1996, see section 2505 of Pub. L. 104-208, set out as a
note under section 6991b of this title.
EFFECTIVE DATE OF 1986 AMENDMENT
Section 4 of Pub. L. 99-499 provided that: "Except as otherwise
specified in section 121(b) of this Act [set out as an Effective
Date note under section 9621 of this title] or in any other
provision of titles I, II, III, and IV of this Act [see Tables for
classification], the amendments made by titles I through IV of this
Act [enacting subchapter IV of this chapter and sections 9616 to
9626, 9658 to 9660, and 9661 of this title and sections 2701 to
2707 and 2810 of Title 10, Armed Forces, amending sections 6926,
6928, 6991 to 6991d, 6991g, 9601 to 9609, 9611 to 9614, 9631, 9651,
9656, and 9657 of this title and section 1416 of Title 33,
Navigation and Navigable Waters, and renumbering former section
2701 of Title 10 as section 2721 of Title 10] shall take effect on
the enactment of this Act [Oct. 17, 1986]."
Amendment by section 517(c)(2) of Pub. L. 99-499 effective Jan.
1, 1987, see section 517(e) of Pub. L. 99-499, set out as an
Effective Date note under section 9507 of Title 26, Internal
Revenue Code.
EFFECTIVE DATE OF 1980 AMENDMENT
Section 238(b) of Pub. L. 96-561 provided that the amendment made
by that section is effective 15 days after Dec. 22, 1980.
SHORT TITLE OF 2002 AMENDMENTS
Pub. L. 107-118, Sec. 1, Jan. 11, 2002, 115 Stat. 2356, provided
that: "This Act [enacting section 9628 of this title, amending this
section and sections 9604, 9605, 9607, and 9622 of this title, and
enacting provisions set out as notes under this section and section
9607 of this title] may be cited as the 'Small Business Liability
Relief and Brownfields Revitalization Act'."
Pub. L. 107-118, title I, Sec. 101, Jan. 11, 2002, 115 Stat.
2356, provided that: "This title [amending sections 9607 and 9622
of this title and enacting provisions set out as a note under
section 9607 of this title] may be cited as the 'Small Business
Liability Protection Act'."
Pub. L. 107-118, title II, Sec. 201, Jan. 11, 2002, 115 Stat.
2360, provided that: "This title [enacting section 9628 of this
title and amending this section and sections 9604, 9605, and 9607
of this title] may be cited as the 'Brownfields Revitalization and
Environmental Restoration Act of 2001'."
SHORT TITLE OF 1996 AMENDMENT
Section 2501 of div. A of Pub. L. 104-208 provided that: "This
subtitle [subtitle E (Secs. 2501-2505) of title II of div. A of
Pub. L. 104-208, amending this section and sections 6991b and 9607
of this title and enacting provisions set out as a note under
section 6991b of this title] may be cited as the 'Asset
Conservation, Lender Liability, and Deposit Insurance Protection
Act of 1996'."
SHORT TITLE OF 1992 AMENDMENT
Pub. L. 102-426, Sec. 1, Oct. 19, 1992, 106 Stat. 2174, provided
that: "This Act [amending section 9620 of this title and enacting
provisions set out as a note under section 9620 of this title] may
be cited as the 'Community Environmental Response Facilitation
Act'."
SHORT TITLE OF 1986 AMENDMENT
Section 1 of Pub. L. 99-499 provided that: "This Act [enacting
subchapter IV of this chapter and sections 9616 to 9626, 9658 to
9662, 11001 to 11005, 11021 to 11023, and 11041 to 11050 of this
title, sections 2701 to 2707 and 2810 of Title 10, Armed Forces,
and sections 59A, 4671, 4672, 9507, and 9508 of Title 26, Internal
Revenue Code, amending this section, sections 6926, 6928, 6991 to
6991d, 6991g, 9602 to 9609, 9611 to 9614, 9631, 9651, 9656, and
9657 of this title, sections 26, 164, 275, 936, 1561, 4041, 4042,
4081, 4221, 4611, 4612, 4661, 4662, 6154, 6416, 6420, 6421, 6425,
6427, 6655, 9502, 9503, and 9506 of Title 26, and section 1416 of
Title 33, Navigation and Navigable Waters, renumbering former
section 2701 of Title 10 as section 2721 of Title 10, repealing
sections 9631 to 9633, 9641, and 9653 of this title and sections
4681 and 4682 of Title 26, and enacting provisions set out as notes
under this section, sections 6921, 6991b, 7401, 9620, 9621, 9658,
9660, 9661, and 11001 of this title, section 2703 of Title 10,
sections 1, 26, 4041, 4611, 4661, 4671, 4681, 9507, and 9508 of
Title 26, and section 655 of Title 29, Labor] may be cited as the
'Superfund Amendments and Reauthorization Act of 1986'."
SHORT TITLE
Section 1 of Pub. L. 96-510 provided: "That this Act [enacting
this chapter, section 6911a of this title, and sections 4611, 4612,
4661, 4662, 4681, and 4682 of Title 26, Internal Revenue Code,
amending section 6911 of this title, section 1364 of Title 33,
Navigation and Navigable Waters, and section 11901 of Title 49,
Transportation, and enacting provisions set out as notes under
section 6911 of this title and sections 1 and 4611 of Title 26] may
be cited as the 'Comprehensive Environmental Response,
Compensation, and Liability Act of 1980'."
-TRANS-
TRANSFER OF FUNCTIONS
For transfer of certain functions from Nuclear Regulatory
Commission to Chairman thereof, see Reorg. Plan No. 1 of 1980, 45
F.R. 40561, 94 Stat. 3585, set out as a note under section 5841 of
this title.
-EXEC-
TERRITORIAL SEA AND CONTIGUOUS ZONE OF UNITED STATES
For extension of territorial sea and contiguous zone of United
States, see Proc. No. 5928 and Proc. No. 7219, respectively, set
out as notes under section 1331 of Title 43, Public Lands.
-CROSS-
DEFINITIONS
Section 2 of Pub. L. 99-499 provided that: "As used in this Act
[see Short Title of 1986 Amendment note above] -
"(1) CERCLA. - The term 'CERCLA' means the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601 et seq.).
"(2) Administrator. - The term 'Administrator' means the
Administrator of the Environmental Protection Agency."
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 300g-1, 6991, 6991b,
9602, 9603, 9604, 9607, 9613, 9624, 9656, 11004 of this title;
title 7 section 1985; title 10 sections 2692, 2700, 2701, 2703,
2708; title 14 section 690; title 16 section 460lll; title 26
section 198; title 33 section 2701; title 50 section 2811.
-FOOTNOTE-
)1(! So in original. Probably should be "or".
)2(! So in original. Probably should be followed by a closing
parenthesis.
)3(! So in original. Probably should be "mean".
)4(! So in original.
)5(! See References in Text note below.
-End-
-CITE-
42 USC Sec. 9602 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9602. Designation of additional hazardous substances and
establishment of reportable released quantities; regulations
-STATUTE-
(a) The Administrator shall promulgate and revise as may be
appropriate, regulations designating as hazardous substances, in
addition to those referred to in section 9601(14) of this title,
such elements, compounds, mixtures, solutions, and substances
which, when released into the environment may present substantial
danger to the public health or welfare or the environment, and
shall promulgate regulations establishing that quantity of any
hazardous substance the release of which shall be reported pursuant
to section 9603 of this title. The Administrator may determine that
one single quantity shall be the reportable quantity for any
hazardous substance, regardless of the medium into which the
hazardous substance is released. For all hazardous substances for
which proposed regulations establishing reportable quantities were
published in the Federal Register under this subsection on or
before March 1, 1986, the Administrator shall promulgate under this
subsection final regulations establishing reportable quantities not
later than December 31, 1986. For all hazardous substances for
which proposed regulations establishing reportable quantities were
not published in the Federal Register under this subsection on or
before March 1, 1986, the Administrator shall publish under this
subsection proposed regulations establishing reportable quantities
not later than December 31, 1986, and promulgate final regulations
under this subsection establishing reportable quantities not later
than April 30, 1988."
(b) Unless and until superseded by regulations establishing a
reportable quantity under subsection (a) of this section for any
hazardous substance as defined in section 9601(14) of this title,
(1) a quantity of one pound, or (2) for those hazardous substances
for which reportable quantities have been established pursuant to
section 1321(b)(4) of title 33, such reportable quantity, shall be
deemed that quantity, the release of which requires notification
pursuant to section 9603(a) or (b) of this title.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 102, Dec. 11, 1980, 94 Stat. 2772;
Pub. L. 99-499, title I, Sec. 102, Oct. 17, 1986, 100 Stat. 1617.)
-MISC1-
AMENDMENTS
1986 - Subsec. (a). Pub. L. 99-499 inserted provisions setting
deadlines for promulgation of proposed and final regulations.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9601, 9603, 11004 of this
title; title 10 section 2692; title 26 section 198; title 33
section 1319.
-End-
-CITE-
42 USC Sec. 9603 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9603. Notification requirements respecting released substances
-STATUTE-
(a) Notice to National Response Center upon release from vessel or
offshore or onshore facility by person in charge; conveyance of
notice by Center
Any person in charge of a vessel or an offshore or an onshore
facility shall, as soon as he has knowledge of any release (other
than a federally permitted release) of a hazardous substance from
such vessel or facility in quantities equal to or greater than
those determined pursuant to section 9602 of this title,
immediately notify the National Response Center established under
the Clean Water Act [33 U.S.C. 1251 et seq.] of such release. The
National Response Center shall convey the notification
expeditiously to all appropriate Government agencies, including the
Governor of any affected State.
(b) Penalties for failure to notify; use of notice or information
pursuant to notice in criminal case
Any person -
(1) in charge of a vessel from which a hazardous substance is
released, other than a federally permitted release, into or upon
the navigable waters of the United States, adjoining shorelines,
or into or upon the waters of the contiguous zone, or
(2) in charge of a vessel from which a hazardous substance is
released, other than a federally permitted release, which may
affect natural resources belonging to, appertaining to, or under
the exclusive management authority of the United States
(including resources under the Magnuson-Stevens Fishery
Conservation and Management Act [16 U.S.C. 1801 et seq.]), and
who is otherwise subject to the jurisdiction of the United States
at the time of the release, or
(3) in charge of a facility from which a hazardous substance is
released, other than a federally permitted release,
in a quantity equal to or greater than that determined pursuant to
section 9602 of this title who fails to notify immediately the
appropriate agency of the United States Government as soon as he
has knowledge of such release or who submits in such a notification
any information which he knows to be false or misleading shall,
upon conviction, be fined in accordance with the applicable
provisions of title 18 or imprisoned for not more than 3 years (or
not more than 5 years in the case of a second or subsequent
conviction), or both. Notification received pursuant to this
subsection or information obtained by the exploitation of such
notification shall not be used against any such person in any
criminal case, except a prosecution for perjury or for giving a
false statement.
(c) Notice to Administrator of EPA of existence of storage, etc.,
facility by owner or operator; exception; time, manner, and form
of notice; penalties for failure to notify; use of notice or
information pursuant to notice in criminal case
Within one hundred and eighty days after December 11, 1980, any
person who owns or operates or who at the time of disposal owned or
operated, or who accepted hazardous substances for transport and
selected, a facility at which hazardous substances (as defined in
section 9601(14)(C) of this title) are or have been stored,
treated, or disposed of shall, unless such facility has a permit
issued under, or has been accorded interim status under, subtitle C
of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.], notify
the Administrator of the Environmental Protection Agency of the
existence of such facility, specifying the amount and type of any
hazardous substance to be found there, and any known, suspected, or
likely releases of such substances from such facility. The
Administrator may prescribe in greater detail the manner and form
of the notice and the information included. The Administrator shall
notify the affected State agency, or any department designated by
the Governor to receive such notice, of the existence of such
facility. Any person who knowingly fails to notify the
Administrator of the existence of any such facility shall, upon
conviction, be fined not more than $10,000, or imprisoned for not
more than one year, or both. In addition, any such person who
knowingly fails to provide the notice required by this subsection
shall not be entitled to any limitation of liability or to any
defenses to liability set out in section 9607 of this title:
Provided, however, That notification under this subsection is not
required for any facility which would be reportable hereunder
solely as a result of any stoppage in transit which is temporary,
incidental to the transportation movement, or at the ordinary
operating convenience of a common or contract carrier, and such
stoppage shall be considered as a continuity of movement and not as
the storage of a hazardous substance. Notification received
pursuant to this subsection or information obtained by the
exploitation of such notification shall not be used against any
such person in any criminal case, except a prosecution for perjury
or for giving a false statement.
(d) Recordkeeping requirements; promulgation of rules and
regulations by Administrator of EPA; penalties for violations;
waiver of retention requirements
(1) The Administrator of the Environmental Protection Agency is
authorized to promulgate rules and regulations specifying, with
respect to -
(A) the location, title, or condition of a facility, and
(B) the identity, characteristics, quantity, origin, or
condition (including containerization and previous treatment) of
any hazardous substances contained or deposited in a facility;
the records which shall be retained by any person required to
provide the notification of a facility set out in subsection (c) of
this section. Such specification shall be in accordance with the
provisions of this subsection.
(2) Beginning with December 11, 1980, for fifty years thereafter
or for fifty years after the date of establishment of a record
(whichever is later), or at any such earlier time as a waiver if
obtained under paragraph (3) of this subsection, it shall be
unlawful for any such person knowingly to destroy, mutilate, erase,
dispose of, conceal, or otherwise render unavailable or unreadable
or falsify any records identified in paragraph (1) of this
subsection. Any person who violates this paragraph shall, upon
conviction, be fined in accordance with the applicable provisions
of title 18 or imprisoned for not more than 3 years (or not more
than 5 years in the case of a second or subsequent conviction), or
both.
(3) At any time prior to the date which occurs fifty years after
December 11, 1980, any person identified under paragraph (1) of
this subsection may apply to the Administrator of the Environmental
Protection Agency for a waiver of the provisions of the first
sentence of paragraph (2) of this subsection. The Administrator is
authorized to grant such waiver if, in his discretion, such waiver
would not unreasonably interfere with the attainment of the
purposes and provisions of this chapter. The Administrator shall
promulgate rules and regulations regarding such a waiver so as to
inform parties of the proper application procedure and conditions
for approval of such a waiver.
(4) Notwithstanding the provisions of this subsection, the
Administrator of the Environmental Protection Agency may in his
discretion require any such person to retain any record identified
pursuant to paragraph (1) of this subsection for such a time period
in excess of the period specified in paragraph (2) of this
subsection as the Administrator determines to be necessary to
protect the public health or welfare.
(e) Applicability to registered pesticide product
This section shall not apply to the application of a pesticide
product registered under the Federal Insecticide, Fungicide, and
Rodenticide Act [7 U.S.C. 136 et seq.] or to the handling and
storage of such a pesticide product by an agricultural producer.
(f) Exemptions from notice and penalty provisions for substances
reported under other Federal law or is in continuous release,
etc.
No notification shall be required under subsection (a) or (b) of
this section for any release of a hazardous substance -
(1) which is required to be reported (or specifically exempted
from a requirement for reporting) under subtitle C of the Solid
Waste Disposal Act [42 U.S.C. 6921 et seq.] or regulations
thereunder and which has been reported to the National Response
Center, or
(2) which is a continuous release, stable in quantity and rate,
and is -
(A) from a facility for which notification has been given
under subsection (c) of this section, or
(B) a release of which notification has been given under
subsections (a) and (b) of this section for a period sufficient
to establish the continuity, quantity, and regularity of such
release:
Provided, That notification in accordance with subsections (a)
and (b) of this paragraph shall be given for releases subject to
this paragraph annually, or at such time as there is any
statistically significant increase in the quantity of any
hazardous substance or constituent thereof released, above that
previously reported or occurring.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 103, Dec. 11, 1980, 94 Stat. 2772;
Pub. L. 96-561, title II, Sec. 238(b), Dec. 22, 1980, 94 Stat.
3300; Pub. L. 99-499, title I, Secs. 103, 109(a)(1), (2), Oct. 17,
1986, 100 Stat. 1617, 1632, 1633; Pub. L. 104-208, div. A, title I,
Sec. 101(a) [title II, Sec. 211(b)], Sept. 30, 1996, 110 Stat.
3009, 3009-41.)
-REFTEXT-
REFERENCES IN TEXT
The Clean Water Act, referred to in subsec. (a), is act June 30,
1948, ch. 758, as amended generally by Pub. L. 92-500, Sec. 2, Oct.
18, 1972, 86 Stat. 816, also known as the Federal Water Pollution
Control Act, which is classified generally to chapter 26 (Sec. 1251
et seq.) of Title 33, Navigation and Navigable Waters. For complete
classification of this Act to the Code, see Short Title note set
out under section 1251 of Title 33 and Tables.
The Magnuson-Stevens Fishery Conservation and Management Act,
referred to in subsec. (b)(2), is Pub. L. 94-265, Apr. 13, 1976, 90
Stat. 331, as amended, which is classified principally to chapter
38 (Sec. 1801 et seq.) of Title 16, Conservation. For complete
classification of this Act to the Code, see Short Title note set
out under section 1801 of Title 16 and Tables.
The Solid Waste Disposal Act, referred to in subsecs. (c) and
(f)(1), is title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997,
as amended generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90
Stat. 2795. Subtitle C of the Solid Waste Disposal Act is
classified generally to subchapter III (Sec. 6921 et seq.) of
chapter 82 of this title. For complete classification of this Act
to the Code, see Short Title note set out under section 6901 of
this title and Tables.
The Federal Insecticide, Fungicide, and Rodenticide Act, referred
to in subsec. (e), is act June 25, 1947, ch. 125, as amended
generally by Pub. L. 92-516, Oct. 21, 1972, 86 Stat. 973, which is
classified generally to subchapter II (Sec. 136 et seq.) of chapter
6 of Title 7, Agriculture. For complete classification of this Act
to the Code, see Short Title note set out under section 136 of
Title 7 and Tables.
-MISC1-
AMENDMENTS
1996 - Subsec. (b)(2). Pub. L. 104-208 substituted
"Magnuson-Stevens Fishery" for "Magnuson Fishery".
1986 - Subsec. (b). Pub. L. 99-499, Secs. 103, 109(a), adjusted
left hand margin of text following "federally permitted release,"
third place appearing so that there is no indentation of that text,
inserted "or who submits in such a notification any information
which he knows to be false or misleading", and substituted "in
accordance with the applicable provisions of title 18 or imprisoned
for not more than 3 years (or not more than 5 years in the case of
a second or subsequent conviction), or both" for "not more than
$10,000 or imprisoned for not more than one year, or both" and
"subsection" for "paragraph".
Subsec. (d)(2). Pub. L. 99-499, Sec. 109(a)(2), substituted "in
accordance with the applicable provisions of title 18 or imprisoned
for not more than 3 years (or not more than 5 years in the case of
a second or subsequent conviction), or both" for "not more than
$20,000, or imprisoned for not more than one year, or both" as the
probable intent of Congress, notwithstanding directory language
that the substitution be made for "not more than $20,000, or
imprisoned for not more than one year or both".
1980 - Subsec. (b)(2). Pub. L. 96-561 substituted "Magnuson
Fishery Conservation and Management Act" for "Fishery Conservation
and Management Act of 1976".
EFFECTIVE DATE OF 1996 AMENDMENT
Section 101(a) [title II, Sec. 211(b)] of div. A of Pub. L.
104-208 provided that the amendment made by that section is
effective 15 days after Oct. 11, 1996.
EFFECTIVE DATE OF 1980 AMENDMENT
Section 238(b) of Pub. L. 96-561 provided that the amendment made
by that section is effective 15 days after Dec. 22, 1980.
-EXEC-
CONTIGUOUS ZONE OF UNITED STATES
For extension of contiguous zone of United States, see Proc. No.
7219, set out as a note under section 1331 of Title 43, Public
Lands.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 6937, 6991a, 9602, 9609,
9620, 9626, 11004 of this title.
-End-
-CITE-
42 USC Sec. 9604 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9604. Response authorities
-STATUTE-
(a) Removal and other remedial action by President; applicability
of national contingency plan; response by potentially responsible
parties; public health threats; limitations on response;
exception
(1) Whenever (A) any hazardous substance is released or there is
a substantial threat of such a release into the environment, or (B)
there is a release or substantial threat of release into the
environment of any pollutant or contaminant which may present an
imminent and substantial danger to the public health or welfare,
the President is authorized to act, consistent with the national
contingency plan, to remove or arrange for the removal of, and
provide for remedial action relating to such hazardous substance,
pollutant, or contaminant at any time (including its removal from
any contaminated natural resource), or take any other response
measure consistent with the national contingency plan which the
President deems necessary to protect the public health or welfare
or the environment. When the President determines that such action
will be done properly and promptly by the owner or operator of the
facility or vessel or by any other responsible party, the President
may allow such person to carry out the action, conduct the remedial
investigation, or conduct the feasibility study in accordance with
section 9622 of this title. No remedial investigation or
feasibility study (RI/FS) shall be authorized except on a
determination by the President that the party is qualified to
conduct the RI/FS and only if the President contracts with or
arranges for a qualified person to assist the President in
overseeing and reviewing the conduct of such RI/FS and if the
responsible party agrees to reimburse the Fund for any cost
incurred by the President under, or in connection with, the
oversight contract or arrangement. In no event shall a potentially
responsible party be subject to a lesser standard of liability,
receive preferential treatment, or in any other way, whether direct
or indirect, benefit from any such arrangements as a response
action contractor, or as a person hired or retained by such a
response action contractor, with respect to the release or facility
in question. The President shall give primary attention to those
releases which the President deems may present a public health
threat.
(2) Removal Action. - Any removal action undertaken by the
President under this subsection (or by any other person referred to
in section 9622 of this title) should, to the extent the President
deems practicable, contribute to the efficient performance of any
long term remedial action with respect to the release or threatened
release concerned.
(3) Limitations on Response. - The President shall not provide
for a removal or remedial action under this section in response to
a release or threat of release -
(A) of a naturally occurring substance in its unaltered form,
or altered solely through naturally occurring processes or
phenomena, from a location where it is naturally found;
(B) from products which are part of the structure of, and
result in exposure within, residential buildings or business or
community structures; or
(C) into public or private drinking water supplies due to
deterioration of the system through ordinary use.
(4) Exception to Limitations. - Notwithstanding paragraph (3) of
this subsection, to the extent authorized by this section, the
President may respond to any release or threat of release if in the
President's discretion, it constitutes a public health or
environmental emergency and no other person with the authority and
capability to respond to the emergency will do so in a timely
manner.
(b) Investigations, monitoring, coordination, etc., by President
(1) Information; studies and investigations
Whenever the President is authorized to act pursuant to
subsection (a) of this section, or whenever the President has
reason to believe that a release has occurred or is about to
occur, or that illness, disease, or complaints thereof may be
attributable to exposure to a hazardous substance, pollutant, or
contaminant and that a release may have occurred or be occurring,
he may undertake such investigations, monitoring, surveys,
testing, and other information gathering as he may deem necessary
or appropriate to identify the existence and extent of the
release or threat thereof, the source and nature of the hazardous
substances, pollutants or contaminants involved, and the extent
of danger to the public health or welfare or to the environment.
In addition, the President may undertake such planning, legal,
fiscal, economic, engineering, architectural, and other studies
or investigations as he may deem necessary or appropriate to plan
and direct response actions, to recover the costs thereof, and to
enforce the provisions of this chapter.
(2) Coordination of investigations
The President shall promptly notify the appropriate Federal and
State natural resource trustees of potential damages to natural
resources resulting from releases under investigation pursuant to
this section and shall seek to coordinate the assessments,
investigations, and planning under this section with such Federal
and State trustees.
(c) Criteria for continuance of obligations from Fund over
specified amount for response actions; consultation by President
with affected States; contracts or cooperative agreements by
States with President prior to remedial actions; cost-sharing
agreements; selection by President of remedial actions; State
credits: granting of credit, expenses before listing or
agreement, response actions between 1978 and 1980, State expenses
after December 11, 1980, in excess of 10 percent of costs,
item-by-item approval, use of credits; operation and maintenance;
limitation on source of funds for O&M; recontracting; siting
(1) Unless (A) the President finds that (i) continued response
actions are immediately required to prevent, limit, or mitigate an
emergency, (ii) there is an immediate risk to public health or
welfare or the environment, and (iii) such assistance will not
otherwise be provided on a timely basis, or (B) the President has
determined the appropriate remedial actions pursuant to paragraph
(2) of this subsection and the State or States in which the source
of the release is located have complied with the requirements of
paragraph (3) of this subsection, or (C) continued response action
is otherwise appropriate and consistent with the remedial action to
be taken )1(! obligations from the Fund, other than those
authorized by subsection (b) of this section, shall not continue
after $2,000,000 has been obligated for response actions or 12
months has elapsed from the date of initial response to a release
or threatened release of hazardous substances.
(2) The President shall consult with the affected State or States
before determining any appropriate remedial action to be taken
pursuant to the authority granted under subsection (a) of this
section.
(3) The President shall not provide any remedial actions pursuant
to this section unless the State in which the release occurs first
enters into a contract or cooperative agreement with the President
providing assurances deemed adequate by the President that (A) the
State will assure all future maintenance of the removal and
remedial actions provided for the expected life of such actions as
determined by the President; (B) the State will assure the
availability of a hazardous waste disposal facility acceptable to
the President and in compliance with the requirements of subtitle C
of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.] for any
necessary offsite storage, destruction, treatment, or secure
disposition of the hazardous substances; and (C) the State will pay
or assure payment of (i) 10 per centum of the costs of the remedial
action, including all future maintenance, or (ii) 50 percent (or
such greater amount as the President may determine appropriate,
taking into account the degree of responsibility of the State or
political subdivision for the release) of any sums expended in
response to a release at a facility, that was operated by the State
or a political subdivision thereof, either directly or through a
contractual relationship or otherwise, at the time of any disposal
of hazardous substances therein. For the purpose of clause (ii) of
this subparagraph, the term "facility" does not include navigable
waters or the beds underlying those waters. In the case of remedial
action to be taken on land or water held by an Indian tribe, held
by the United States in trust for Indians, held by a member of an
Indian tribe (if such land or water is subject to a trust
restriction on alienation), or otherwise within the borders of an
Indian reservation, the requirements of this paragraph for
assurances regarding future maintenance and cost-sharing shall not
apply, and the President shall provide the assurance required by
this paragraph regarding the availability of a hazardous waste
disposal facility.
(4) Selection of Remedial Action. - The President shall select
remedial actions to carry out this section in accordance with
section 9621 of this title (relating to cleanup standards).
(5) State Credits. -
(A) Granting of credit. - The President shall grant a State a
credit against the share of the costs, for which it is
responsible under paragraph (3) with respect to a facility listed
on the National Priorities List under the National Contingency
Plan, for amounts expended by a State for remedial action at such
facility pursuant to a contract or cooperative agreement with the
President. The credit under this paragraph shall be limited to
those State expenses which the President determines to be
reasonable, documented, direct out-of-pocket expenditures of
non-Federal funds.
(B) Expenses before listing or agreement. - The credit under
this paragraph shall include expenses for remedial action at a
facility incurred before the listing of the facility on the
National Priorities List or before a contract or cooperative
agreement is entered into under subsection (d) of this section
for the facility if -
(i) after such expenses are incurred the facility is listed
on such list and a contract or cooperative agreement is entered
into for the facility, and
(ii) the President determines that such expenses would have
been credited to the State under subparagraph (A) had the
expenditures been made after listing of the facility on such
list and after the date on which such contract or cooperative
agreement is entered into.
(C) Response actions between 1978 and 1980. - The credit under
this paragraph shall include funds expended or obligated by the
State or a political subdivision thereof after January 1, 1978,
and before December 11, 1980, for cost-eligible response actions
and claims for damages compensable under section 9611 of this
title.
(D) State expenses after december 11, 1980, in excess of 10
percent of costs. - The credit under this paragraph shall include
90 percent of State expenses incurred at a facility owned, but
not operated, by such State or by a political subdivision
thereof. Such credit applies only to expenses incurred pursuant
to a contract or cooperative agreement under subsection (d) of
this section and only to expenses incurred after December 11,
1980, but before October 17, 1986.
(E) Item-by-item approval. - In the case of expenditures made
after October 17, 1986, the President may require prior approval
of each item of expenditure as a condition of granting a credit
under this paragraph.
(F) Use of credits. - Credits granted under this paragraph for
funds expended with respect to a facility may be used by the
State to reduce all or part of the share of costs otherwise
required to be paid by the State under paragraph (3) in
connection with remedial actions at such facility. If the amount
of funds for which credit is allowed under this paragraph exceeds
such share of costs for such facility, the State may use the
amount of such excess to reduce all or part of the share of such
costs at other facilities in that State. A credit shall not
entitle the State to any direct payment.
(6) Operation and Maintenance. - For the purposes of paragraph
(3) of this subsection, in the case of ground or surface water
contamination, completed remedial action includes the completion of
treatment or other measures, whether taken onsite or offsite,
necessary to restore ground and surface water quality to a level
that assures protection of human health and the environment. With
respect to such measures, the operation of such measures for a
period of up to 10 years after the construction or installation and
commencement of operation shall be considered remedial action.
Activities required to maintain the effectiveness of such measures
following such period or the completion of remedial action,
whichever is earlier, shall be considered operation or maintenance.
(7) Limitation on Source of Funds for O&M. - During any period
after the availability of funds received by the Hazardous Substance
Superfund established under subchapter A of chapter 98 of title 26
from tax revenues or appropriations from general revenues, the
Federal share of the payment of the cost of operation or
maintenance pursuant to paragraph (3)(C)(i) or paragraph (6) of
this subsection (relating to operation and maintenance) shall be
from funds received by the Hazardous Substance Superfund from
amounts recovered on behalf of such fund under this chapter.
(8) Recontracting. - The President is authorized to undertake or
continue whatever interim remedial actions the President determines
to be appropriate to reduce risks to public health or the
environment where the performance of a complete remedial action
requires recontracting because of the discovery of sources, types,
or quantities of hazardous substances not known at the time of
entry into the original contract. The total cost of interim actions
undertaken at a facility pursuant to this paragraph shall not
exceed $2,000,000.
(9) Siting. - Effective 3 years after October 17, 1986, the
President shall not provide any remedial actions pursuant to this
section unless the State in which the release occurs first enters
into a contract or cooperative agreement with the President
providing assurances deemed adequate by the President that the
State will assure the availability of hazardous waste treatment or
disposal facilities which -
(A) have adequate capacity for the destruction, treatment, or
secure disposition of all hazardous wastes that are reasonably
expected to be generated within the State during the 20-year
period following the date of such contract or cooperative
agreement and to be disposed of, treated, or destroyed,
(B) are within the State or outside the State in accordance
with an interstate agreement or regional agreement or authority,
(C) are acceptable to the President, and
(D) are in compliance with the requirements of subtitle C of
the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.].
(d) Contracts or cooperative agreements by President with States or
political subdivisions or Indian tribes; State applications,
terms and conditions; reimbursements; cost-sharing provisions;
enforcement requirements and procedures
(1) Cooperative Agreements. -
(A) State applications. - A State or political subdivision
thereof or Indian tribe may apply to the President to carry out
actions authorized in this section. If the President determines
that the State or political subdivision or Indian tribe has the
capability to carry out any or all of such actions in accordance
with the criteria and priorities established pursuant to section
9605(a)(8) of this title and to carry out related enforcement
actions, the President may enter into a contract or cooperative
agreement with the State or political subdivision or Indian tribe
to carry out such actions. The President shall make a
determination regarding such an application within 90 days after
the President receives the application.
(B) Terms and conditions. - A contract or cooperative agreement
under this paragraph shall be subject to such terms and
conditions as the President may prescribe. The contract or
cooperative agreement may cover a specific facility or specific
facilities.
(C) Reimbursements. - Any State which expended funds during the
period beginning September 30, 1985, and ending on October 17,
1986, for response actions at any site included on the National
Priorities List and subject to a cooperative agreement under this
chapter shall be reimbursed for the share of costs of such
actions for which the Federal Government is responsible under
this chapter.
(2) If the President enters into a cost-sharing agreement
pursuant to subsection (c) of this section or a contract or
cooperative agreement pursuant to this subsection, and the State or
political subdivision thereof fails to comply with any requirements
of the contract, the President may, after providing sixty days
notice, seek in the appropriate Federal district court to enforce
the contract or to recover any funds advanced or any costs incurred
because of the breach of the contract by the State or political
subdivision.
(3) Where a State or a political subdivision thereof is acting in
behalf of the President, the President is authorized to provide
technical and legal assistance in the administration and
enforcement of any contract or subcontract in connection with
response actions assisted under this subchapter, and to intervene
in any civil action involving the enforcement of such contract or
subcontract.
(4) Where two or more noncontiguous facilities are reasonably
related on the basis of geography, or on the basis of the threat,
or potential threat to the public health or welfare or the
environment, the President may, in his discretion, treat these
related facilities as one for purposes of this section.
(e) Information gathering and access
(1) Action authorized
Any officer, employee, or representative of the President, duly
designated by the President, is authorized to take action under
paragraph (2), (3), or (4) (or any combination thereof) at a
vessel, facility, establishment, place, property, or location or,
in the case of paragraph (3) or (4), at any vessel, facility,
establishment, place, property, or location which is adjacent to
the vessel, facility, establishment, place, property, or location
referred to in such paragraph (3) or (4). Any duly designated
officer, employee, or representative of a State or political
subdivision under a contract or cooperative agreement under
subsection (d)(1) of this section is also authorized to take such
action. The authority of paragraphs (3) and (4) may be exercised
only if there is a reasonable basis to believe there may be a
release or threat of release of a hazardous substance or
pollutant or contaminant. The authority of this subsection may be
exercised only for the purposes of determining the need for
response, or choosing or taking any response action under this
subchapter, or otherwise enforcing the provisions of this
subchapter.
(2) Access to information
Any officer, employee, or representative described in paragraph
(1) may require any person who has or may have information
relevant to any of the following to furnish, upon reasonable
notice, information or documents relating to such matter:
(A) The identification, nature, and quantity of materials
which have been or are generated, treated, stored, or disposed
of at a vessel or facility or transported to a vessel or
facility.
(B) The nature or extent of a release or threatened release
of a hazardous substance or pollutant or contaminant at or from
a vessel or facility.
(C) Information relating to the ability of a person to pay
for or to perform a cleanup.
In addition, upon reasonable notice, such person either (i) shall
grant any such officer, employee, or representative access at all
reasonable times to any vessel, facility, establishment, place,
property, or location to inspect and copy all documents or
records relating to such matters or (ii) shall copy and furnish
to the officer, employee, or representative all such documents or
records, at the option and expense of such person.
(3) Entry
Any officer, employee, or representative described in paragraph
(1) is authorized to enter at reasonable times any of the
following:
(A) Any vessel, facility, establishment, or other place or
property where any hazardous substance or pollutant or
contaminant may be or has been generated, stored, treated,
disposed of, or transported from.
(B) Any vessel, facility, establishment, or other place or
property from which or to which a hazardous substance or
pollutant or contaminant has been or may have been released.
(C) Any vessel, facility, establishment, or other place or
property where such release is or may be threatened.
(D) Any vessel, facility, establishment, or other place or
property where entry is needed to determine the need for
response or the appropriate response or to effectuate a
response action under this subchapter.
(4) Inspection and samples
(A) Authority
Any officer, employee or representative described in
paragraph (1) is authorized to inspect and obtain samples from
any vessel, facility, establishment, or other place or property
referred to in paragraph (3) or from any location of any
suspected hazardous substance or pollutant or contaminant. Any
such officer, employee, or representative is authorized to
inspect and obtain samples of any containers or labeling for
suspected hazardous substances or pollutants or contaminants.
Each such inspection shall be completed with reasonable
promptness.
(B) Samples
If the officer, employee, or representative obtains any
samples, before leaving the premises he shall give to the
owner, operator, tenant, or other person in charge of the place
from which the samples were obtained a receipt describing the
sample obtained and, if requested, a portion of each such
sample. A copy of the results of any analysis made of such
samples shall be furnished promptly to the owner, operator,
tenant, or other person in charge, if such person can be
located.
(5) Compliance orders
(A) Issuance
If consent is not granted regarding any request made by an
officer, employee, or representative under paragraph (2), (3),
or (4), the President may issue an order directing compliance
with the request. The order may be issued after such notice and
opportunity for consultation as is reasonably appropriate under
the circumstances.
(B) Compliance
The President may ask the Attorney General to commence a
civil action to compel compliance with a request or order
referred to in subparagraph (A). Where there is a reasonable
basis to believe there may be a release or threat of a release
of a hazardous substance or pollutant or contaminant, the court
shall take the following actions:
(i) In the case of interference with entry or inspection,
the court shall enjoin such interference or direct compliance
with orders to prohibit interference with entry or inspection
unless under the circumstances of the case the demand for
entry or inspection is arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance with law.
(ii) In the case of information or document requests or
orders, the court shall enjoin interference with such
information or document requests or orders or direct
compliance with the requests or orders to provide such
information or documents unless under the circumstances of
the case the demand for information or documents is arbitrary
and capricious, an abuse of discretion, or otherwise not in
accordance with law.
The court may assess a civil penalty not to exceed $25,000 for
each day of noncompliance against any person who unreasonably
fails to comply with the provisions of paragraph (2), (3), or
(4) or an order issued pursuant to subparagraph (A) of this
paragraph.
(6) Other authority
Nothing in this subsection shall preclude the President from
securing access or obtaining information in any other lawful
manner.
(7) Confidentiality of information
(A) Any records, reports, or information obtained from any
person under this section (including records, reports, or
information obtained by representatives of the President) shall
be available to the public, except that upon a showing
satisfactory to the President (or the State, as the case may be)
by any person that records, reports, or information, or
particular part thereof (other than health or safety effects
data), to which the President (or the State, as the case may be)
or any officer, employee, or representative has access under this
section if made public would divulge information entitled to
protection under section 1905 of title 18, such information or
particular portion thereof shall be considered confidential in
accordance with the purposes of that section, except that such
record, report, document or information may be disclosed to other
officers, employees, or authorized representatives of the United
States concerned with carrying out this chapter, or when relevant
in any proceeding under this chapter.
(B) Any person not subject to the provisions of section 1905 of
title 18 who knowingly and willfully divulges or discloses any
information entitled to protection under this subsection shall,
upon conviction, be subject to a fine of not more than $5,000 or
to imprisonment not to exceed one year, or both.
(C) In submitting data under this chapter, a person required to
provide such data may (i) designate the data which such person
believes is entitled to protection under this subsection and (ii)
submit such designated data separately from other data submitted
under this chapter. A designation under this paragraph shall be
made in writing and in such manner as the President may prescribe
by regulation.
(D) Notwithstanding any limitation contained in this section or
any other provision of law, all information reported to or
otherwise obtained by the President (or any representative of the
President) under this chapter shall be made available, upon
written request of any duly authorized committee of the Congress,
to such committee.
(E) No person required to provide information under this
chapter may claim that the information is entitled to protection
under this paragraph unless such person shows each of the
following:
(i) Such person has not disclosed the information to any
other person, other than a member of a local emergency planning
committee established under title III of the Amendments and
Reauthorization Act of 1986 [42 U.S.C. 11001 et seq.], an
officer or employee of the United States or a State or local
government, an employee of such person, or a person who is
bound by a confidentiality agreement, and such person has taken
reasonable measures to protect the confidentiality of such
information and intends to continue to take such measures.
(ii) The information is not required to be disclosed, or
otherwise made available, to the public under any other Federal
or State law.
(iii) Disclosure of the information is likely to cause
substantial harm to the competitive position of such person.
(iv) The specific chemical identity, if sought to be
protected, is not readily discoverable through reverse
engineering.
(F) The following information with respect to any hazardous
substance at the facility or vessel shall not be entitled to
protection under this paragraph:
(i) The trade name, common name, or generic class or category
of the hazardous substance.
(ii) The physical properties of the substance, including its
boiling point, melting point, flash point, specific gravity,
vapor density, solubility in water, and vapor pressure at 20
degrees celsius.
(iii) The hazards to health and the environment posed by the
substance, including physical hazards (such as explosion) and
potential acute and chronic health hazards.
(iv) The potential routes of human exposure to the substance
at the facility, establishment, place, or property being
investigated, entered, or inspected under this subsection.
(v) The location of disposal of any waste stream.
(vi) Any monitoring data or analysis of monitoring data
pertaining to disposal activities.
(vii) Any hydrogeologic or geologic data.
(viii) Any groundwater monitoring data.
(f) Contracts for response actions; compliance with Federal health
and safety standards
In awarding contracts to any person engaged in response actions,
the President or the State, in any case where it is awarding
contracts pursuant to a contract entered into under subsection (d)
of this section, shall require compliance with Federal health and
safety standards established under section 9651(f) of this title by
contractors and subcontractors as a condition of such contracts.
(g) Rates for wages and labor standards applicable to covered work
(1) All laborers and mechanics employed by contractors or
subcontractors in the performance of construction, repair, or
alteration work funded in whole or in part under this section shall
be paid wages at rates not less than those prevailing on projects
of a character similar in the locality as determined by the
Secretary of Labor in accordance with sections 3141-3144, 3146, and
3147 of title 40. The President shall not approve any such funding
without first obtaining adequate assurance that required labor
standards will be maintained upon the construction work.
(2) The Secretary of Labor shall have, with respect to the labor
standards specified in paragraph (1), the authority and functions
set forth in Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176;
64 Stat. 1267) and section 3145 of title 40.
(h) Emergency procurement powers; exercise by President
Notwithstanding any other provision of law, subject to the
provisions of section 9611 of this title, the President may
authorize the use of such emergency procurement powers as he deems
necessary to effect the purpose of this chapter. Upon determination
that such procedures are necessary, the President shall promulgate
regulations prescribing the circumstances under which such
authority shall be used and the procedures governing the use of
such authority.
(i) Agency for Toxic Substances and Disease Registry;
establishment, functions, etc.
(1) There is hereby established within the Public Health Service
an agency, to be known as the Agency for Toxic Substances and
Disease Registry, which shall report directly to the Surgeon
General of the United States. The Administrator of said Agency
shall, with the cooperation of the Administrator of the
Environmental Protection Agency, the Commissioner of the Food and
Drug Administration, the Directors of the National Institute of
Medicine, National Institute of Environmental Health Sciences,
National Institute of Occupational Safety and Health, Centers for
Disease Control and Prevention, the Administrator of the
Occupational Safety and Health Administration, the Administrator of
the Social Security Administration, the Secretary of
Transportation, and appropriate State and local health officials,
effectuate and implement the health related authorities of this
chapter. In addition, said Administrator shall -
(A) in cooperation with the States, establish and maintain a
national registry of serious diseases and illnesses and a
national registry of persons exposed to toxic substances;
(B) establish and maintain inventory of literature, research,
and studies on the health effects of toxic substances;
(C) in cooperation with the States, and other agencies of the
Federal Government, establish and maintain a complete listing of
areas closed to the public or otherwise restricted in use because
of toxic substance contamination;
(D) in cases of public health emergencies caused or believed to
be caused by exposure to toxic substances, provide medical care
and testing to exposed individuals, including but not limited to
tissue sampling, chromosomal testing where appropriate,
epidemiological studies, or any other assistance appropriate
under the circumstances; and
(E) either independently or as part of other health status
survey, conduct periodic survey and screening programs to
determine relationships between exposure to toxic substances and
illness. In cases of public health emergencies, exposed persons
shall be eligible for admission to hospitals and other facilities
and services operated or provided by the Public Health Service.
(2)(A) Within 6 months after October 17, 1986, the Administrator
of the Agency for Toxic Substances and Disease Registry (ATSDR) and
the Administrator of the Environmental Protection Agency ("EPA")
shall prepare a list, in order of priority, of at least 100
hazardous substances which are most commonly found at facilities on
the National Priorities List and which, in their sole discretion,
they determine are posing the most significant potential threat to
human health due to their known or suspected toxicity to humans and
the potential for human exposure to such substances at facilities
on the National Priorities List or at facilities to which a
response to a release or a threatened release under this section is
under consideration.
(B) Within 24 months after October 17, 1986, the Administrator of
ATSDR and the Administrator of EPA shall revise the list prepared
under subparagraph (A). Such revision shall include, in order of
priority, the addition of 100 or more such hazardous substances. In
each of the 3 consecutive 12-month periods that follow, the
Administrator of ATSDR and the Administrator of EPA shall revise,
in the same manner as provided in the 2 preceding sentences, such
list to include not fewer than 25 additional hazardous substances
per revision. The Administrator of ATSDR and the Administrator of
EPA shall not less often than once every year thereafter revise
such list to include additional hazardous substances in accordance
with the criteria in subparagraph (A).
(3) Based on all available information, including information
maintained under paragraph (1)(B) and data developed and collected
on the health effects of hazardous substances under this paragraph,
the Administrator of ATSDR shall prepare toxicological profiles of
each of the substances listed pursuant to paragraph (2). The
toxicological profiles shall be prepared in accordance with
guidelines developed by the Administrator of ATSDR and the
Administrator of EPA. Such profiles shall include, but not be
limited to each of the following:
(A) An examination, summary, and interpretation of available
toxicological information and epidemiologic evaluations on a
hazardous substance in order to ascertain the levels of
significant human exposure for the substance and the associated
acute, subacute, and chronic health effects.
(B) A determination of whether adequate information on the
health effects of each substance is available or in the process
of development to determine levels of exposure which present a
significant risk to human health of acute, subacute, and chronic
health effects.
(C) Where appropriate, an identification of toxicological
testing needed to identify the types or levels of exposure that
may present significant risk of adverse health effects in humans.
Any toxicological profile or revision thereof shall reflect the
Administrator of ATSDR's assessment of all relevant toxicological
testing which has been peer reviewed. The profiles required to be
prepared under this paragraph for those hazardous substances listed
under subparagraph (A) of paragraph (2) shall be completed, at a
rate of no fewer than 25 per year, within 4 years after October 17,
1986. A profile required on a substance listed pursuant to
subparagraph (B) of paragraph (2) shall be completed within 3 years
after addition to the list. The profiles prepared under this
paragraph shall be of those substances highest on the list of
priorities under paragraph (2) for which profiles have not
previously been prepared. Profiles required under this paragraph
shall be revised and republished as necessary, but no less often
than once every 3 years. Such profiles shall be provided to the
States and made available to other interested parties.
(4) The Administrator of the ATSDR shall provide consultations
upon request on health issues relating to exposure to hazardous or
toxic substances, on the basis of available information, to the
Administrator of EPA, State officials, and local officials. Such
consultations to individuals may be provided by States under
cooperative agreements established under this chapter.
(5)(A) For each hazardous substance listed pursuant to paragraph
(2), the Administrator of ATSDR (in consultation with the
Administrator of EPA and other agencies and programs of the Public
Health Service) shall assess whether adequate information on the
health effects of such substance is available. For any such
substance for which adequate information is not available (or under
development), the Administrator of ATSDR, in cooperation with the
Director of the National Toxicology Program, shall assure the
initiation of a program of research designed to determine the
health effects (and techniques for development of methods to
determine such health effects) of such substance. Where feasible,
such program shall seek to develop methods to determine the health
effects of such substance in combination with other substances with
which it is commonly found. Before assuring the initiation of such
program, the Administrator of ATSDR shall consider recommendations
of the Interagency Testing Committee established under section 4(e)
of the Toxic Substances Control Act [15 U.S.C. 2603(e)] on the
types of research that should be done. Such program shall include,
to the extent necessary to supplement existing information, but
shall not be limited to -
(i) laboratory and other studies to determine short,
intermediate, and long-term health effects;
(ii) laboratory and other studies to determine organ-specific,
site-specific, and system-specific acute and chronic toxicity;
(iii) laboratory and other studies to determine the manner in
which such substances are metabolized or to otherwise develop an
understanding of the biokinetics of such substances; and
(iv) where there is a possibility of obtaining human data, the
collection of such information.
(B) In assessing the need to perform laboratory and other
studies, as required by subparagraph (A), the Administrator of
ATSDR shall consider -
(i) the availability and quality of existing test data
concerning the substance on the suspected health effect in
question;
(ii) the extent to which testing already in progress will, in a
timely fashion, provide data that will be adequate to support the
preparation of toxicological profiles as required by paragraph
(3); and
(iii) such other scientific and technical factors as the
Administrator of ATSDR may determine are necessary for the
effective implementation of this subsection.
(C) In the development and implementation of any research program
under this paragraph, the Administrator of ATSDR and the
Administrator of EPA shall coordinate such research program
implemented under this paragraph with the National Toxicology
Program and with programs of toxicological testing established
under the Toxic Substances Control Act [15 U.S.C. 2601 et seq.] and
the Federal Insecticide, Fungicide and Rodenticide Act [7 U.S.C.
136 et seq.]. The purpose of such coordination shall be to avoid
duplication of effort and to assure that the hazardous substances
listed pursuant to this subsection are tested thoroughly at the
earliest practicable date. Where appropriate, consistent with such
purpose, a research program under this paragraph may be carried out
using such programs of toxicological testing.
(D) It is the sense of the Congress that the costs of research
programs under this paragraph be borne by the manufacturers and
processors of the hazardous substance in question, as required in
programs of toxicological testing under the Toxic Substances
Control Act [15 U.S.C. 2601 et seq.]. Within 1 year after October
17, 1986, the Administrator of EPA shall promulgate regulations
which provide, where appropriate, for payment of such costs by
manufacturers and processors under the Toxic Substances Control
Act, and registrants under the Federal Insecticide, Fungicide, and
Rodenticide Act [7 U.S.C. 136 et seq.], and recovery of such costs
from responsible parties under this chapter.
(6)(A) The Administrator of ATSDR shall perform a health
assessment for each facility on the National Priorities List
established under section 9605 of this title. Such health
assessment shall be completed not later than December 10, 1988, for
each facility proposed for inclusion on such list prior to October
17, 1986, or not later than one year after the date of proposal for
inclusion on such list for each facility proposed for inclusion on
such list after October 17, 1986.
(B) The Administrator of ATSDR may perform health assessments for
releases or facilities where individual persons or licensed
physicians provide information that individuals have been exposed
to a hazardous substance, for which the probable source of such
exposure is a release. In addition to other methods (formal or
informal) of providing such information, such individual persons or
licensed physicians may submit a petition to the Administrator of
ATSDR providing such information and requesting a health
assessment. If such a petition is submitted and the Administrator
of ATSDR does not initiate a health assessment, the Administrator
of ATSDR shall provide a written explanation of why a health
assessment is not appropriate.
(C) In determining the priority in which to conduct health
assessments under this subsection, the Administrator of ATSDR, in
consultation with the Administrator of EPA, shall give priority to
those facilities at which there is documented evidence of the
release of hazardous substances, at which the potential risk to
human health appears highest, and for which in the judgment of the
Administrator of ATSDR existing health assessment data are
inadequate to assess the potential risk to human health as provided
in subparagraph (F). In determining the priorities for conducting
health assessments under this subsection, the Administrator of
ATSDR shall consider the National Priorities List schedules and the
needs of the Environmental Protection Agency and other Federal
agencies pursuant to schedules for remedial investigation and
feasibility studies.
(D) Where a health assessment is done at a site on the National
Priorities List, the Administrator of ATSDR shall complete such
assessment promptly and, to the maximum extent practicable, before
the completion of the remedial investigation and feasibility study
at the facility concerned.
(E) Any State or political subdivision carrying out a health
assessment for a facility shall report the results of the
assessment to the Administrator of ATSDR and the Administrator of
EPA and shall include recommendations with respect to further
activities which need to be carried out under this section. The
Administrator of ATSDR shall state such recommendation in any
report on the results of any assessment carried out directly by the
Administrator of ATSDR for such facility and shall issue periodic
reports which include the results of all the assessments carried
out under this subsection.
(F) For the purposes of this subsection and section 9611(c)(4) of
this title, the term "health assessments" shall include preliminary
assessments of the potential risk to human health posed by
individual sites and facilities, based on such factors as the
nature and extent of contamination, the existence of potential
pathways of human exposure (including ground or surface water
contamination, air emissions, and food chain contamination), the
size and potential susceptibility of the community within the
likely pathways of exposure, the comparison of expected human
exposure levels to the short-term and long-term health effects
associated with identified hazardous substances and any available
recommended exposure or tolerance limits for such hazardous
substances, and the comparison of existing morbidity and mortality
data on diseases that may be associated with the observed levels of
exposure. The Administrator of ATSDR shall use appropriate data,
risk assessments, risk evaluations and studies available from the
Administrator of EPA.
(G) The purpose of health assessments under this subsection shall
be to assist in determining whether actions under paragraph (11) of
this subsection should be taken to reduce human exposure to
hazardous substances from a facility and whether additional
information on human exposure and associated health risks is needed
and should be acquired by conducting epidemiological studies under
paragraph (7), establishing a registry under paragraph (8),
establishing a health surveillance program under paragraph (9), or
through other means. In using the results of health assessments for
determining additional actions to be taken under this section, the
Administrator of ATSDR may consider additional information on the
risks to the potentially affected population from all sources of
such hazardous substances including known point or nonpoint sources
other than those from the facility in question.
(H) At the completion of each health assessment, the
Administrator of ATSDR shall provide the Administrator of EPA and
each affected State with the results of such assessment, together
with any recommendations for further actions under this subsection
or otherwise under this chapter. In addition, if the health
assessment indicates that the release or threatened release
concerned may pose a serious threat to human health or the
environment, the Administrator of ATSDR shall so notify the
Administrator of EPA who shall promptly evaluate such release or
threatened release in accordance with the hazard ranking system
referred to in section 9605(a)(8)(A) of this title to determine
whether the site shall be placed on the National Priorities List
or, if the site is already on the list, the Administrator of ATSDR
may recommend to the Administrator of EPA that the site be accorded
a higher priority.
(7)(A) Whenever in the judgment of the Administrator of ATSDR it
is appropriate on the basis of the results of a health assessment,
the Administrator of ATSDR shall conduct a pilot study of health
effects for selected groups of exposed individuals in order to
determine the desirability of conducting full scale epidemiological
or other health studies of the entire exposed population.
(B) Whenever in the judgment of the Administrator of ATSDR it is
appropriate on the basis of the results of such pilot study or
other study or health assessment, the Administrator of ATSDR shall
conduct such full scale epidemiological or other health studies as
may be necessary to determine the health effects on the population
exposed to hazardous substances from a release or threatened
release. If a significant excess of disease in a population is
identified, the letter of transmittal of such study shall include
an assessment of other risk factors, other than a release, that
may, in the judgment of the peer review group, be associated with
such disease, if such risk factors were not taken into account in
the design or conduct of the study.
(8) In any case in which the results of a health assessment
indicate a potential significant risk to human health, the
Administrator of ATSDR shall consider whether the establishment of
a registry of exposed persons would contribute to accomplishing the
purposes of this subsection, taking into account circumstances
bearing on the usefulness of such a registry, including the
seriousness or unique character of identified diseases or the
likelihood of population migration from the affected area.
(9) Where the Administrator of ATSDR has determined that there is
a significant increased risk of adverse health effects in humans
from exposure to hazardous substances based on the results of a
health assessment conducted under paragraph (6), an epidemiologic
study conducted under paragraph (7), or an exposure registry that
has been established under paragraph (8), and the Administrator of
ATSDR has determined that such exposure is the result of a release
from a facility, the Administrator of ATSDR shall initiate a health
surveillance program for such population. This program shall
include but not be limited to -
(A) periodic medical testing where appropriate of population
subgroups to screen for diseases for which the population or
subgroup is at significant increased risk; and
(B) a mechanism to refer for treatment those individuals within
such population who are screened positive for such diseases.
(10) Two years after October 17, 1986, and every 2 years
thereafter, the Administrator of ATSDR shall prepare and submit to
the Administrator of EPA and to the Congress a report on the
results of the activities of ATSDR regarding -
(A) health assessments and pilot health effects studies
conducted;
(B) epidemiologic studies conducted;
(C) hazardous substances which have been listed under paragraph
(2), toxicological profiles which have been developed, and
toxicologic testing which has been conducted or which is being
conducted under this subsection;
(D) registries established under paragraph (8); and
(E) an overall assessment, based on the results of activities
conducted by the Administrator of ATSDR, of the linkage between
human exposure to individual or combinations of hazardous
substances due to releases from facilities covered by this
chapter or the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.]
and any increased incidence or prevalence of adverse health
effects in humans.
(11) If a health assessment or other study carried out under this
subsection contains a finding that the exposure concerned presents
a significant risk to human health, the President shall take such
steps as may be necessary to reduce such exposure and eliminate or
substantially mitigate the significant risk to human health. Such
steps may include the use of any authority under this chapter,
including, but not limited to -
(A) provision of alternative water supplies, and
(B) permanent or temporary relocation of individuals.
In any case in which information is insufficient, in the judgment
of the Administrator of ATSDR or the President to determine a
significant human exposure level with respect to a hazardous
substance, the President may take such steps as may be necessary to
reduce the exposure of any person to such hazardous substance to
such level as the President deems necessary to protect human
health.
(12) In any case which is the subject of a petition, a health
assessment or study, or a research program under this subsection,
nothing in this subsection shall be construed to delay or otherwise
affect or impair the authority of the President, the Administrator
of ATSDR, or the Administrator of EPA to exercise any authority
vested in the President, the Administrator of ATSDR or the
Administrator of EPA under any other provision of law (including,
but not limited to, the imminent hazard authority of section 7003
of the Solid Waste Disposal Act [42 U.S.C. 6973]) or the response
and abatement authorities of this chapter.
(13) All studies and results of research conducted under this
subsection (other than health assessments) shall be reported or
adopted only after appropriate peer review. Such peer review shall
be completed, to the maximum extent practicable, within a period of
60 days. In the case of research conducted under the National
Toxicology Program, such peer review may be conducted by the Board
of Scientific Counselors. In the case of other research, such peer
review shall be conducted by panels consisting of no less than
three nor more than seven members, who shall be disinterested
scientific experts selected for such purpose by the Administrator
of ATSDR or the Administrator of EPA, as appropriate, on the basis
of their reputation for scientific objectivity and the lack of
institutional ties with any person involved in the conduct of the
study or research under review. Support services for such panels
shall be provided by the Agency for Toxic Substances and Disease
Registry, or by the Environmental Protection Agency, as
appropriate.
(14) In the implementation of this subsection and other
health-related authorities of this chapter, the Administrator of
ATSDR shall assemble, develop as necessary, and distribute to the
States, and upon request to medical colleges, physicians, and other
health professionals, appropriate educational materials (including
short courses) on the medical surveillance, screening, and methods
of diagnosis and treatment of injury or disease related to exposure
to hazardous substances (giving priority to those listed in
paragraph (2)), through such means as the Administrator of ATSDR
deems appropriate.
(15) The activities of the Administrator of ATSDR described in
this subsection and section 9611(c)(4) of this title shall be
carried out by the Administrator of ATSDR, either directly or
through cooperative agreements with States (or political
subdivisions thereof) which the Administrator of ATSDR determines
are capable of carrying out such activities. Such activities shall
include provision of consultations on health information, the
conduct of health assessments, including those required under
section 3019(b) of the Solid Waste Disposal Act [42 U.S.C.
6939a(b)], health studies, registries, and health surveillance.
(16) The President shall provide adequate personnel for ATSDR,
which shall not be fewer than 100 employees. For purposes of
determining the number of employees under this subsection, an
employee employed by ATSDR on a part-time career employment basis
shall be counted as a fraction which is determined by dividing 40
hours into the average number of hours of such employee's regularly
scheduled workweek.
(17) In accordance with section 9620 of this title (relating to
Federal facilities), the Administrator of ATSDR shall have the same
authorities under this section with respect to facilities owned or
operated by a department, agency, or instrumentality of the United
States as the Administrator of ATSDR has with respect to any
nongovernmental entity.
(18) If the Administrator of ATSDR determines that it is
appropriate for purposes of this section to treat a pollutant or
contaminant as a hazardous substance, such pollutant or contaminant
shall be treated as a hazardous substance for such purpose.
(j) Acquisition of property
(1) Authority
The President is authorized to acquire, by purchase, lease,
condemnation, donation, or otherwise, any real property or any
interest in real property that the President in his discretion
determines is needed to conduct a remedial action under this
chapter. There shall be no cause of action to compel the
President to acquire any interest in real property under this
chapter.
(2) State assurance
The President may use the authority of paragraph (1) for a
remedial action only if, before an interest in real estate is
acquired under this subsection, the State in which the interest
to be acquired is located assures the President, through a
contract or cooperative agreement or otherwise, that the State
will accept transfer of the interest following completion of the
remedial action.
(3) Exemption
No Federal, State, or local government agency shall be liable
under this chapter solely as a result of acquiring an interest in
real estate under this subsection.
(k) Brownfields revitalization funding
(1) Definition of eligible entity
In this subsection, the term "eligible entity" means -
(A) a general purpose unit of local government;
(B) a land clearance authority or other quasi-governmental
entity that operates under the supervision and control of or as
an agent of a general purpose unit of local government;
(C) a government entity created by a State legislature;
(D) a regional council or group of general purpose units of
local government;
(E) a redevelopment agency that is chartered or otherwise
sanctioned by a State;
(F) a State;
(G) an Indian Tribe other than in Alaska; or
(H) an Alaska Native Regional Corporation and an Alaska
Native Village Corporation as those terms are defined in the
Alaska Native Claims Settlement Act (43 U.S.C. 1601 and
following) and the Metlakatla Indian community.
(2) Brownfield site characterization and assessment grant program
(A) Establishment of program
The Administrator shall establish a program to -
(i) provide grants to inventory, characterize, assess, and
conduct planning related to brownfield sites under
subparagraph (B); and
(ii) perform targeted site assessments at brownfield sites.
(B) Assistance for site characterization and assessment
(i) In general
On approval of an application made by an eligible entity,
the Administrator may make a grant to the eligible entity to
be used for programs to inventory, characterize, assess, and
conduct planning related to one or more brownfield sites.
(ii) Site characterization and assessment
A site characterization and assessment carried out with the
use of a grant under clause (i) shall be performed in
accordance with section 9601(35)(B) of this title.
(3) Grants and loans for brownfield remediation
(A) Grants provided by the President
Subject to paragraphs (4) and (5), the President shall
establish a program to provide grants to -
(i) eligible entities, to be used for capitalization of
revolving loan funds; and
(ii) eligible entities or nonprofit organizations, where
warranted, as determined by the President based on
considerations under subparagraph (C), to be used directly
for remediation of one or more brownfield sites owned by the
entity or organization that receives the grant and in amounts
not to exceed $200,000 for each site to be remediated.
(B) Loans and grants provided by eligible entities
An eligible entity that receives a grant under subparagraph
(A)(i) shall use the grant funds to provide assistance for the
remediation of brownfield sites in the form of -
(i) one or more loans to an eligible entity, a site owner,
a site developer, or another person; or
(ii) one or more grants to an eligible entity or other
nonprofit organization, where warranted, as determined by the
eligible entity that is providing the assistance, based on
considerations under subparagraph (C), to remediate sites
owned by the eligible entity or nonprofit organization that
receives the grant.
(C) Considerations
In determining whether a grant under subparagraph (A)(ii) or
(B)(ii) is warranted, the President or the eligible entity, as
the case may be, shall take into consideration -
(i) the extent to which a grant will facilitate the
creation of, preservation of, or addition to a park, a
greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes;
(ii) the extent to which a grant will meet the needs of a
community that has an inability to draw on other sources of
funding for environmental remediation and subsequent
redevelopment of the area in which a brownfield site is
located because of the small population or low income of the
community;
(iii) the extent to which a grant will facilitate the use
or reuse of existing infrastructure;
(iv) the benefit of promoting the long-term availability of
funds from a revolving loan fund for brownfield remediation;
and
(v) such other similar factors as the Administrator
considers appropriate to consider for the purposes of this
subsection.
(D) Transition
Revolving loan funds that have been established before
January 11, 2002, may be used in accordance with this
paragraph.
(4) General provisions
(A) Maximum grant amount
(i) Brownfield site characterization and assessment
(I) In general
A grant under paragraph (2) may be awarded to an eligible
entity on a community-wide or site-by-site basis, and shall
not exceed, for any individual brownfield site covered by
the grant, $200,000.
(II) Waiver
The Administrator may waive the $200,000 limitation under
subclause (I) to permit the brownfield site to receive a
grant of not to exceed $350,000, based on the anticipated
level of contamination, size, or status of ownership of the
site.
(ii) Brownfield remediation
A grant under paragraph (3)(A)(i) may be awarded to an
eligible entity on a community-wide or site-by-site basis,
not to exceed $1,000,000 per eligible entity. The
Administrator may make an additional grant to an eligible
entity described in the previous sentence for any year after
the year for which the initial grant is made, taking into
consideration -
(I) the number of sites and number of communities that
are addressed by the revolving loan fund;
(II) the demand for funding by eligible entities that
have not previously received a grant under this subsection;
(III) the demonstrated ability of the eligible entity to
use the revolving loan fund to enhance remediation and
provide funds on a continuing basis; and
(IV) such other similar factors as the Administrator
considers appropriate to carry out this subsection.
(B) Prohibition
(i) In general
No part of a grant or loan under this subsection may be
used for the payment of -
(I) a penalty or fine;
(II) a Federal cost-share requirement;
(III) an administrative cost;
(IV) a response cost at a brownfield site for which the
recipient of the grant or loan is potentially liable under
section 9607 of this title; or
(V) a cost of compliance with any Federal law (including
a Federal law specified in section 9601(39)(B) of this
title), excluding the cost of compliance with laws
applicable to the cleanup.
(ii) Exclusions
For the purposes of clause (i)(III), the term
"administrative cost" does not include the cost of -
(I) investigation and identification of the extent of
contamination;
(II) design and performance of a response action; or
(III) monitoring of a natural resource.
(C) Assistance for development of local government site
remediation programs
A local government that receives a grant under this
subsection may use not to exceed 10 percent of the grant funds
to develop and implement a brownfields program that may include
-
(i) monitoring the health of populations exposed to one or
more hazardous substances from a brownfield site; and
(ii) monitoring and enforcement of any institutional
control used to prevent human exposure to any hazardous
substance from a brownfield site.
(D) Insurance
A recipient of a grant or loan awarded under paragraph (2) or
(3) that performs a characterization, assessment, or
remediation of a brownfield site may use a portion of the grant
or loan to purchase insurance for the characterization,
assessment, or remediation of that site.
(5) Grant applications
(A) Submission
(i) In general
(I) Application
An eligible entity may submit to the Administrator,
through a regional office of the Environmental Protection
Agency and in such form as the Administrator may require,
an application for a grant under this subsection for one or
more brownfield sites (including information on the
criteria used by the Administrator to rank applications
under subparagraph (C), to the extent that the information
is available).
(II) NCP requirements
The Administrator may include in any requirement for
submission of an application under subclause (I) a
requirement of the National Contingency Plan only to the
extent that the requirement is relevant and appropriate to
the program under this subsection.
(ii) Coordination
The Administrator shall coordinate with other Federal
agencies to assist in making eligible entities aware of other
available Federal resources.
(iii) Guidance
The Administrator shall publish guidance to assist eligible
entities in applying for grants under this subsection.
(B) Approval
The Administrator shall -
(i) at least annually, complete a review of applications
for grants that are received from eligible entities under
this subsection; and
(ii) award grants under this subsection to eligible
entities that the Administrator determines have the highest
rankings under the ranking criteria established under
subparagraph (C).
(C) Ranking criteria
The Administrator shall establish a system for ranking grant
applications received under this paragraph that includes the
following criteria:
(i) The extent to which a grant will stimulate the
availability of other funds for environmental assessment or
remediation, and subsequent reuse, of an area in which one or
more brownfield sites are located.
(ii) The potential of the proposed project or the
development plan for an area in which one or more brownfield
sites are located to stimulate economic development of the
area on completion of the cleanup.
(iii) The extent to which a grant would address or
facilitate the identification and reduction of threats to
human health and the environment, including threats in areas
in which there is a greater-than-normal incidence of diseases
or conditions (including cancer, asthma, or birth defects)
that may be associated with exposure to hazardous substances,
pollutants, or contaminants.
(iv) The extent to which a grant would facilitate the use
or reuse of existing infrastructure.
(v) The extent to which a grant would facilitate the
creation of, preservation of, or addition to a park, a
greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes.
(vi) The extent to which a grant would meet the needs of a
community that has an inability to draw on other sources of
funding for environmental remediation and subsequent
redevelopment of the area in which a brownfield site is
located because of the small population or low income of the
community.
(vii) The extent to which the applicant is eligible for
funding from other sources.
(viii) The extent to which a grant will further the fair
distribution of funding between urban and nonurban areas.
(ix) The extent to which the grant provides for involvement
of the local community in the process of making decisions
relating to cleanup and future use of a brownfield site.
(x) The extent to which a grant would address or facilitate
the identification and reduction of threats to the health or
welfare of children, pregnant women, minority or low-income
communities, or other sensitive populations.
(6) Implementation of brownfields programs
(A) Establishment of program
The Administrator may provide, or fund eligible entities or
nonprofit organizations to provide, training, research, and
technical assistance to individuals and organizations, as
appropriate, to facilitate the inventory of brownfield sites,
site assessments, remediation of brownfield sites, community
involvement, or site preparation.
(B) Funding restrictions
The total Federal funds to be expended by the Administrator
under this paragraph shall not exceed 15 percent of the total
amount appropriated to carry out this subsection in any fiscal
year.
(7) Audits
(A) In general
The Inspector General of the Environmental Protection Agency
shall conduct such reviews or audits of grants and loans under
this subsection as the Inspector General considers necessary to
carry out this subsection.
(B) Procedure
An audit under this subparagraph shall be conducted in
accordance with the auditing procedures of the General
Accounting Office, including chapter 75 of title 31.
(C) Violations
If the Administrator determines that a person that receives a
grant or loan under this subsection has violated or is in
violation of a condition of the grant, loan, or applicable
Federal law, the Administrator may -
(i) terminate the grant or loan;
(ii) require the person to repay any funds received; and
(iii) seek any other legal remedies available to the
Administrator.
(D) Report to Congress
Not later than 3 years after January 11, 2002, the Inspector
General of the Environmental Protection Agency shall submit to
Congress a report that provides a description of the management
of the program (including a description of the allocation of
funds under this subsection).
(8) Leveraging
An eligible entity that receives a grant under this subsection
may use the grant funds for a portion of a project at a
brownfield site for which funding is received from other sources
if the grant funds are used only for the purposes described in
paragraph (2) or (3).
(9) Agreements
Each grant or loan made under this subsection shall -
(A) include a requirement of the National Contingency Plan
only to the extent that the requirement is relevant and
appropriate to the program under this subsection, as determined
by the Administrator; and
(B) be subject to an agreement that -
(i) requires the recipient to -
(I) comply with all applicable Federal and State laws;
and
(II) ensure that the cleanup protects human health and
the environment;
(ii) requires that the recipient use the grant or loan
exclusively for purposes specified in paragraph (2) or (3),
as applicable;
(iii) in the case of an application by an eligible entity
under paragraph (3)(A), requires the eligible entity to pay a
matching share (which may be in the form of a contribution of
labor, material, or services) of at least 20 percent, from
non-Federal sources of funding, unless the Administrator
determines that the matching share would place an undue
hardship on the eligible entity; and
(iv) contains such other terms and conditions as the
Administrator determines to be necessary to carry out this
subsection.
(10) Facility other than brownfield site
The fact that a facility may not be a brownfield site within
the meaning of section 9601(39)(A) of this title has no effect on
the eligibility of the facility for assistance under any other
provision of Federal law.
(11) Effect on Federal laws
Nothing in this subsection affects any liability or response
authority under any Federal law, including -
(A) this chapter (including the last sentence of section
9601(14) of this title);
(B) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);
(C) the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.);
(D) the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.); and
(E) the Safe Drinking Water Act (42 U.S.C. 300f et seq.).
(12) Funding
(A) Authorization of appropriations
There is authorized to be appropriated to carry out this
subsection $200,000,000 for each of fiscal years 2002 through
2006.
(B) Use of certain funds
Of the amount made available under subparagraph (A),
$50,000,000, or, if the amount made available is less than
$200,000,000, 25 percent of the amount made available, shall be
used for site characterization, assessment, and remediation of
facilities described in section 9601(39)(D)(ii)(II) of this
title.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 104, Dec. 11, 1980, 94 Stat. 2774;
Pub. L. 99-499, title I, Secs. 104, 110, title II, Sec. 207(b),
Oct. 17, 1986, 100 Stat. 1617, 1636, 1705; Pub. L. 99-514, Sec. 2,
Oct. 22, 1986, 100 Stat. 2095; Pub. L. 102-531, title III, Sec.
312(h), Oct. 27, 1992, 106 Stat. 3506; Pub. L. 107-118, title II,
Sec. 211(b), Jan. 11, 2002, 115 Stat. 2362.)
-REFTEXT-
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsecs. (c)(3),
(9)(D), (i)(10)(E), and (k)(11)(B), is title II of Pub. L. 89-272,
Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L.
94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795, which is classified
generally to chapter 82 (Sec. 6901 et seq.) of this title. Subtitle
C of the Act is classified generally to subchapter III (Sec. 6921
et seq.) of chapter 82 of this title. For complete classification
of this Act to the Code, see Short Title note set out under section
6901 of this title and Tables.
Title III of the Amendments and Reauthorization Act of 1986,
referred to in subsec. (e)(7)(E)(i), probably means title III of
the Superfund Amendments and Reauthorization Act of 1986, Pub. L.
99-499, Oct. 17, 1986, 100 Stat. 1728, known as the Emergency
Planning and Community Right-To-Know Act of 1986, which is
classified generally to chapter 116 (Sec. 11001 et seq.) of this
title. For complete classification of title III to the Code, see
Short Title note set out under section 11001 of this title and
Tables.
Reorganization Plan Numbered 14 of 1950, referred to in subsec.
(g)(2), is set out in the Appendix to Title 5, Government
Organization and Employees.
The Toxic Substances Control Act, referred to in subsecs.
(i)(5)(C), (D) and (k)(11)(D), is Pub. L. 94-469, Oct. 11, 1976, 90
Stat. 2003, as amended, which is classified generally to chapter 53
(Sec. 2601 et seq.) of Title 15, Commerce and Trade. For complete
classification of this Act to the Code, see Short Title note set
out under section 2601 of Title 15 and Tables.
The Federal Insecticide, Fungicide, and Rodenticide Act, referred
to in subsec. (i)(5)(C), (D), is act June 25, 1947, ch. 125, as
amended generally by Pub. L. 92-516, Oct. 21, 1972, 86 Stat. 973,
which is classified generally to subchapter II (Sec. 136 et seq.)
of chapter 6 of Title 7, Agriculture. For complete classification
of this Act to the Code, see Short Title note set out under section
136 of Title 7 and Tables.
The Alaska Native Claims Settlement Act, referred to in subsec.
(k)(1)(H), is Pub. L. 92-203, Dec. 18, 1971, 85 Stat. 688, as
amended, which is classified generally to chapter 33 (Sec. 1601 et
seq.) of Title 43, Public Lands. For complete classification of
this Act to the Code, see Short Title note set out under section
1601 of Title 43 and Tables.
The Federal Water Pollution Control Act, referred to in subsec.
(k)(11)(C), is act June 30, 1948, ch. 758, as amended generally by
Pub. L. 92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 816, which is
classified generally to chapter 26 (Sec. 1251 et seq.) of Title 33,
Navigation and Navigable Waters. For complete classification of
this Act to the Code, see Short Title note set out under section
1251 of Title 33 and Tables.
The Safe Drinking Water Act, referred to in subsec. (k)(11)(E),
is title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L.
93-523, Sec. 2(a), 88 Stat. 1660, as amended, which is classified
generally to subchapter XII (Sec. 300f et seq.) of chapter 6A of
this title. For complete classification of this Act to the Code,
see Short Title note set out under section 201 of this title and
Tables.
-COD-
CODIFICATION
In subsec. (g)(1), "sections 3141-3144, 3146, and 3147 of title
40" substituted for "the Davis-Bacon Act" and, in subsec. (g)(2),
"section 3145 of title 40" substituted for "section 276c of title
40 of the United States Code", on authority of Pub. L. 107-217,
Sec. 5(c), Aug. 21, 2002, 116 Stat. 1303, the first section of
which enacted Title 40, Public Buildings, Property, and Works.
-MISC1-
AMENDMENTS
2002 - Subsec. (k). Pub. L. 107-118 added subsec. (k).
1992 - Subsec. (i)(1). Pub. L. 102-531 substituted "Centers for
Disease Control and Prevention" for "Centers for Disease Control".
1986 - Subsec. (a)(1). Pub. L. 99-499, Sec. 104(a), substituted
provisions authorizing the President to allow owner or operator of
facility or vessel or any other responsible party to carry out
action, conduct the remedial investigation, or conduct feasibility
study under section 9622 of this title, specifying conditions under
which a remedial investigation or feasibility study would be
authorized, providing for treatment of potentially responsible
parties, and requiring President to give primary attention to those
releases which the President deems may present a public health
threat, for ", unless the President determines that such removal
and remedial action will be done properly by the owner or operator
of the vessel or facility from which the release or threat of
release emanates, or by any other responsible party."
Subsec. (a)(2). Pub. L. 99-499, Sec. 104(b), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: "For the
purposes of this section, 'pollutant or contaminant' shall include,
but not be limited to, any element, substance, compound, or
mixture, including disease-causing agents, which after release into
the environment and upon exposure, ingestion, inhalation, or
assimilation into any organism, either directly from the
environment or indirectly by ingestion through food chains, will or
may reasonably be anticipated to cause death, disease, behavioral
abnormalities, cancer, genetic mutation, physiological malfunctions
(including malfunctions in reproduction) or physical deformations,
in such organisms or their offspring. The term does not include
petroleum, including crude oil and any fraction thereof which is
not otherwise specifically listed or designated as hazardous
substances under section 9601(14)(A) through (F) of this title, nor
does it include natural gas, liquefied natural gas, or synthetic
gas of pipeline quality (or mixtures of natural gas and such
synthetic gas)."
Subsec. (a)(3), (4). Pub. L. 99-499, Sec. 104(c), added pars. (3)
and (4).
Subsec. (b). Pub. L. 99-499, Sec. 104(d), designated existing
provisions as par. (1), inserted par. (1) heading, and added par.
(2).
Subsec. (c)(1). Pub. L. 99-499, Sec. 104(e)(1), substituted
"$2,000,000" for "$1,000,000" and "12 months" for "six months".
Subsec. (c)(1)(C). Pub. L. 99-499, Sec. 104(e)(2), added cl. (C).
Subsec. (c)(3). Pub. L. 99-499, Secs. 104(f), 207(b), substituted
text of cl. (C)(ii) and sentence providing that "facility" does not
include navigable waters or beds underlying those waters for "(ii)
at least 50 per centum or such greater amount as the President may
determine appropriate, taking into account the degree of
responsibility of the State or political subdivision, of any sums
expended in response to a release at a facility that was owned at
the time of any disposal of hazardous substances therein by the
State or a political subdivision thereof. The President shall grant
the State a credit against the share of the costs for which it is
responsible under this paragraph for any documented direct
out-of-pocket non-Federal funds expended or obligated by the State
or a political subdivision thereof after January 1, 1978, and
before December 11, 1980, for cost-eligible response actions and
claims for damages compensable under section 9611 of this title
relating to the specific release in question: Provided, however,
That in no event shall the amount of the credit granted exceed the
total response costs relating to the release." and inserted
provisions relating to remedial action to be taken on land or water
held by an Indian tribe, held by the United States in trust for
Indians, held by a member of an Indian Tribe (if such land or water
is subject to a trust restriction on alienation), or otherwise
within the borders of an Indian reservation.
Subsec. (c)(4). Pub. L. 99-499, Sec. 104(g), amended par. (4)
generally. Prior to amendment, par. (4) read as follows: "The
President shall select appropriate remedial actions determined to
be necessary to carry out this section which are to the extent
practicable in accordance with the national contingency plan and
which provide for that cost-effective response which provides a
balance between the need for protection of public health and
welfare and the environment at the facility under consideration,
and the availability of amounts from the Fund established under
subchapter II of this chapter to respond to other sites which
present or may present a threat to public health or welfare or the
environment, taking into consideration the need for immediate
action."
Subsec. (c)(5). Pub. L. 99-499, Sec. 104(h), added par. (5).
Subsec. (c)(6). Pub. L. 99-499, Sec. 104(i), added par. (6).
Subsec. (c)(7). Pub. L. 99-514 substituted "Internal Revenue Code
of 1986" for "Internal Revenue Code of 1954", which for purposes of
codification was translated as "title 26" thus requiring no change
in text.
Pub. L. 99-499, Sec. 104(i), added par. (7).
Subsec. (c)(8). Pub. L. 99-499, Sec. 104(j), added par. (8).
Subsec. (c)(9). Pub. L. 99-499, Sec. 104(k), added par. (9).
Subsec. (d)(1). Pub. L. 99-499, Sec. 104(l), amended par. (1)
generally. Prior to amendment, par. (1) read as follows: "Where the
President determines that a State or political subdivision thereof
has the capability to carry out any or all of the actions
authorized in this section, the President may, in his discretion,
enter into a contract or cooperative agreement with such State or
political subdivision to take such actions in accordance with
criteria and priorities established pursuant to section 9605(8) of
this title and to be reimbursed for the reasonable response costs
thereof from the Fund. Any contract made hereunder shall be subject
to the cost-sharing provisions of subsection (c) of this section."
Subsec. (e)(1). Pub. L. 99-499, Sec. 104(m), added par. (1), and
struck out former par. (1) which provided for access to, and
copying of, records relating to covered substances, and entry by
officers, employees or representatives of the President or a State
into places where hazardous substances were or had been generated,
stored, treated or disposed of, or transported from, and inspection
and obtaining of samples of such substances and samples of
containers or labeling for such substances.
Subsec. (e)(2) to (6). Pub. L. 99-499, Sec. 104(m), added pars.
(2) to (6). Former par. (2) redesignated (7).
Subsec. (e)(7). Pub. L. 99-499, Sec. 104(m), (n), redesignated
par. (2) as (7), aligned margin of par. (7) with pars. (1) through
(6), and added par. heading and subpars. (E) and (F).
Subsec. (i). Pub. L. 99-499, Sec. 110, designated existing
provisions as par. (1), redesignated former pars. (1) to (5) as
subpars. (A) to (E), respectively, of par. (1), in introductory
provisions of par. (1), struck out "and" after "Health
Administration," and inserted "the Secretary of Transportation, and
appropriate State and local health officials," in par. (1)(D),
inserted "where appropriate", and added pars. (2) to (18).
Subsec. (j). Pub. L. 99-499, Sec. 104(o)(1), added subsec. (j).
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions in subsec.
(i)(10) of this section relating to the requirement that the
Administrator of ATSDR submit a biennial report to Congress, see
section 3003 of Pub. L. 104-66, as amended, set out as a note under
section 1113 of Title 31, Money and Finance, and the 13th item on
page 154 of House Document No. 103-7.
COORDINATION OF TITLES I TO IV OF PUB. L. 99-499
Any provision of titles I to IV of Pub. L. 99-499, imposing any
tax, premium, or fee; establishing any trust fund; or authorizing
expenditures from any trust fund, to have no force or effect, see
section 531 of Pub. L. 99-499, set out as a note under section 1 of
Title 26, Internal Revenue Code.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 6924, 6939a, 6939b, 6972,
9601, 9607, 9609, 9611, 9613, 9617, 9618, 9619, 9620, 9621, 9622,
9626, 9628, 9660, 9661 of this title; title 10 section 2704; title
26 section 198.
-FOOTNOTE-
)1(! So in original. Probably should be followed by a comma.
-End-
-CITE-
42 USC Sec. 9605 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9605. National contingency plan
-STATUTE-
(a) Revision and republication
Within one hundred and eighty days after December 11, 1980, the
President shall, after notice and opportunity for public comments,
revise and republish the national contingency plan for the removal
of oil and hazardous substances, originally prepared and published
pursuant to section 1321 of title 33, to reflect and effectuate the
responsibilities and powers created by this chapter, in addition to
those matters specified in section 1321(c)(2) )1(! of title 33.
Such revision shall include a section of the plan to be known as
the national hazardous substance response plan which shall
establish procedures and standards for responding to releases of
hazardous substances, pollutants, and contaminants, which shall
include at a minimum:
(1) methods for discovering and investigating facilities at
which hazardous substances have been disposed of or otherwise
come to be located;
(2) methods for evaluating, including analyses of relative
cost, and remedying any releases or threats of releases from
facilities which pose substantial danger to the public health or
the environment;
(3) methods and criteria for determining the appropriate extent
of removal, remedy, and other measures authorized by this
chapter;
(4) appropriate roles and responsibilities for the Federal,
State, and local governments and for interstate and
nongovernmental entities in effectuating the plan;
(5) provision for identification, procurement, maintenance, and
storage of response equipment and supplies;
(6) a method for and assignment of responsibility for reporting
the existence of such facilities which may be located on
federally owned or controlled properties and any releases of
hazardous substances from such facilities;
(7) means of assuring that remedial action measures are
cost-effective over the period of potential exposure to the
hazardous substances or contaminated materials;
(8)(A) criteria for determining priorities among releases or
threatened releases throughout the United States for the purpose
of taking remedial action and, to the extent practicable taking
into account the potential urgency of such action, for the
purpose of taking removal action. Criteria and priorities under
this paragraph shall be based upon relative risk or danger to
public health or welfare or the environment, in the judgment of
the President, taking into account to the extent possible the
population at risk, the hazard potential of the hazardous
substances at such facilities, the potential for contamination of
drinking water supplies, the potential for direct human contact,
the potential for destruction of sensitive ecosystems, the damage
to natural resources which may affect the human food chain and
which is associated with any release or threatened release, the
contamination or potential contamination of the ambient air which
is associated with the release or threatened release, State
preparedness to assume State costs and responsibilities, and
other appropriate factors;
(B) based upon the criteria set forth in subparagraph (A) of
this paragraph, the President shall list as part of the plan
national priorities among the known releases or threatened
releases throughout the United States and shall revise the list
no less often than annually. Within one year after December 11,
1980, and annually thereafter, each State shall establish and
submit for consideration by the President priorities for remedial
action among known releases and potential releases in that State
based upon the criteria set forth in subparagraph (A) of this
paragraph. In assembling or revising the national list, the
President shall consider any priorities established by the
States. To the extent practicable, the highest priority
facilities shall be designated individually and shall be referred
to as the "top priority among known response targets", and, to
the extent practicable, shall include among the one hundred
highest priority facilities one such facility from each State
which shall be the facility designated by the State as presenting
the greatest danger to public health or welfare or the
environment among the known facilities in such State. A State
shall be allowed to designate its highest priority facility only
once. Other priority facilities or incidents may be listed singly
or grouped for response priority purposes;
(9) specified roles for private organizations and entities in
preparation for response and in responding to releases of
hazardous substances, including identification of appropriate
qualifications and capacity therefor and including consideration
of minority firms in accordance with subsection (f) of this
section; and
(10) standards and testing procedures by which alternative or
innovative treatment technologies can be determined to be
appropriate for utilization in response actions authorized by
this chapter.
The plan shall specify procedures, techniques, materials,
equipment, and methods to be employed in identifying, removing, or
remedying releases of hazardous substances comparable to those
required under section 1321(c)(2)(F) and (G) and (j)(1) of title
33. Following publication of the revised national contingency plan,
the response to and actions to minimize damage from hazardous
substances releases shall, to the greatest extent possible, be in
accordance with the provisions of the plan. The President may, from
time to time, revise and republish the national contingency plan.
(b) Revision of plan
Not later than 18 months after the enactment of the Superfund
Amendments and Reauthorization Act of 1986 [October 17, 1986], the
President shall revise the National Contingency Plan to reflect the
requirements of such amendments. The portion of such Plan known as
"the National Hazardous Substance Response Plan" shall be revised
to provide procedures and standards for remedial actions undertaken
pursuant to this chapter which are consistent with amendments made
by the Superfund Amendments and Reauthorization Act of 1986
relating to the selection of remedial action.
(c) Hazard ranking system
(1) Revision
Not later than 18 months after October 17, 1986, and after
publication of notice and opportunity for submission of comments
in accordance with section 553 of title 5, the President shall by
rule promulgate amendments to the hazard ranking system in effect
on September 1, 1984. Such amendments shall assure, to the
maximum extent feasible, that the hazard ranking system
accurately assesses the relative degree of risk to human health
and the environment posed by sites and facilities subject to
review. The President shall establish an effective date for the
amended hazard ranking system which is not later than 24 months
after October 17, 1986. Such amended hazard ranking system shall
be applied to any site or facility to be newly listed on the
National Priorities List after the effective date established by
the President. Until such effective date of the regulations, the
hazard ranking system in effect on September 1, 1984, shall
continue in full force and effect.
(2) Health assessment of water contamination risks
In carrying out this subsection, the President shall ensure
that the human health risks associated with the contamination or
potential contamination (either directly or as a result of the
runoff of any hazardous substance or pollutant or contaminant
from sites or facilities) of surface water are appropriately
assessed where such surface water is, or can be, used for
recreation or potable water consumption. In making the assessment
required pursuant to the preceding sentence, the President shall
take into account the potential migration of any hazardous
substance or pollutant or contaminant through such surface water
to downstream sources of drinking water.
(3) Reevaluation not required
The President shall not be required to reevaluate, after
October 17, 1986, the hazard ranking of any facility which was
evaluated in accordance with the criteria under this section
before the effective date of the amendments to the hazard ranking
system under this subsection and which was assigned a national
priority under the National Contingency Plan.
(4) New information
Nothing in paragraph (3) shall preclude the President from
taking new information into account in undertaking response
actions under this chapter.
(d) Petition for assessment of release
Any person who is, or may be, affected by a release or threatened
release of a hazardous substance or pollutant or contaminant, may
petition the President to conduct a preliminary assessment of the
hazards to public health and the environment which are associated
with such release or threatened release. If the President has not
previously conducted a preliminary assessment of such release, the
President shall, within 12 months after the receipt of any such
petition, complete such assessment or provide an explanation of why
the assessment is not appropriate. If the preliminary assessment
indicates that the release or threatened release concerned may pose
a threat to human health or the environment, the President shall
promptly evaluate such release or threatened release in accordance
with the hazard ranking system referred to in paragraph (8)(A) of
subsection (a) of this section to determine the national priority
of such release or threatened release.
(e) Releases from earlier sites
Whenever there has been, after January 1, 1985, a significant
release of hazardous substances or pollutants or contaminants from
a site which is listed by the President as a "Site Cleaned Up To
Date" on the National Priorities List (revised edition, December
1984) the site shall be restored to the National Priorities List,
without application of the hazard ranking system.
(f) Minority contractors
In awarding contracts under this chapter, the President shall
consider the availability of qualified minority firms. The
President shall describe, as part of any annual report submitted to
the Congress under this chapter, the participation of minority
firms in contracts carried out under this chapter. Such report
shall contain a brief description of the contracts which have been
awarded to minority firms under this chapter and of the efforts
made by the President to encourage the participation of such firms
in programs carried out under this chapter.
(g) Special study wastes
(1) Application
This subsection applies to facilities -
(A) which as of October 17, 1986, were not included on, or
proposed for inclusion on, the National Priorities List; and
(B) at which special study wastes described in paragraph (2),
(3)(A)(ii) or (3)(A)(iii) of section 6921(b) of this title are
present in significant quantities, including any such facility
from which there has been a release of a special study waste.
(2) Considerations in adding facilities to NPL
Pending revision of the hazard ranking system under subsection
(c) of this section, the President shall consider each of the
following factors in adding facilities covered by this section to
the National Priorities List:
(A) The extent to which hazard ranking system score for the
facility is affected by the presence of any special study waste
at, or any release from, such facility.
(B) Available information as to the quantity, toxicity, and
concentration of hazardous substances that are constituents of
any special study waste at, or released from such facility, the
extent of or potential for release of such hazardous
constituents, the exposure or potential exposure to human
population and the environment, and the degree of hazard to
human health or the environment posed by the release of such
hazardous constituents at such facility. This subparagraph
refers only to available information on actual concentrations
of hazardous substances and not on the total quantity of
special study waste at such facility.
(3) Savings provisions
Nothing in this subsection shall be construed to limit the
authority of the President to remove any facility which as of
October 17, 1986, is included on the National Priorities List
from such List, or not to list any facility which as of such date
is proposed for inclusion on such list.
(4) Information gathering and analysis
Nothing in this chapter shall be construed to preclude the
expenditure of monies from the Fund for gathering and analysis of
information which will enable the President to consider the
specific factors required by paragraph (2).
(h) NPL deferral
(1) Deferral to State voluntary cleanups
At the request of a State and subject to paragraphs (2) and
(3), the President generally shall defer final listing of an
eligible response site on the National Priorities List if the
President determines that -
(A) the State, or another party under an agreement with or
order from the State, is conducting a response action at the
eligible response site -
(i) in compliance with a State program that specifically
governs response actions for the protection of public health
and the environment; and
(ii) that will provide long-term protection of human health
and the environment; or
(B) the State is actively pursuing an agreement to perform a
response action described in subparagraph (A) at the site with
a person that the State has reason to believe is capable of
conducting a response action that meets the requirements of
subparagraph (A).
(2) Progress toward cleanup
If, after the last day of the 1-year period beginning on the
date on which the President proposes to list an eligible response
site on the National Priorities List, the President determines
that the State or other party is not making reasonable progress
toward completing a response action at the eligible response
site, the President may list the eligible response site on the
National Priorities List.
(3) Cleanup agreements
With respect to an eligible response site under paragraph
(1)(B), if, after the last day of the 1-year period beginning on
the date on which the President proposes to list the eligible
response site on the National Priorities List, an agreement
described in paragraph (1)(B) has not been reached, the President
may defer the listing of the eligible response site on the
National Priorities List for an additional period of not to
exceed 180 days if the President determines deferring the listing
would be appropriate based on -
(A) the complexity of the site;
(B) substantial progress made in negotiations; and
(C) other appropriate factors, as determined by the
President.
(4) Exceptions
The President may decline to defer, or elect to discontinue a
deferral of, a listing of an eligible response site on the
National Priorities List if the President determines that -
(A) deferral would not be appropriate because the State, as
an owner or operator or a significant contributor of hazardous
substances to the facility, is a potentially responsible party;
(B) the criteria under the National Contingency Plan for
issuance of a health advisory have been met; or
(C) the conditions in paragraphs (1) through (3), as
applicable, are no longer being met.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 105, Dec. 11, 1980, 94 Stat. 2779;
Pub. L. 99-499, title I, Sec. 105, Oct. 17, 1986, 100 Stat. 1625;
Pub. L. 107-118, title II, Sec. 232, Jan. 11, 2002, 115 Stat.
2379.)
-REFTEXT-
REFERENCES IN TEXT
Section 1321(c)(2) of title 33, referred to in subsec. (a), was
amended generally by Pub. L. 101-380, title IV, Sec. 4201(a), Aug.
18, 1990, 104 Stat. 523. Prior to general amendment, subsec. (c)(2)
related to preparation of a National Contingency Plan. Provisions
relating to a National Contingency Plan are contained in section
1321(d) of Title 33, Navigation and Navigable Waters.
Such amendments and the amendments made by the Superfund
Amendments and Reauthorization Act of 1986, referred to in subsec.
(b), are the amendments made by Pub. L. 99-499, Oct. 17, 1986, 100
Stat. 1613. For complete classification of this Act to the Code,
see Short Title of 1986 Amendment note set out under section 9601
of this title and Tables.
-MISC1-
AMENDMENTS
2002 - Subsec. (h). Pub. L. 107-118 added subsec. (h).
1986 - Subsec. (a). Pub. L. 99-499, Sec. 105(a)(1), designated
existing provisions as subsec. (a) and added heading.
Subsec. (a)(8)(A). Pub. L. 99-499, Sec. 105(a)(2), inserted "the
damage to natural resources which may affect the human food chain
and which is associated with any release or threatened release, the
contamination or potential contamination of the ambient air which
is associated with the release or threatened release," after
"ecosystems,".
Subsec. (a)(8)(B). Pub. L. 99-499, Sec. 105(a)(3), struck out "at
least four hundred of" after "To the extent practicable,",
substituted "one hundred highest priority facilities" for "one
hundred highest priority facilities at least", and inserted "A
State shall be allowed to designate its highest priority facility
only once."
Subsec. (a)(9). Pub. L. 99-499, Sec. 105(a)(4), inserted "and
including consideration of minority firms in accordance with
subsection (f) of this section".
Subsec. (a)(10). Pub. L. 99-499, Sec. 105(a)(5), added par. (10).
Subsecs. (b) to (g). Pub. L. 99-499, Sec. 105(b), added subsecs.
(b) to (g).
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9601, 9604, 9607, 9611,
9616, 9620, 9622, 9626, 9651, 11003 of this title; title 26
sections 198, 468; title 33 section 2701; title 49 sections 5102,
5115.
-FOOTNOTE-
)1(! See References in Text note below.
-End-
-CITE-
42 USC Sec. 9606 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9606. Abatement actions
-STATUTE-
(a) Maintenance, jurisdiction, etc.
In addition to any other action taken by a State or local
government, when the President determines that there may be an
imminent and substantial endangerment to the public health or
welfare or the environment because of an actual or threatened
release of a hazardous substance from a facility, he may require
the Attorney General of the United States to secure such relief as
may be necessary to abate such danger or threat, and the district
court of the United States in the district in which the threat
occurs shall have jurisdiction to grant such relief as the public
interest and the equities of the case may require. The President
may also, after notice to the affected State, take other action
under this section including, but not limited to, issuing such
orders as may be necessary to protect public health and welfare and
the environment.
(b) Fines; reimbursement
(1) Any person who, without sufficient cause, willfully violates,
or fails or refuses to comply with, any order of the President
under subsection (a) of this section may, in an action brought in
the appropriate United States district court to enforce such order,
be fined not more than $25,000 for each day in which such violation
occurs or such failure to comply continues.
(2)(A) Any person who receives and complies with the terms of any
order issued under subsection (a) of this section may, within 60
days after completion of the required action, petition the
President for reimbursement from the Fund for the reasonable costs
of such action, plus interest. Any interest payable under this
paragraph shall accrue on the amounts expended from the date of
expenditure at the same rate as specified for interest on
investments of the Hazardous Substance Superfund established under
subchapter A of chapter 98 of title 26.
(B) If the President refuses to grant all or part of a petition
made under this paragraph, the petitioner may within 30 days of
receipt of such refusal file an action against the President in the
appropriate United States district court seeking reimbursement from
the Fund.
(C) Except as provided in subparagraph (D), to obtain
reimbursement, the petitioner shall establish by a preponderance of
the evidence that it is not liable for response costs under section
9607(a) of this title and that costs for which it seeks
reimbursement are reasonable in light of the action required by the
relevant order.
(D) A petitioner who is liable for response costs under section
9607(a) of this title may also recover its reasonable costs of
response to the extent that it can demonstrate, on the
administrative record, that the President's decision in selecting
the response action ordered was arbitrary and capricious or was
otherwise not in accordance with law. Reimbursement awarded under
this subparagraph shall include all reasonable response costs
incurred by the petitioner pursuant to the portions of the order
found to be arbitrary and capricious or otherwise not in accordance
with law.
(E) Reimbursement awarded by a court under subparagraph (C) or
(D) may include appropriate costs, fees, and other expenses in
accordance with subsections (a) and (d) of section 2412 of title
28.
(c) Guidelines for using imminent hazard, enforcement, and
emergency response authorities; promulgation by Administrator of
EPA, scope, etc.
Within one hundred and eighty days after December 11, 1980, the
Administrator of the Environmental Protection Agency shall, after
consultation with the Attorney General, establish and publish
guidelines for using the imminent hazard, enforcement, and
emergency response authorities of this section and other existing
statutes administered by the Administrator of the Environmental
Protection Agency to effectuate the responsibilities and powers
created by this chapter. Such guidelines shall to the extent
practicable be consistent with the national hazardous substance
response plan, and shall include, at a minimum, the assignment of
responsibility for coordinating response actions with the issuance
of administrative orders, enforcement of standards and permits, the
gathering of information, and other imminent hazard and emergency
powers authorized by (1) sections 1321(c)(2),)1(! 1318, 1319, and
1364(a) of title 33, (2) sections 6927, 6928, 6934, and 6973 of
this title, (3) sections 300j-4 and 300i of this title, (4)
sections 7413, 7414, and 7603 of this title, and (5) section 2606
of title 15.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 106, Dec. 11, 1980, 94 Stat. 2780;
Pub. L. 99-499, title I, Secs. 106, 109(b), Oct. 17, 1986, 100
Stat. 1628, 1633; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat.
2095.)
-REFTEXT-
REFERENCES IN TEXT
This chapter, referred to in subsec. (c), was in the original
"this Act", meaning Pub. L. 96-510, Dec. 11, 1980, 94 Stat. 2767,
as amended, known as the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, which enacted this
chapter, section 6911a of this title, and sections 4611, 4612,
4661, 4662, 4681, and 4682 of Title 26, Internal Revenue Code,
amended section 6911 of this title, section 1364 of Title 33,
Navigation and Navigable Waters, and section 11901 of Title 49,
Transportation, and enacted provisions set out as notes under
section 6911 of this title and sections 1 and 4611 of Title 26. For
complete classification of this Act to the Code, see Short Title
note set out under section 9601 of this title and Tables.
Section 1321(c)(2) of title 33, referred to in subsec. (c), was
amended generally by Pub. L. 101-380, title IV, Sec. 4201(a), Aug.
18, 1990, 104 Stat. 523. Prior to general amendment, subsec. (c)(2)
related to preparation of a National Contingency Plan. Provisions
relating to a National Contingency Plan are contained in section
1321(d) of Title 33, Navigation and Navigable Waters.
-MISC1-
AMENDMENTS
1986 - Subsec. (b). Pub. L. 99-499 designated existing provisions
as par. (1), substituted "who, without sufficient cause, willfully"
for "who willfully" and "$25,000" for "$5,000", and added par. (2).
Subsec. (b)(2)(A). Pub. L. 99-514 substituted "Internal Revenue
Code of 1986" for "Internal Revenue Code of 1954", which for
purposes of codification was translated as "title 26" thus
requiring no change in text.
COORDINATION OF TITLES I TO IV OF PUB. L. 99-499
Any provision of titles I to IV of Pub. L. 99-499, imposing any
tax, premium, or fee; establishing any trust fund; or authorizing
expenditures from any trust fund, to have no force or effect, see
section 531 of Pub. L. 99-499, set out as a note under section 1 of
Title 26, Internal Revenue Code.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 6924, 6939b, 6972, 7412,
9607, 9613, 9614, 9617, 9618, 9619, 9620, 9621, 9622, 9624, 9628 of
this title; title 26 section 4662.
-FOOTNOTE-
)1(! See References in Text note below.
-End-
-CITE-
42 USC Sec. 9607 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9607. Liability
-STATUTE-
(a) Covered persons; scope; recoverable costs and damages; interest
rate; "comparable maturity" date
Notwithstanding any other provision or rule of law, and subject
only to the defenses set forth in subsection (b) of this section -
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such hazardous
substances were disposed of,
(3) any person who by contract, agreement, or otherwise
arranged for disposal or treatment, or arranged with a
transporter for transport for disposal or treatment, of hazardous
substances owned or possessed by such person, by any other party
or entity, at any facility or incineration vessel owned or
operated by another party or entity and containing such hazardous
substances, and
(4) any person who accepts or accepted any hazardous substances
for transport to disposal or treatment facilities, incineration
vessels or sites selected by such person, from which there is a
release, or a threatened release which causes the incurrence of
response costs, of a hazardous substance, shall be liable for -
(A) all costs of removal or remedial action incurred by the
United States Government or a State or an Indian tribe not
inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any
other person consistent with the national contingency plan;
(C) damages for injury to, destruction of, or loss of natural
resources, including the reasonable costs of assessing such
injury, destruction, or loss resulting from such a release; and
(D) the costs of any health assessment or health effects
study carried out under section 9604(i) of this title.
The amounts recoverable in an action under this section shall
include interest on the amounts recoverable under subparagraphs (A)
through (D). Such interest shall accrue from the later of (i) the
date payment of a specified amount is demanded in writing, or (ii)
the date of the expenditure concerned. The rate of interest on the
outstanding unpaid balance of the amounts recoverable under this
section shall be the same rate as is specified for interest on
investments of the Hazardous Substance Superfund established under
subchapter A of chapter 98 of title 26. For purposes of applying
such amendments to interest under this subsection, the term
"comparable maturity" shall be determined with reference to the
date on which interest accruing under this subsection commences.
(b) Defenses
There shall be no liability under subsection (a) of this section
for a person otherwise liable who can establish by a preponderance
of the evidence that the release or threat of release of a
hazardous substance and the damages resulting therefrom were caused
solely by -
(1) an act of God;
(2) an act of war;
(3) an act or omission of a third party other than an employee
or agent of the defendant, or than one whose act or omission
occurs in connection with a contractual relationship, existing
directly or indirectly, with the defendant (except where the sole
contractual arrangement arises from a published tariff and
acceptance for carriage by a common carrier by rail), if the
defendant establishes by a preponderance of the evidence that (a)
he exercised due care with respect to the hazardous substance
concerned, taking into consideration the characteristics of such
hazardous substance, in light of all relevant facts and
circumstances, and (b) he took precautions against foreseeable
acts or omissions of any such third party and the consequences
that could foreseeably result from such acts or omissions; or
(4) any combination of the foregoing paragraphs.
(c) Determination of amounts
(1) Except as provided in paragraph (2) of this subsection, the
liability under this section of an owner or operator or other
responsible person for each release of a hazardous substance or
incident involving release of a hazardous substance shall not
exceed -
(A) for any vessel, other than an incineration vessel, which
carries any hazardous substance as cargo or residue, $300 per
gross ton, or $5,000,000, whichever is greater;
(B) for any other vessel, other than an incineration vessel,
$300 per gross ton, or $500,000, whichever is greater;
(C) for any motor vehicle, aircraft, hazardous liquid pipeline
facility (as defined in section 60101(a) of title 49), or rolling
stock, $50,000,000 or such lesser amount as the President shall
establish by regulation, but in no event less than $5,000,000
(or, for releases of hazardous substances as defined in section
9601(14)(A) of this title into the navigable waters, $8,000,000).
Such regulations shall take into account the size, type,
location, storage, and handling capacity and other matters
relating to the likelihood of release in each such class and to
the economic impact of such limits on each such class; or
(D) for any incineration vessel or any facility other than
those specified in subparagraph (C) of this paragraph, the total
of all costs of response plus $50,000,000 for any damages under
this subchapter.
(2) Notwithstanding the limitations in paragraph (1) of this
subsection, the liability of an owner or operator or other
responsible person under this section shall be the full and total
costs of response and damages, if (A)(i) the release or threat of
release of a hazardous substance was the result of willful
misconduct or willful negligence within the privity or knowledge of
such person, or (ii) the primary cause of the release was a
violation (within the privity or knowledge of such person) of
applicable safety, construction, or operating standards or
regulations; or (B) such person fails or refuses to provide all
reasonable cooperation and assistance requested by a responsible
public official in connection with response activities under the
national contingency plan with respect to regulated carriers
subject to the provisions of title 49 or vessels subject to the
provisions of title 33, 46, or 46 Appendix, subparagraph (A)(ii) of
this paragraph shall be deemed to refer to Federal standards or
regulations.
(3) If any person who is liable for a release or threat of
release of a hazardous substance fails without sufficient cause to
properly provide removal or remedial action upon order of the
President pursuant to section 9604 or 9606 of this title, such
person may be liable to the United States for punitive damages in
an amount at least equal to, and not more than three times, the
amount of any costs incurred by the Fund as a result of such
failure to take proper action. The President is authorized to
commence a civil action against any such person to recover the
punitive damages, which shall be in addition to any costs recovered
from such person pursuant to section 9612(c) of this title. Any
moneys received by the United States pursuant to this subsection
shall be deposited in the Fund.
(d) Rendering care or advice
(1) In general
Except as provided in paragraph (2), no person shall be liable
under this subchapter for costs or damages as a result of actions
taken or omitted in the course of rendering care, assistance, or
advice in accordance with the National Contingency Plan ("NCP")
or at the direction of an onscene coordinator appointed under
such plan, with respect to an incident creating a danger to
public health or welfare or the environment as a result of any
releases of a hazardous substance or the threat thereof. This
paragraph shall not preclude liability for costs or damages as
the result of negligence on the part of such person.
(2) State and local governments
No State or local government shall be liable under this
subchapter for costs or damages as a result of actions taken in
response to an emergency created by the release or threatened
release of a hazardous substance generated by or from a facility
owned by another person. This paragraph shall not preclude
liability for costs or damages as a result of gross negligence or
intentional misconduct by the State or local government. For the
purpose of the preceding sentence, reckless, willful, or wanton
misconduct shall constitute gross negligence.
(3) Savings provision
This subsection shall not alter the liability of any person
covered by the provisions of paragraph (1), (2), (3), or (4) of
subsection (a) of this section with respect to the release or
threatened release concerned.
(e) Indemnification, hold harmless, etc., agreements or
conveyances; subrogation rights
(1) No indemnification, hold harmless, or similar agreement or
conveyance shall be effective to transfer from the owner or
operator of any vessel or facility or from any person who may be
liable for a release or threat of release under this section, to
any other person the liability imposed under this section. Nothing
in this subsection shall bar any agreement to insure, hold
harmless, or indemnify a party to such agreement for any liability
under this section.
(2) Nothing in this subchapter, including the provisions of
paragraph (1) of this subsection, shall bar a cause of action that
an owner or operator or any other person subject to liability under
this section, or a guarantor, has or would have, by reason of
subrogation or otherwise against any person.
(f) Natural resources liability; designation of public trustees of
natural resources
(1) Natural resources liability
In the case of an injury to, destruction of, or loss of natural
resources under subparagraph (C) of subsection (a) of this
section liability shall be to the United States Government and to
any State for natural resources within the State or belonging to,
managed by, controlled by, or appertaining to such State and to
any Indian tribe for natural resources belonging to, managed by,
controlled by, or appertaining to such tribe, or held in trust
for the benefit of such tribe, or belonging to a member of such
tribe if such resources are subject to a trust restriction on
alienation: Provided, however, That no liability to the United
States or State or Indian tribe shall be imposed under
subparagraph (C) of subsection (a) of this section, where the
party sought to be charged has demonstrated that the damages to
natural resources complained of were specifically identified as
an irreversible and irretrievable commitment of natural resources
in an environmental impact statement, or other comparable
environment analysis, and the decision to grant a permit or
license authorizes such commitment of natural resources, and the
facility or project was otherwise operating within the terms of
its permit or license, so long as, in the case of damages to an
Indian tribe occurring pursuant to a Federal permit or license,
the issuance of that permit or license was not inconsistent with
the fiduciary duty of the United States with respect to such
Indian tribe. The President, or the authorized representative of
any State, shall act on behalf of the public as trustee of such
natural resources to recover for such damages. Sums recovered by
the United States Government as trustee under this subsection
shall be retained by the trustee, without further appropriation,
for use only to restore, replace, or acquire the equivalent of
such natural resources. Sums recovered by a State as trustee
under this subsection shall be available for use only to restore,
replace, or acquire the equivalent of such natural resources by
the State. The measure of damages in any action under
subparagraph (C) of subsection (a) of this section shall not be
limited by the sums which can be used to restore or replace such
resources. There shall be no double recovery under this chapter
for natural resource damages, including the costs of damage
assessment or restoration, rehabilitation, or acquisition for the
same release and natural resource. There shall be no recovery
under the authority of subparagraph (C) of subsection (a) of this
section where such damages and the release of a hazardous
substance from which such damages resulted have occurred wholly
before December 11, 1980.
(2) Designation of Federal and State officials
(A) Federal
The President shall designate in the National Contingency
Plan published under section 9605 of this title the Federal
officials who shall act on behalf of the public as trustees for
natural resources under this chapter and section 1321 of title
33. Such officials shall assess damages for injury to,
destruction of, or loss of natural resources for purposes of
this chapter and such section 1321 of title 33 for those
resources under their trusteeship and may, upon request of and
reimbursement from a State and at the Federal officials'
discretion, assess damages for those natural resources under
the State's trusteeship.
(B) State
The Governor of each State shall designate State officials
who may act on behalf of the public as trustees for natural
resources under this chapter and section 1321 of title 33 and
shall notify the President of such designations. Such State
officials shall assess damages to natural resources for the
purposes of this chapter and such section 1321 of title 33 for
those natural resources under their trusteeship.
(C) Rebuttable presumption
Any determination or assessment of damages to natural
resources for the purposes of this chapter and section 1321 of
title 33 made by a Federal or State trustee in accordance with
the regulations promulgated under section 9651(c) of this title
shall have the force and effect of a rebuttable presumption on
behalf of the trustee in any administrative or judicial
proceeding under this chapter or section 1321 of title 33.
(g) Federal agencies
For provisions relating to Federal agencies, see section 9620 of
this title.
(h) Owner or operator of vessel
The owner or operator of a vessel shall be liable in accordance
with this section, under maritime tort law, and as provided under
section 9614 of this title notwithstanding any provision of the Act
of March 3, 1851 (46 U.S.C. 183ff) [46 App. U.S.C. 182, 183,
184-188] or the absence of any physical damage to the proprietary
interest of the claimant.
(i) Application of a registered pesticide product
No person (including the United States or any State or Indian
tribe) may recover under the authority of this section for any
response costs or damages resulting from the application of a
pesticide product registered under the Federal Insecticide,
Fungicide, and Rodenticide Act [7 U.S.C. 136 et seq.]. Nothing in
this paragraph shall affect or modify in any way the obligations or
liability of any person under any other provision of State or
Federal law, including common law, for damages, injury, or loss
resulting from a release of any hazardous substance or for removal
or remedial action or the costs of removal or remedial action of
such hazardous substance.
(j) Obligations or liability pursuant to federally permitted
release
Recovery by any person (including the United States or any State
or Indian tribe) for response costs or damages resulting from a
federally permitted release shall be pursuant to existing law in
lieu of this section. Nothing in this paragraph shall affect or
modify in any way the obligations or liability of any person under
any other provision of State or Federal law, including common law,
for damages, injury, or loss resulting from a release of any
hazardous substance or for removal or remedial action or the costs
of removal or remedial action of such hazardous substance. In
addition, costs of response incurred by the Federal Government in
connection with a discharge specified in section 9601(10)(B) or (C)
of this title shall be recoverable in an action brought under
section 1319(b) of title 33.
(k) Transfer to, and assumption by, Post-Closure Liability Fund of
liability of owner or operator of hazardous waste disposal
facility in receipt of permit under applicable solid waste
disposal law; time, criteria applicable, procedures, etc.;
monitoring costs; reports
(1) The liability established by this section or any other law
for the owner or operator of a hazardous waste disposal facility
which has received a permit under subtitle C of the Solid Waste
Disposal Act [42 U.S.C. 6921 et seq.], shall be transferred to and
assumed by the Post-closure Liability Fund established by section
9641 )1(! of this title when -
(A) such facility and the owner and operator thereof has
complied with the requirements of subtitle C of the Solid Waste
Disposal Act [42 U.S.C. 6921 et seq.] and regulations issued
thereunder, which may affect the performance of such facility
after closure; and
(B) such facility has been closed in accordance with such
regulations and the conditions of such permit, and such facility
and the surrounding area have been monitored as required by such
regulations and permit conditions for a period not to exceed five
years after closure to demonstrate that there is no substantial
likelihood that any migration offsite or release from confinement
of any hazardous substance or other risk to public health or
welfare will occur.
(2) Such transfer of liability shall be effective ninety days
after the owner or operator of such facility notifies the
Administrator of the Environmental Protection Agency (and the State
where it has an authorized program under section 3006(b) of the
Solid Waste Disposal Act [42 U.S.C. 6926(b)]) that the conditions
imposed by this subsection have been satisfied. If within such
ninety-day period the Administrator of the Environmental Protection
Agency or such State determines that any such facility has not
complied with all the conditions imposed by this subsection or that
insufficient information has been provided to demonstrate such
compliance, the Administrator or such State shall so notify the
owner and operator of such facility and the administrator of the
Fund established by section 9641 )1(! of this title, and the owner
and operator of such facility shall continue to be liable with
respect to such facility under this section and other law until
such time as the Administrator and such State determines that such
facility has complied with all conditions imposed by this
subsection. A determination by the Administrator or such State that
a facility has not complied with all conditions imposed by this
subsection or that insufficient information has been supplied to
demonstrate compliance, shall be a final administrative action for
purposes of judicial review. A request for additional information
shall state in specific terms the data required.
(3) In addition to the assumption of liability of owners and
operators under paragraph (1) of this subsection, the Post-closure
Liability Fund established by section 9641 )1(! of this title may
be used to pay costs of monitoring and care and maintenance of a
site incurred by other persons after the period of monitoring
required by regulations under subtitle C of the Solid Waste
Disposal Act [42 U.S.C. 6921 et seq.] for hazardous waste disposal
facilities meeting the conditions of paragraph (1) of this
subsection.
(4)(A) Not later than one year after December 11, 1980, the
Secretary of the Treasury shall conduct a study and shall submit a
report thereon to the Congress on the feasibility of establishing
or qualifying an optional system of private insurance for
postclosure financial responsibility for hazardous waste disposal
facilities to which this subsection applies. Such study shall
include a specification of adequate and realistic minimum standards
to assure that any such privately placed insurance will carry out
the purposes of this subsection in a reliable, enforceable, and
practical manner. Such a study shall include an examination of the
public and private incentives, programs, and actions necessary to
make privately placed insurance a practical and effective option to
the financing system for the Post-closure Liability Fund provided
in subchapter II )1(! of this chapter.
(B) Not later than eighteen months after December 11, 1980, and
after a public hearing, the President shall by rule determine
whether or not it is feasible to establish or qualify an optional
system of private insurance for postclosure financial
responsibility for hazardous waste disposal facilities to which
this subsection applies. If the President determines the
establishment or qualification of such a system would be
infeasible, he shall promptly publish an explanation of the reasons
for such a determination. If the President determines the
establishment or qualification of such a system would be feasible,
he shall promptly publish notice of such determination. Not later
than six months after an affirmative determination under the
preceding sentence and after a public hearing, the President shall
by rule promulgate adequate and realistic minimum standards which
must be met by any such privately placed insurance, taking into
account the purposes of this chapter and this subsection. Such
rules shall also specify reasonably expeditious procedures by which
privately placed insurance plans can qualify as meeting such
minimum standards.
(C) In the event any privately placed insurance plan qualifies
under subparagraph (B), any person enrolled in, and complying with
the terms of, such plan shall be excluded from the provisions of
paragraphs (1), (2), and (3) of this subsection and exempt from the
requirements to pay any tax or fee to the Post-closure Liability
Fund under subchapter II )1(! of this chapter.
(D) The President may issue such rules and take such other
actions as are necessary to effectuate the purposes of this
paragraph.
(5) Suspension of liability transfer. - Notwithstanding
paragraphs (1), (2), (3), and (4) of this subsection and subsection
(j) of section 9611 of this title, no liability shall be
transferred to or assumed by the Post-Closure Liability Trust Fund
established by section 9641 )1(! of this title prior to completion
of the study required under paragraph (6) of this subsection,
transmission of a report of such study to both Houses of Congress,
and authorization of such a transfer or assumption by Act of
Congress following receipt of such study and report.
(6) Study of options for post-closure program. -
(A) Study. - The Comptroller General shall conduct a study of
options for a program for the management of the liabilities
associated with hazardous waste treatment, storage, and disposal
sites after their closure which complements the policies set
forth in the Hazardous and Solid Waste Amendments of 1984 and
assures the protection of human health and the environment.
(B) Program elements. - The program referred to in subparagraph
(A) shall be designed to assure each of the following:
(i) Incentives are created and maintained for the safe
management and disposal of hazardous wastes so as to assure
protection of human health and the environment.
(ii) Members of the public will have reasonable confidence
that hazardous wastes will be managed and disposed of safely
and that resources will be available to address any problems
that may arise and to cover costs of long-term monitoring,
care, and maintenance of such sites.
(iii) Persons who are or seek to become owners and operators
of hazardous waste disposal facilities will be able to manage
their potential future liabilities and to attract the
investment capital necessary to build, operate, and close such
facilities in a manner which assures protection of human health
and the environment.
(C) Assessments. - The study under this paragraph shall include
assessments of treatment, storage, and disposal facilities which
have been or are likely to be issued a permit under section 3005
of the Solid Waste Disposal Act [42 U.S.C. 6925] and the
likelihood of future insolvency on the part of owners and
operators of such facilities. Separate assessments shall be made
for different classes of facilities and for different classes of
land disposal facilities and shall include but not be limited to
-
(i) the current and future financial capabilities of facility
owners and operators;
(ii) the current and future costs associated with facilities,
including the costs of routine monitoring and maintenance,
compliance monitoring, corrective action, natural resource
damages, and liability for damages to third parties; and
(iii) the availability of mechanisms by which owners and
operators of such facilities can assure that current and future
costs, including post-closure costs, will be financed.
(D) Procedures. - In carrying out the responsibilities of this
paragraph, the Comptroller General shall consult with the
Administrator, the Secretary of Commerce, the Secretary of the
Treasury, and the heads of other appropriate Federal agencies.
(E) Consideration of options. - In conducting the study under
this paragraph, the Comptroller General shall consider various
mechanisms and combinations of mechanisms to complement the
policies set forth in the Hazardous and Solid Waste Amendments of
1984 to serve the purposes set forth in subparagraph (B) and to
assure that the current and future costs associated with
hazardous waste facilities, including post-closure costs, will be
adequately financed and, to the greatest extent possible, borne
by the owners and operators of such facilities. Mechanisms to be
considered include, but are not limited to -
(i) revisions to closure, post-closure, and financial
responsibility requirements under subtitles C and I of the
Solid Waste Disposal Act [42 U.S.C. 6921 et seq., 6991 et
seq.];
(ii) voluntary risk pooling by owners and operators;
(iii) legislation to require risk pooling by owners and
operators;
(iv) modification of the Post-Closure Liability Trust Fund
previously established by section 9641 )2(! of this title, and
the conditions for transfer of liability under this subsection,
including limiting the transfer of some or all liability under
this subsection only in the case of insolvency of owners and
operators;
(v) private insurance;
(vi) insurance provided by the Federal Government;
(vii) coinsurance, reinsurance, or pooled-risk insurance,
whether provided by the private sector or provided or assisted
by the Federal Government; and
(viii) creation of a new program to be administered by a new
or existing Federal agency or by a federally chartered
corporation.
(F) Recommendations. - The Comptroller General shall consider
options for funding any program under this section and shall, to
the extent necessary, make recommendations to the appropriate
committees of Congress for additional authority to implement such
program.
(l) Federal lien
(1) In general
All costs and damages for which a person is liable to the
United States under subsection (a) of this section (other than
the owner or operator of a vessel under paragraph (1) of
subsection (a) of this section) shall constitute a lien in favor
of the United States upon all real property and rights to such
property which -
(A) belong to such person; and
(B) are subject to or affected by a removal or remedial
action.
(2) Duration
The lien imposed by this subsection shall arise at the later of
the following:
(A) The time costs are first incurred by the United States
with respect to a response action under this chapter.
(B) The time that the person referred to in paragraph (1) is
provided (by certified or registered mail) written notice of
potential liability.
Such lien shall continue until the liability for the costs (or a
judgment against the person arising out of such liability) is
satisfied or becomes unenforceable through operation of the
statute of limitations provided in section 9613 of this title.
(3) Notice and validity
The lien imposed by this subsection shall be subject to the
rights of any purchaser, holder of a security interest, or
judgment lien creditor whose interest is perfected under
applicable State law before notice of the lien has been filed in
the appropriate office within the State (or county or other
governmental subdivision), as designated by State law, in which
the real property subject to the lien is located. Any such
purchaser, holder of a security interest, or judgment lien
creditor shall be afforded the same protections against the lien
imposed by this subsection as are afforded under State law
against a judgment lien which arises out of an unsecured
obligation and which arises as of the time of the filing of the
notice of the lien imposed by this subsection. If the State has
not by law designated one office for the receipt of such notices
of liens, the notice shall be filed in the office of the clerk of
the United States district court for the district in which the
real property is located. For purposes of this subsection, the
terms "purchaser" and "security interest" shall have the
definitions provided under section 6323(h) of title 26.
(4) Action in rem
The costs constituting the lien may be recovered in an action
in rem in the United States district court for the district in
which the removal or remedial action is occurring or has
occurred. Nothing in this subsection shall affect the right of
the United States to bring an action against any person to
recover all costs and damages for which such person is liable
under subsection (a) of this section.
(m) Maritime lien
All costs and damages for which the owner or operator of a vessel
is liable under subsection (a)(1) of this section with respect to a
release or threatened release from such vessel shall constitute a
maritime lien in favor of the United States on such vessel. Such
costs may be recovered in an action in rem in the district court of
the United States for the district in which the vessel may be
found. Nothing in this subsection shall affect the right of the
United States to bring an action against the owner or operator of
such vessel in any court of competent jurisdiction to recover such
costs.
(n) Liability of fiduciaries
(1) In general
The liability of a fiduciary under any provision of this
chapter for the release or threatened release of a hazardous
substance at, from, or in connection with a vessel or facility
held in a fiduciary capacity shall not exceed the assets held in
the fiduciary capacity.
(2) Exclusion
Paragraph (1) does not apply to the extent that a person is
liable under this chapter independently of the person's ownership
of a vessel or facility as a fiduciary or actions taken in a
fiduciary capacity.
(3) Limitation
Paragraphs (1) and (4) do not limit the liability pertaining to
a release or threatened release of a hazardous substance if
negligence of a fiduciary causes or contributes to the release or
threatened release.
(4) Safe harbor
A fiduciary shall not be liable in its personal capacity under
this chapter for -
(A) undertaking or directing another person to undertake a
response action under subsection (d)(1) of this section or
under the direction of an on scene coordinator designated under
the National Contingency Plan;
(B) undertaking or directing another person to undertake any
other lawful means of addressing a hazardous substance in
connection with the vessel or facility;
(C) terminating the fiduciary relationship;
(D) including in the terms of the fiduciary agreement a
covenant, warranty, or other term or condition that relates to
compliance with an environmental law, or monitoring, modifying
or enforcing the term or condition;
(E) monitoring or undertaking 1 or more inspections of the
vessel or facility;
(F) providing financial or other advice or counseling to
other parties to the fiduciary relationship, including the
settlor or beneficiary;
(G) restructuring, renegotiating, or otherwise altering the
terms and conditions of the fiduciary relationship;
(H) administering, as a fiduciary, a vessel or facility that
was contaminated before the fiduciary relationship began; or
(I) declining to take any of the actions described in
subparagraphs (B) through (H).
(5) Definitions
As used in this chapter:
(A) Fiduciary
The term "fiduciary" -
(i) means a person acting for the benefit of another party
as a bona fide -
(I) trustee;
(II) executor;
(III) administrator;
(IV) custodian;
(V) guardian of estates or guardian ad litem;
(VI) receiver;
(VII) conservator;
(VIII) committee of estates of incapacitated persons;
(IX) personal representative;
(X) trustee (including a successor to a trustee) under an
indenture agreement, trust agreement, lease, or similar
financing agreement, for debt securities, certificates of
interest or certificates of participation in debt
securities, or other forms of indebtedness as to which the
trustee is not, in the capacity of trustee, the lender; or
(XI) representative in any other capacity that the
Administrator, after providing public notice, determines to
be similar to the capacities described in subclauses (I)
through (X); and
(ii) does not include -
(I) a person that is acting as a fiduciary with respect
to a trust or other fiduciary estate that was organized for
the primary purpose of, or is engaged in, actively carrying
on a trade or business for profit, unless the trust or
other fiduciary estate was created as part of, or to
facilitate, 1 or more estate plans or because of the
incapacity of a natural person; or
(II) a person that acquires ownership or control of a
vessel or facility with the objective purpose of avoiding
liability of the person or of any other person.
(B) Fiduciary capacity
The term "fiduciary capacity" means the capacity of a person
in holding title to a vessel or facility, or otherwise having
control of or an interest in the vessel or facility, pursuant
to the exercise of the responsibilities of the person as a
fiduciary.
(6) Savings clause
Nothing in this subsection -
(A) affects the rights or immunities or other defenses that
are available under this chapter or other law that is
applicable to a person subject to this subsection; or
(B) creates any liability for a person or a private right of
action against a fiduciary or any other person.
(7) No effect on certain persons
Nothing in this subsection applies to a person if the person -
(A)(i) acts in a capacity other than that of a fiduciary or
in a beneficiary capacity; and
(ii) in that capacity, directly or indirectly benefits from a
trust or fiduciary relationship; or
(B)(i) is a beneficiary and a fiduciary with respect to the
same fiduciary estate; and
(ii) as a fiduciary, receives benefits that exceed customary
or reasonable compensation, and incidental benefits, permitted
under other applicable law.
(8) Limitation
This subsection does not preclude a claim under this chapter
against -
(A) the assets of the estate or trust administered by the
fiduciary; or
(B) a nonemployee agent or independent contractor retained by
a fiduciary.
(o) De micromis exemption
(1) In general
Except as provided in paragraph (2), a person shall not be
liable, with respect to response costs at a facility on the
National Priorities List, under this chapter if liability is
based solely on paragraph (3) or (4) of subsection (a) of this
section, and the person, except as provided in paragraph (4) of
this subsection, can demonstrate that -
(A) the total amount of the material containing hazardous
substances that the person arranged for disposal or treatment
of, arranged with a transporter for transport for disposal or
treatment of, or accepted for transport for disposal or
treatment, at the facility was less than 110 gallons of liquid
materials or less than 200 pounds of solid materials (or such
greater or lesser amounts as the Administrator may determine by
regulation); and
(B) all or part of the disposal, treatment, or transport
concerned occurred before April 1, 2001.
(2) Exceptions
Paragraph (1) shall not apply in a case in which -
(A) the President determines that -
(i) the materials containing hazardous substances referred
to in paragraph (1) have contributed significantly or could
contribute significantly, either individually or in the
aggregate, to the cost of the response action or natural
resource restoration with respect to the facility; or
(ii) the person has failed to comply with an information
request or administrative subpoena issued by the President
under this chapter or has impeded or is impeding, through
action or inaction, the performance of a response action or
natural resource restoration with respect to the facility; or
(B) a person has been convicted of a criminal violation for
the conduct to which the exemption would apply, and that
conviction has not been vitiated on appeal or otherwise.
(3) No judicial review
A determination by the President under paragraph (2)(A) shall
not be subject to judicial review.
(4) Nongovernmental third-party contribution actions
In the case of a contribution action, with respect to response
costs at a facility on the National Priorities List, brought by a
party, other than a Federal, State, or local government, under
this chapter, the burden of proof shall be on the party bringing
the action to demonstrate that the conditions described in
paragraph (1)(A) and (B) of this subsection are not met.
(p) Municipal solid waste exemption
(1) In general
Except as provided in paragraph (2) of this subsection, a
person shall not be liable, with respect to response costs at a
facility on the National Priorities List, under paragraph (3) of
subsection (a) of this section for municipal solid waste disposed
of at a facility if the person, except as provided in paragraph
(5) of this subsection, can demonstrate that the person is -
(A) an owner, operator, or lessee of residential property
from which all of the person's municipal solid waste was
generated with respect to the facility;
(B) a business entity (including a parent, subsidiary, or
affiliate of the entity) that, during its 3 taxable years
preceding the date of transmittal of written notification from
the President of its potential liability under this section,
employed on average not more than 100 full-time individuals, or
the equivalent thereof, and that is a small business concern
(within the meaning of the Small Business Act (15 U.S.C. 631 et
seq.)) from which was generated all of the municipal solid
waste attributable to the entity with respect to the facility;
or
(C) an organization described in section 501(c)(3) of title
26 and exempt from tax under section 501(a) of such title that,
during its taxable year preceding the date of transmittal of
written notification from the President of its potential
liability under this section, employed not more than 100 paid
individuals at the location from which was generated all of the
municipal solid waste attributable to the organization with
respect to the facility.
For purposes of this subsection, the term "affiliate" has the
meaning of that term provided in the definition of "small
business concern" in regulations promulgated by the Small
Business Administration in accordance with the Small Business Act
(15 U.S.C. 631 et seq.).
(2) Exception
Paragraph (1) shall not apply in a case in which the President
determines that -
(A) the municipal solid waste referred to in paragraph (1)
has contributed significantly or could contribute
significantly, either individually or in the aggregate, to the
cost of the response action or natural resource restoration
with respect to the facility;
(B) the person has failed to comply with an information
request or administrative subpoena issued by the President
under this chapter; or
(C) the person has impeded or is impeding, through action or
inaction, the performance of a response action or natural
resource restoration with respect to the facility.
(3) No judicial review
A determination by the President under paragraph (2) shall not
be subject to judicial review.
(4) Definition of municipal solid waste
(A) In general
For purposes of this subsection, the term "municipal solid
waste" means waste material -
(i) generated by a household (including a single or
multifamily residence); and
(ii) generated by a commercial, industrial, or
institutional entity, to the extent that the waste material -
(I) is essentially the same as waste normally generated
by a household;
(II) is collected and disposed of with other municipal
solid waste as part of normal municipal solid waste
collection services; and
(III) contains a relative quantity of hazardous
substances no greater than the relative quantity of
hazardous substances contained in waste material generated
by a typical single-family household.
(B) Examples
Examples of municipal solid waste under subparagraph (A)
include food and yard waste, paper, clothing, appliances,
consumer product packaging, disposable diapers, office
supplies, cosmetics, glass and metal food containers,
elementary or secondary school science laboratory waste, and
household hazardous waste.
(C) Exclusions
The term "municipal solid waste" does not include -
(i) combustion ash generated by resource recovery
facilities or municipal incinerators; or
(ii) waste material from manufacturing or processing
operations (including pollution control operations) that is
not essentially the same as waste normally generated by
households.
(5) Burden of proof
In the case of an action, with respect to response costs at a
facility on the National Priorities List, brought under this
section or section 9613 of this title by -
(A) a party, other than a Federal, State, or local
government, with respect to municipal solid waste disposed of
on or after April 1, 2001; or
(B) any party with respect to municipal solid waste disposed
of before April 1, 2001, the burden of proof shall be on the
party bringing the action to demonstrate that the conditions
described in paragraphs (1) and (4) for exemption for entities
and organizations described in paragraph (1)(B) and (C) are not
met.
(6) Certain actions not permitted
No contribution action may be brought by a party, other than a
Federal, State, or local government, under this chapter with
respect to circumstances described in paragraph (1)(A).
(7) Costs and fees
A nongovernmental entity that commences, after January 11,
2002, a contribution action under this chapter shall be liable to
the defendant for all reasonable costs of defending the action,
including all reasonable attorney's fees and expert witness fees,
if the defendant is not liable for contribution based on an
exemption under this subsection or subsection (o) of this
section.
(q) Contiguous properties
(1) Not considered to be an owner or operator
(A) In general
A person that owns real property that is contiguous to or
otherwise similarly situated with respect to, and that is or
may be contaminated by a release or threatened release of a
hazardous substance from, real property that is not owned by
that person shall not be considered to be an owner or operator
of a vessel or facility under paragraph (1) or (2) of
subsection (a) of this section solely by reason of the
contamination if -
(i) the person did not cause, contribute, or consent to the
release or threatened release;
(ii) the person is not -
(I) potentially liable, or affiliated with any other
person that is potentially liable, for response costs at a
facility through any direct or indirect familial
relationship or any contractual, corporate, or financial
relationship (other than a contractual, corporate, or
financial relationship that is created by a contract for
the sale of goods or services); or
(II) the result of a reorganization of a business entity
that was potentially liable;
(iii) the person takes reasonable steps to -
(I) stop any continuing release;
(II) prevent any threatened future release; and
(III) prevent or limit human, environmental, or natural
resource exposure to any hazardous substance released on or
from property owned by that person;
(iv) the person provides full cooperation, assistance, and
access to persons that are authorized to conduct response
actions or natural resource restoration at the vessel or
facility from which there has been a release or threatened
release (including the cooperation and access necessary for
the installation, integrity, operation, and maintenance of
any complete or partial response action or natural resource
restoration at the vessel or facility);
(v) the person -
(I) is in compliance with any land use restrictions
established or relied on in connection with the response
action at the facility; and
(II) does not impede the effectiveness or integrity of
any institutional control employed in connection with a
response action;
(vi) the person is in compliance with any request for
information or administrative subpoena issued by the
President under this chapter;
(vii) the person provides all legally required notices with
respect to the discovery or release of any hazardous
substances at the facility; and
(viii) at the time at which the person acquired the
property, the person -
(I) conducted all appropriate inquiry within the meaning
of section 9601(35)(B) of this title with respect to the
property; and
(II) did not know or have reason to know that the
property was or could be contaminated by a release or
threatened release of one or more hazardous substances from
other real property not owned or operated by the person.
(B) Demonstration
To qualify as a person described in subparagraph (A), a
person must establish by a preponderance of the evidence that
the conditions in clauses (i) through (viii) of subparagraph
(A) have been met.
(C) Bona fide prospective purchaser
Any person that does not qualify as a person described in
this paragraph because the person had, or had reason to have,
knowledge specified in subparagraph (A)(viii) at the time of
acquisition of the real property may qualify as a bona fide
prospective purchaser under section 9601(40) of this title if
the person is otherwise described in that section.
(D) Ground water
With respect to a hazardous substance from one or more
sources that are not on the property of a person that is a
contiguous property owner that enters ground water beneath the
property of the person solely as a result of subsurface
migration in an aquifer, subparagraph (A)(iii) shall not
require the person to conduct ground water investigations or to
install ground water remediation systems, except in accordance
with the policy of the Environmental Protection Agency
concerning owners of property containing contaminated aquifers,
dated May 24, 1995.
(2) Effect of law
With respect to a person described in this subsection, nothing
in this subsection -
(A) limits any defense to liability that may be available to
the person under any other provision of law; or
(B) imposes liability on the person that is not otherwise
imposed by subsection (a) of this section.
(3) Assurances
The Administrator may -
(A) issue an assurance that no enforcement action under this
chapter will be initiated against a person described in
paragraph (1); and
(B) grant a person described in paragraph (1) protection
against a cost recovery or contribution action under section
9613(f) of this title.
(r) Prospective purchaser and windfall lien
(1) Limitation on liability
Notwithstanding subsection (a)(1) of this section, a bona fide
prospective purchaser whose potential liability for a release or
threatened release is based solely on the purchaser's being
considered to be an owner or operator of a facility shall not be
liable as long as the bona fide prospective purchaser does not
impede the performance of a response action or natural resource
restoration.
(2) Lien
If there are unrecovered response costs incurred by the United
States at a facility for which an owner of the facility is not
liable by reason of paragraph (1), and if each of the conditions
described in paragraph (3) is met, the United States shall have a
lien on the facility, or may by agreement with the owner, obtain
from the owner a lien on any other property or other assurance of
payment satisfactory to the Administrator, for the unrecovered
response costs.
(3) Conditions
The conditions referred to in paragraph (2) are the following:
(A) Response action
A response action for which there are unrecovered costs of
the United States is carried out at the facility.
(B) Fair market value
The response action increases the fair market value of the
facility above the fair market value of the facility that
existed before the response action was initiated.
(4) Amount; duration
A lien under paragraph (2) -
(A) shall be in an amount not to exceed the increase in fair
market value of the property attributable to the response
action at the time of a sale or other disposition of the
property;
(B) shall arise at the time at which costs are first incurred
by the United States with respect to a response action at the
facility;
(C) shall be subject to the requirements of subsection (l)(3)
of this section; and
(D) shall continue until the earlier of -
(i) satisfaction of the lien by sale or other means; or
(ii) notwithstanding any statute of limitations under
section 9613 of this title, recovery of all response costs
incurred at the facility.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 107, Dec. 11, 1980, 94 Stat. 2781;
Pub. L. 99-499, title I, Secs. 107(a)-(d)(2), (e), (f), 127(b),
(e), title II, Secs. 201, 207(c), Oct. 17, 1986, 100 Stat.
1628-1630, 1692, 1693, 1705; Pub. L. 99-514, Sec. 2, Oct. 22, 1986,
100 Stat. 2095; Pub. L. 103-429, Sec. 7(e)(2), Oct. 31, 1994, 108
Stat. 4390; Pub. L. 104-208, div. A, title II, Sec. 2502(a), Sept.
30, 1996, 110 Stat. 3009-462; Pub. L. 104-287, Sec. 6(j)(2), Oct.
11, 1996, 110 Stat. 3400; Pub. L. 107-118, title I, Sec. 102(a),
title II, Secs. 221, 222(b), Jan. 11, 2002, 115 Stat. 2356, 2368,
2371.)
-REFTEXT-
REFERENCES IN TEXT
Such amendments, referred to in the last sentence of subsec. (a),
probably means the amendments made by Pub. L. 99-499, Oct. 17,
1986, 100 Stat. 1613, known as the "Superfund Amendments and
Reauthorization Act of 1986". For complete classification of this
Act to the Code, see Short Title of 1986 Amendment note set out
under section 9601 of this title and Tables.
Act of March 3, 1851 (46 U.S.C. 183ff), referred to in subsec.
(h), is act Mar. 3, 1851, ch. 43, 9 Stat. 635, which was
incorporated into the Revised Statutes as R.S. Secs. 4282 to 4287
and 4289, and is classified to sections 182, 183, and 184 to 188 of
Title 46, Appendix, Shipping.
The Federal Insecticide, Fungicide, and Rodenticide Act, referred
to in subsec. (i), is act June 25, 1947, ch. 125, as amended
generally by Pub. L. 92-516, Oct. 21, 1972, 86 Stat. 973, which is
classified generally to subchapter II (Sec. 136 et seq.) of chapter
6 of Title 7, Agriculture. For complete classification of this Act
to the Code, see Short Title note set out under section 136 of
Title 7 and Tables.
The Solid Waste Disposal Act, referred to in subsec. (k)(1), (3),
(6)(E)(i), is title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat.
997, as amended generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976,
90 Stat. 2795. Subtitles C and I of the Solid Waste Disposal Act
are classified generally to subchapters III (Sec. 6921 et seq.) and
IX (Sec. 6991 et seq.), respectively, of chapter 82 of this title.
For complete classification of this Act to the Code, see Short
Title note set out under section 6901 of this title and Tables.
Section 9641 of this title, referred to in subsec. (k), was
repealed by Pub. L. 99-499, title V, Sec. 514(b), Oct. 17, 1986,
100 Stat. 1767.
Subchapter II of this chapter, referred to in subsec. (k)(4)(A)
and (C), was in the original "title II of this Act", meaning title
II of Pub. L. 96-510, Dec. 11, 1980, 94 Stat. 2796, known as the
Hazardous Substance Response Revenue Act of 1980, which enacted
subchapter II of this chapter and sections 4611, 4612, 4661, 4662,
4681, and 4682 of Title 26, Internal Revenue Code. Sections 221 to
223 and 232 of Pub. L. 96-510, which were classified to sections
9631 to 9633 and 9641 of this title, comprising subchapter II of
this chapter, were repealed by Pub. L. 99-499, title V, Secs.
514(b), 517(c)(1), Oct. 17, 1986, 100 Stat. 1767, 1774. For
complete classification of title II to the Code, see Short Title of
1980 Amendment note set out under section 1 of Title 26 and Tables.
The Hazardous and Solid Waste Amendments of 1984, referred to in
subsec. (k)(6)(A), (E), is Pub. L. 98-616, Nov. 8, 1984, 98 Stat.
3221. For complete classification of this Act to the Code, see
Short Title of 1984 Amendment note set out under section 6901 of
this title and Tables.
The Small Business Act, referred to in subsec. (p)(1), is Pub. L.
85-536, July 18, 1958, 72 Stat. 384, as amended, which is
classified generally to chapter 14A (Sec. 631 et seq.) of Title 15,
Commerce and Trade. For complete classification of this Act to the
Code, see Short Title note set out under section 631 of Title 15
and Tables.
-MISC1-
AMENDMENTS
2002 - Subsecs. (o), (p). Pub. L. 107-118, Sec. 102(a), added
subsecs. (o) and (p).
Subsec. (q). Pub. L. 107-118, Sec. 221, added subsec. (q).
Subsec. (r). Pub. L. 107-118, Sec. 222(b), added subsec. (r).
1996 - Subsec. (c)(1)(C). Pub. L. 104-287 substituted "section
60101(a) of title 49" for "the Hazardous Liquid Pipeline Safety Act
of 1979".
Subsec. (n). Pub. L. 104-208 added subsec. (n).
1994 - Subsec. (c)(1)(C). Pub. L. 103-429 substituted "hazardous
liquid pipeline facility" for "pipeline".
1986 - Subsec. (a). Pub. L. 99-514, in penultimate sentence,
substituted "Internal Revenue Code of 1986" for "Internal Revenue
Code of 1954", which for purposes of codification was translated as
"title 26" thus requiring no change in text.
Pub. L. 99-499, Sec. 107(b), inserted concluding provisions
relating to accrual and rate of interest on amounts recoverable
under this section.
Subsec. (a)(1). Pub. L. 99-499, Sec. 107(a), struck out
"(otherwise subject to the jurisdiction of the United States)"
after "vessel".
Subsec. (a)(3). Pub. L. 99-499, Sec. 127(b)(1), inserted "or
incineration vessel" after "facility".
Subsec. (a)(4). Pub. L. 99-499, Secs. 107(b), 127(b)(2),
207(c)(1), in introductory provisions, inserted ", incineration
vessels" after "vessels", in subpar. (A), inserted "or an Indian
tribe" after "State", and added subpar. (D).
Subsec. (c)(1)(A). Pub. L. 99-499, Sec. 127(b)(3), inserted ",
other than an incineration vessel," after "vessel".
Subsec. (c)(1)(B). Pub. L. 99-499, Sec. 127(b)(4), inserted
"other than an incineration vessel," after "other vessel,".
Subsec. (c)(1)(D). Pub. L. 99-499, Sec. 127(b)(5), inserted "any
incineration vessel or" before "any facility".
Subsec. (d). Pub. L. 99-499, Sec. 107(c), amended subsec. (d)
generally. Prior to amendment, subsec. (d) read as follows: "No
person shall be liable under this subchapter for damages as a
result of actions taken or omitted in the course of rendering care,
assistance, or advice in accordance with the national contingency
plan or at the direction of an onscene coordinator appointed under
such plan, with respect to an incident creating a danger to public
health or welfare or the environment as a result of any release of
a hazardous substance or the threat thereof. This subsection shall
not preclude liability for damages as the result of gross
negligence or intentional misconduct on the part of such person.
For the purposes of the preceding sentence, reckless, willful, or
wanton misconduct shall constitute gross negligence."
Subsec. (f)(1). Pub. L. 99-499, Sec. 107(d)(1), designated
existing provisions as par. (1) and added heading.
Pub. L. 99-499, Sec. 207(c)(2)(A), inserted "and to any Indian
tribe for natural resources belonging to, managed by, controlled
by, or appertaining to such tribe, or held in trust for the benefit
of such tribe, or belonging to a member of such tribe if such
resources are subject to a trust restriction on alienation" after
third reference to "State".
Pub. L. 99-499, Sec. 207(c)(2)(B), inserted "or Indian tribe"
after fourth reference to "State".
Pub. L. 99-499, Sec. 207(c)(2)(C), inserted in first sentence ",
so long as, in the case of damages to an Indian tribe occurring
pursuant to a Federal permit or license, the issuance of that
permit or license was not inconsistent with the fiduciary duty of
the United States with respect to such Indian tribe".
Pub. L. 99-499, Sec. 107(d)(2), substituted "Sums recovered by
the United States Government as trustee under this subsection shall
be retained by the trustee, without further appropriation, for use
only to restore, replace, or acquire the equivalent of such natural
resources. Sums recovered by a State as trustee under this
subsection shall be available for use only to restore, replace, or
acquire the equivalent of such natural resources by the State. The
measure of damages in any action under subparagraph (C) of
subsection (a) of this section shall not be limited by the sums
which can be used to restore or replace such resources. There shall
be no double recovery under this chapter for natural resource
damages, including the costs of damage assessment or restoration,
rehabilitation, or acquisition for the same release and natural
resource" for "Sums recovered shall be available for use to
restore, rehabilitate, or acquire the equivalent of such natural
resources by the appropriate agencies of the Federal Government or
the State government, but the measure of such damages shall not be
limited by the sums which can be used to restore or replace such
resources".
Pub. L. 99-499, Sec. 207(c)(2)(D), which directed the insertion
of "or the Indian tribe" after "State government", could not be
executed because the prior amendment by section 107(d)(2) of Pub.
L. 99-499, struck out third sentence referring to "State
government".
Subsec. (f)(2). Pub. L. 99-499, Sec. 107(d)(1), added par. (2).
Subsec. (g). Pub. L. 99-499, Sec. 107(e), amended subsec. (g)
generally. Prior to amendment, subsec. (g) read as follows: "Each
department, agency, or instrumentality of the executive,
legislative, and judicial branches of the Federal Government shall
be subject to, and comply with, this chapter in the same manner and
to the same extent, both procedurally and substantively, as any
nongovernmental entity, including liability under this section."
Subsec. (h). Pub. L. 99-499, Sec. 127(e), inserted ", under
maritime tort law," after "with this section" and inserted "or the
absence of any physical damage to the proprietary interest of the
claimant" before the period at end.
Subsec. (i). Pub. L. 99-499, Sec. 207(c)(3), inserted "or Indian
tribe" after "State".
Subsec. (j). Pub. L. 99-499, Sec. 207(c)(4), inserted "or Indian
tribe" after first reference to "State".
Subsec. (k)(5), (6). Pub. L. 99-499, Sec. 201, added pars. (5)
and (6).
Subsec. (l), Pub. L. 99-499, Sec. 107(f), added subsec. (l).
Subsec. (l)(3). Pub. L. 99-514 substituted "Internal Revenue Code
of 1986" for "Internal Revenue Code of 1954", which for purposes of
codification was translated as "title 26" thus requiring no change
in text.
Subsec. (m). Pub. L. 99-499, Sec. 107(f), added subsec. (m).
EFFECTIVE DATE OF 1996 AMENDMENT
Amendment by Pub. L. 104-208 applicable with respect to any claim
that has not been finally adjudicated as of Sept. 30, 1996, see
section 2505 of Pub. L. 104-208, set out as a note under section
6991b of this title.
EFFECT ON CONCLUDED ACTIONS
Pub. L. 107-118, title I, Sec. 103, Jan. 11, 2002, 115 Stat.
2360, provided that: "The amendments made by this title [amending
this section and section 9622 of this title] shall not apply to or
in any way affect any settlement lodged in, or judgment issued by,
a United States District Court, or any administrative settlement or
order entered into or issued by the United States or any State,
before the date of the enactment of this Act [Jan. 11, 2002]."
RECOVERY OF COSTS
Pub. L. 104-303, title II, Sec. 209, Oct. 12, 1996, 110 Stat.
3681, provided that: "Amounts recovered under section 107 of the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (42 U.S.C. 9607) for any response action taken by the
Secretary in support of the civil works program of the Department
of the Army and any other amounts recovered by the Secretary from a
contractor, insurer, surety, or other person to reimburse the
Department of the Army for any expenditure for environmental
response activities in support of the Army civil works program
shall be credited to the appropriate trust fund account from which
the cost of such response action has been paid or will be charged."
COORDINATION OF TITLES I TO IV OF PUB. L. 99-499
Any provision of titles I to IV of Pub. L. 99-499, imposing any
tax, premium, or fee; establishing any trust fund; or authorizing
expenditures from any trust fund, to have no force or effect, see
section 531 of Pub. L. 99-499, set out as a note under section 1 of
Title 26, Internal Revenue Code.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 6924, 6939a, 6991b,
6991c, 9601, 9603, 9604, 9606, 9608, 9611, 9612, 9613, 9614, 9619,
9620, 9622, 9624, 9627, 9628, 9651, 9656, 9658 of this title; title
14 section 692; title 16 sections 1437, 1443; title 26 section
9507.
-FOOTNOTE-
)1(!See References in Text note below.
)2(! See References in Text note below.
-End-
-CITE-
42 USC Sec. 9608 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9608. Financial responsibility
-STATUTE-
(a) Establishment and maintenance by owner or operator of vessel;
amount; failure to obtain certification of compliance
(1) The owner or operator of each vessel (except a
nonself-propelled barge that does not carry hazardous substances as
cargo) over three hundred gross tons that uses any port or place in
the United States or the navigable waters or any offshore facility,
shall establish and maintain, in accordance with regulations
promulgated by the President, evidence of financial responsibility
of $300 per gross ton (or for a vessel carrying hazardous
substances as cargo, or $5,000,000, whichever is greater) to cover
the liability prescribed under paragraph (1) of section 9607(a) of
this title. Financial responsibility may be established by any one,
or any combination, of the following: insurance, guarantee, surety
bond, or qualification as a self-insurer. Any bond filed shall be
issued by a bonding company authorized to do business in the United
States. In cases where an owner or operator owns, operates, or
charters more than one vessel subject to this subsection, evidence
of financial responsibility need be established only to meet the
maximum liability applicable to the largest of such vessels.
(2) The Secretary of the Treasury shall withhold or revoke the
clearance required by section 91 of title 46, Appendix, of any
vessel subject to this subsection that does not have certification
furnished by the President that the financial responsibility
provisions of paragraph (1) of this subsection have been complied
with.
(3) The Secretary of Transportation, in accordance with
regulations issued by him, shall (A) deny entry to any port or
place in the United States or navigable waters to, and (B) detain
at the port or place in the United States from which it is about to
depart for any other port or place in the United States, any vessel
subject to this subsection that, upon request, does not produce
certification furnished by the President that the financial
responsibility provisions of paragraph (1) of this subsection have
been complied with.
(4) In addition to the financial responsibility provisions of
paragraph (1) of this subsection, the President shall require
additional evidence of financial responsibility for incineration
vessels in such amounts, and to cover such liabilities recognized
by law, as the President deems appropriate, taking into account the
potential risks posed by incineration and transport for
incineration, and any other factors deemed relevant.
(b) Establishment and maintenance by owner or operator of
production, etc., facilities; amount; adjustment; consolidated
form of responsibility; coverage of motor carriers
(1) Beginning not earlier than five years after December 11,
1980, the President shall promulgate requirements (for facilities
in addition to those under subtitle C of the Solid Waste Disposal
Act [42 U.S.C. 6921 et seq.] and other Federal law) that classes of
facilities establish and maintain evidence of financial
responsibility consistent with the degree and duration of risk
associated with the production, transportation, treatment, storage,
or disposal of hazardous substances. Not later than three years
after December 11, 1980, the President shall identify those classes
for which requirements will be first developed and publish notice
of such identification in the Federal Register. Priority in the
development of such requirements shall be accorded to those classes
of facilities, owners, and operators which the President determines
present the highest level of risk of injury.
(2) The level of financial responsibility shall be initially
established, and, when necessary, adjusted to protect against the
level of risk which the President in his discretion believes is
appropriate based on the payment experience of the Fund, commercial
insurers, courts settlements and judgments, and voluntary claims
satisfaction. To the maximum extent practicable, the President
shall cooperate with and seek the advice of the commercial
insurance industry in developing financial responsibility
requirements. Financial responsibility may be established by any
one, or any combination, of the following: insurance, guarantee,
surety bond, letter of credit, or qualification as a self-insurer.
In promulgating requirements under this section, the President is
authorized to specify policy or other contractual terms,
conditions, or defenses which are necessary, or which are
unacceptable, in establishing such evidence of financial
responsibility in order to effectuate the purposes of this chapter.
(3) Regulations promulgated under this subsection shall
incrementally impose financial responsibility requirements as
quickly as can reasonably be achieved but in no event more than 4
years after the date of promulgation. Where possible, the level of
financial responsibility which the President believes appropriate
as a final requirement shall be achieved through incremental,
annual increases in the requirements.
(4) Where a facility is owned or operated by more than one
person, evidence of financial responsibility covering the facility
may be established and maintained by one of the owners or
operators, or, in consolidated form, by or on behalf of two or more
owners or operators. When evidence of financial responsibility is
established in a consolidated form, the proportional share of each
participant shall be shown. The evidence shall be accompanied by a
statement authorizing the applicant to act for and in behalf of
each participant in submitting and maintaining the evidence of
financial responsibility.
(5) The requirements for evidence of financial responsibility for
motor carriers covered by this chapter shall be determined under
section 31139 of title 49.
(c) Direct action
(1) Releases from vessels
In the case of a release or threatened release from a vessel,
any claim authorized by section 9607 or 9611 of this title may be
asserted directly against any guarantor providing evidence of
financial responsibility for such vessel under subsection (a) of
this section. In defending such a claim, the guarantor may invoke
all rights and defenses which would be available to the owner or
operator under this subchapter. The guarantor may also invoke the
defense that the incident was caused by the willful misconduct of
the owner or operator, but the guarantor may not invoke any other
defense that the guarantor might have been entitled to invoke in
a proceeding brought by the owner or operator against him.
(2) Releases from facilities
In the case of a release or threatened release from a facility,
any claim authorized by section 9607 or 9611 of this title may be
asserted directly against any guarantor providing evidence of
financial responsibility for such facility under subsection (b)
of this section, if the person liable under section 9607 of this
title is in bankruptcy, reorganization, or arrangement pursuant
to the Federal Bankruptcy Code, or if, with reasonable diligence,
jurisdiction in the Federal courts cannot be obtained over a
person liable under section 9607 of this title who is likely to
be solvent at the time of judgment. In the case of any action
pursuant to this paragraph, the guarantor shall be entitled to
invoke all rights and defenses which would have been available to
the person liable under section 9607 of this title if any action
had been brought against such person by the claimant and all
rights and defenses which would have been available to the
guarantor if an action had been brought against the guarantor by
such person.
(d) Limitation of guarantor liability
(1) Total liability
The total liability of any guarantor in a direct action suit
brought under this section shall be limited to the aggregate
amount of the monetary limits of the policy of insurance,
guarantee, surety bond, letter of credit, or similar instrument
obtained from the guarantor by the person subject to liability
under section 9607 of this title for the purpose of satisfying
the requirement for evidence of financial responsibility.
(2) Other liability
Nothing in this subsection shall be construed to limit any
other State or Federal statutory, contractual, or common law
liability of a guarantor, including, but not limited to, the
liability of such guarantor for bad faith either in negotiating
or in failing to negotiate the settlement of any claim. Nothing
in this subsection shall be construed, interpreted, or applied to
diminish the liability of any person under section 9607 of this
title or other applicable law.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 108, Dec. 11, 1980, 94 Stat. 2785;
Pub. L. 99-499, title I, Secs. 108, 127(c), Oct. 17, 1986, 100
Stat. 1631, 1692.)
-REFTEXT-
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsec. (b)(1), is
title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795.
Subtitle C of the Solid Waste Disposal Act is classified generally
to subchapter III (Sec. 6921 et seq.) of chapter 82 of this title.
For complete classification of this Act to the Code, see Short
Title note set out under section 6901 of this title and Tables.
The Federal Bankruptcy Code, referred to in subsec. (c)(2),
probably means a reference to Title 11, Bankruptcy.
-COD-
CODIFICATION
In subsec. (b)(5), "section 31139 of title 49" substituted for
"section 30 of the Motor Carrier Act of 1980, Public Law 96-296" on
authority of Pub. L. 103-272, Sec. 6(b), July 5, 1994, 108 Stat.
1378, the first section of which enacted subtitles II, III, and V
to X of Title 49, Transportation.
-MISC1-
AMENDMENTS
1986 - Subsec. (a)(1). Pub. L. 99-499, Sec. 127(c)(1), inserted
"to cover the liability prescribed under paragraph (1) of section
9607(a) of this title" after "whichever is greater)".
Subsec. (a)(4). Pub. L. 99-499, Sec. 127(c)(2), added par. (4).
Subsec. (b)(2). Pub. L. 99-499, Sec. 108(a), inserted provisions
relating to evidence of financial responsibility and authority of
the President regarding establishment of that evidence.
Subsec. (b)(3). Pub. L. 99-499, Sec. 108(b), substituted "as
quickly as can reasonably be achieved but in no event more than 4
years" for "over a period of not less than three and no more than
six years".
Subsec. (c). Pub. L. 99-499, Sec. 108(c), amended subsec. (c)
generally. Prior to amendment, subsec. (c) read as follows: "Any
claim authorized by section 9607 or 9611 of this title may be
asserted directly against any guarantor providing evidence of
financial responsibility as required under this section. In
defending such a claim, the guarantor may invoke all rights and
defenses which would be available to the owner or operator under
this subchapter. The guarantor may also invoke the defense that the
incident was caused by the willful misconduct of the owner or
operator, but such guarantor may not invoke any other defense that
such guarantor might have been entitled to invoke in a proceeding
brought by the owner or operator against him."
Subsec. (d). Pub. L. 99-499, Sec. 108(c), amended subsec. (d)
generally. Prior to amendment, subsec. (d) read as follows: "Any
guarantor acting in good faith against which claims under this
chapter are asserted as a guarantor shall be liable under section
9607 of this title or section 9612(c) of this title only up to the
monetary limits of the policy of insurance or indemnity contract
such guarantor has undertaken or of the guaranty of other evidence
of financial responsibility furnished under this section, and only
to the extent that liability is not excluded by restrictive
endorsement: Provided, That this subsection shall not alter the
liability of any person under section 9607 of this title."
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 9609 of this title.
-End-
-CITE-
42 USC Sec. 9609 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9609. Civil penalties and awards
-STATUTE-
(a) Class I administrative penalty
(1) Violations
A civil penalty of not more than $25,000 per violation may be
assessed by the President in the case of any of the following -
(A) A violation of the requirements of section 9603(a) or (b)
of this title (relating to notice).
(B) A violation of the requirements of section 9603(d)(2) of
this title (relating to destruction of records, etc.).
(C) A violation of the requirements of section 9608 of this
title (relating to financial responsibility, etc.), the
regulations issued under section 9608 of this title, or with
any denial or detention order under section 9608 of this title.
(D) A violation of an order under section 9622(d)(3) of this
title (relating to settlement agreements for action under
section 9604(b) of this title).
(E) Any failure or refusal referred to in section 9622(l) of
this title (relating to violations of administrative orders,
consent decrees, or agreements under section 9620 of this
title).
(2) Notice and hearings
No civil penalty may be assessed under this subsection unless
the person accused of the violation is given notice and
opportunity for a hearing with respect to the violation.
(3) Determining amount
In determining the amount of any penalty assessed pursuant to
this subsection, the President shall take into account the
nature, circumstances, extent and gravity of the violation or
violations and, with respect to the violator, ability to pay, any
prior history of such violations, the degree of culpability,
economic benefit or savings (if any) resulting from the
violation, and such other matters as justice may require.
(4) Review
Any person against whom a civil penalty is assessed under this
subsection may obtain review thereof in the appropriate district
court of the United States by filing a notice of appeal in such
court within 30 days from the date of such order and by
simultaneously sending a copy of such notice by certified mail to
the President. The President shall promptly file in such court a
certified copy of the record upon which such violation was found
or such penalty imposed. If any person fails to pay an assessment
of a civil penalty after it has become a final and unappealable
order or after the appropriate court has entered final judgment
in favor of the United States, the President may request the
Attorney General of the United States to institute a civil action
in an appropriate district court of the United States to collect
the penalty, and such court shall have jurisdiction to hear and
decide any such action. In hearing such action, the court shall
have authority to review the violation and the assessment of the
civil penalty on the record.
(5) Subpoenas
The President may issue subpoenas for the attendance and
testimony of witnesses and the production of relevant papers,
books, or documents in connection with hearings under this
subsection. In case of contumacy or refusal to obey a subpoena
issued pursuant to this paragraph and served upon any person, the
district court of the United States for any district in which
such person is found, resides, or transacts business, upon
application by the United States and after notice to such person,
shall have jurisdiction to issue an order requiring such person
to appear and give testimony before the administrative law judge
or to appear and produce documents before the administrative law
judge, or both, and any failure to obey such order of the court
may be punished by such court as a contempt thereof.
(b) Class II administrative penalty
A civil penalty of not more than $25,000 per day for each day
during which the violation continues may be assessed by the
President in the case of any of the following -
(1) A violation of the notice requirements of section 9603(a)
or (b) of this title.
(2) A violation of section 9603(d)(2) of this title (relating
to destruction of records, etc.).
(3) A violation of the requirements of section 9608 of this
title (relating to financial responsibility, etc.), the
regulations issued under section 9608 of this title, or with any
denial or detention order under section 9608 of this title.
(4) A violation of an order under section 9622(d)(3) of this
title (relating to settlement agreements for action under section
9604(b) of this title).
(5) Any failure or refusal referred to in section 9622(l) of
this title (relating to violations of administrative orders,
consent decrees, or agreements under section 9620 of this title).
In the case of a second or subsequent violation the amount of such
penalty may be not more than $75,000 for each day during which the
violation continues. Any civil penalty under this subsection shall
be assessed and collected in the same manner, and subject to the
same provisions, as in the case of civil penalties assessed and
collected after notice and opportunity for hearing on the record in
accordance with section 554 of title 5. In any proceeding for the
assessment of a civil penalty under this subsection the President
may issue subpoenas for the attendance and testimony of witnesses
and the production of relevant papers, books, and documents and may
promulgate rules for discovery procedures. Any person who requested
a hearing with respect to a civil penalty under this subsection and
who is aggrieved by an order assessing the civil penalty may file a
petition for judicial review of such order with the United States
Court of Appeals for the District of Columbia Circuit or for any
other circuit in which such person resides or transacts business.
Such a petition may only be filed within the 30-day period
beginning on the date the order making such assessment was issued.
(c) Judicial assessment
The President may bring an action in the United States district
court for the appropriate district to assess and collect a penalty
of not more than $25,000 per day for each day during which the
violation (or failure or refusal) continues in the case of any of
the following -
(1) A violation of the notice requirements of section 9603(a)
or (b) of this title.
(2) A violation of section 9603(d)(2) of this title (relating
to destruction of records, etc.).
(3) A violation of the requirements of section 9608 of this
title (relating to financial responsibility, etc.), the
regulations issued under section 9608 of this title, or with any
denial or detention order under section 9608 of this title.
(4) A violation of an order under section 9622(d)(3) of this
title (relating to settlement agreements for action under section
9604(b) of this title).
(5) Any failure or refusal referred to in section 9622(l) of
this title (relating to violations of administrative orders,
consent decrees, or agreements under section 9620 of this title).
In the case of a second or subsequent violation (or failure or
refusal), the amount of such penalty may be not more than $75,000
for each day during which the violation (or failure or refusal)
continues. For additional provisions providing for judicial
assessment of civil penalties for failure to comply with a request
or order under section 9604(e) of this title (relating to
information gathering and access authorities), see section 9604(e)
of this title.
(d) Awards
The President may pay an award of up to $10,000 to any individual
who provides information leading to the arrest and conviction of
any person for a violation subject to a criminal penalty under this
chapter, including any violation of section 9603 of this title and
any other violation referred to in this section. The President
shall, by regulation, prescribe criteria for such an award and may
pay any award under this subsection from the Fund, as provided in
section 9611 of this title.
(e) Procurement procedures
Notwithstanding any other provision of law, any executive agency
may use competitive procedures or procedures other than competitive
procedures to procure the services of experts for use in preparing
or prosecuting a civil or criminal action under this chapter,
whether or not the expert is expected to testify at trial. The
executive agency need not provide any written justification for the
use of procedures other than competitive procedures when procuring
such expert services under this chapter and need not furnish for
publication in the Commerce Business Daily or otherwise any notice
of solicitation or synopsis with respect to such procurement.
(f) Savings clause
Action taken by the President pursuant to this section shall not
affect or limit the President's authority to enforce any provisions
of this chapter.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 109, Dec. 11, 1980, 94 Stat. 2787;
Pub. L. 99-499, title I, Sec. 109(c), Oct. 17, 1986, 100 Stat.
1633.)
-MISC1-
AMENDMENTS
1986 - Pub. L. 99-499 amended section generally. Prior to
amendment, section read as follows: "Any person who, after notice
and an opportunity for a hearing, is found to have failed to comply
with the requirements of section 9608 of this title, the
regulations issued thereunder, or with any denial or detention
order shall be liable to the United States for a civil penalty, not
to exceed $10,000 for each day of violation."
COORDINATION OF TITLES I TO IV OF PUB. L. 99-499
Any provision of titles I to IV of Pub. L. 99-499, imposing any
tax, premium, or fee; establishing any trust fund; or authorizing
expenditures from any trust fund, to have no force or effect, see
section 531 of Pub. L. 99-499, set out as a note under section 1 of
Title 26, Internal Revenue Code.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9611, 9622 of this title.
-End-
-CITE-
42 USC Sec. 9610 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9610. Employee protection
-STATUTE-
(a) Activities of employee subject to protection
No person shall fire or in any other way discriminate against, or
cause to be fired or discriminated against, any employee or any
authorized representative of employees by reason of the fact that
such employee or representative has provided information to a State
or to the Federal Government, filed, instituted, or caused to be
filed or instituted any proceeding under this chapter, or has
testified or is about to testify in any proceeding resulting from
the administration or enforcement of the provisions of this
chapter.
(b) Administrative grievance procedure in cases of alleged
violations
Any employee or a representative of employees who believes that
he has been fired or otherwise discriminated against by any person
in violation of subsection (a) of this section may, within thirty
days after such alleged violation occurs, apply to the Secretary of
Labor for a review of such firing or alleged discrimination. A copy
of the application shall be sent to such person, who shall be the
respondent. Upon receipt of such application, the Secretary of
Labor shall cause such investigation to be made as he deems
appropriate. Such investigation shall provide an opportunity for a
public hearing at the request of any party to such review to enable
the parties to present information relating to such alleged
violation. The parties shall be given written notice of the time
and place of the hearing at least five days prior to the hearing.
Any such hearing shall be of record and shall be subject to section
554 of title 5. Upon receiving the report of such investigation,
the Secretary of Labor shall make findings of fact. If he finds
that such violation did occur, he shall issue a decision,
incorporating an order therein and his findings, requiring the
party committing such violation to take such affirmative action to
abate the violation as the Secretary of Labor deems appropriate,
including, but not limited to, the rehiring or reinstatement of the
employee or representative of employees to his former position with
compensation. If he finds that there was no such violation, he
shall issue an order denying the application. Such order issued by
the Secretary of Labor under this subparagraph shall be subject to
judicial review in the same manner as orders and decisions are
subject to judicial review under this chapter.
(c) Assessment of costs and expenses against violator subsequent to
issuance of order of abatement
Whenever an order is issued under this section to abate such
violation, at the request of the applicant a sum equal to the
aggregate amount of all costs and expenses (including the
attorney's fees) determined by the Secretary of Labor to have been
reasonably incurred by the applicant for, or in connection with,
the institution and prosecution of such proceedings, shall be
assessed against the person committing such violation.
(d) Defenses
This section shall have no application to any employee who acting
without discretion from his employer (or his agent) deliberately
violates any requirement of this chapter.
(e) Presidential evaluations of potential loss of shifts of
employment resulting from administration or enforcement of
provisions; investigations; procedures applicable, etc.
The President shall conduct continuing evaluations of potential
loss of shifts of employment which may result from the
administration or enforcement of the provisions of this chapter,
including, where appropriate, investigating threatened plant
closures or reductions in employment allegedly resulting from such
administration or enforcement. Any employee who is discharged, or
laid off, threatened with discharge or layoff, or otherwise
discriminated against by any person because of the alleged results
of such administration or enforcement, or any representative of
such employee, may request the President to conduct a full
investigation of the matter and, at the request of any party, shall
hold public hearings, require the parties, including the employer
involved, to present information relating to the actual or
potential effect of such administration or enforcement on
employment and any alleged discharge, layoff, or other
discrimination, and the detailed reasons or justification
therefore.)1(! Any such hearing shall be of record and shall be
subject to section 554 of title 5. Upon receiving the report of
such investigation, the President shall make findings of fact as to
the effect of such administration or enforcement on employment and
on the alleged discharge, layoff, or discrimination and shall make
such recommendations as he deems appropriate. Such report,
findings, and recommendations shall be available to the public.
Nothing in this subsection shall be construed to require or
authorize the President or any State to modify or withdraw any
action, standard, limitation, or any other requirement of this
chapter.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 110, Dec. 11, 1980, 94 Stat. 2787.)
-FOOTNOTE-
)1(! So in original.
-End-
-CITE-
42 USC Sec. 9611 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9611. Uses of Fund
-STATUTE-
(a) In general
For the purposes specified in this section there is authorized to
be appropriated from the Hazardous Substance Superfund established
under subchapter A of chapter 98 of title 26 not more than
$8,500,000,000 for the 5-year period beginning on October 17, 1986,
and not more than $5,100,000,000 for the period commencing October
1, 1991, and ending September 30, 1994, and such sums shall remain
available until expended. The preceding sentence constitutes a
specific authorization for the funds appropriated under title II of
Public Law 99-160 (relating to payment to the Hazardous Substances
Trust Fund). The President shall use the money in the Fund for the
following purposes:
(1) Payment of governmental response costs incurred pursuant to
section 9604 of this title, including costs incurred pursuant to
the Intervention on the High Seas Act [33 U.S.C. 1471 et seq.].
(2) Payment of any claim for necessary response costs incurred
by any other person as a result of carrying out the national
contingency plan established under section 1321(c) )1(! of title
33 and amended by section 9605 of this title: Provided, however,
That such costs must be approved under said plan and certified by
the responsible Federal official.
(3) Payment of any claim authorized by subsection (b) of this
section and finally decided pursuant to section 9612 of this
title, including those costs set out in subsection 9612(c)(3) of
this title.
(4) Payment of costs specified under subsection (c) of this
section.
(5) Grants for technical assistance. - The cost of grants under
section 9617(e) of this title (relating to public participation
grants for technical assistance).
(6) Lead contaminated soil. - Payment of not to exceed
$15,000,000 for the costs of a pilot program for removal,
decontamination, or other action with respect to
lead-contaminated soil in one to three different metropolitan
areas.
The President shall not pay for any administrative costs or
expenses out of the Fund unless such costs and expenses are
reasonably necessary for and incidental to the implementation of
this subchapter.
(b) Additional authorized purposes
(1) In general
Claims asserted and compensable but unsatisfied under
provisions of section 1321 of title 33, which are modified by
section 304 of this Act may be asserted against the Fund under
this subchapter; and other claims resulting from a release or
threat of release of a hazardous substance from a vessel or a
facility may be asserted against the Fund under this subchapter
for injury to, or destruction or loss of, natural resources,
including cost for damage assessment: Provided, however, That any
such claim may be asserted only by the President, as trustee, for
natural resources over which the United States has sovereign
rights, or natural resources within the territory or the fishery
conservation zone of the United States to the extent they are
managed or protected by the United States, or by any State for
natural resources within the boundary of that State belonging to,
managed by, controlled by, or appertaining to the State, or by
any Indian tribe or by the United States acting on behalf of any
Indian tribe for natural resources belonging to, managed by,
controlled by, or appertaining to such tribe, or held in trust
for the benefit of such tribe, or belonging to a member of such
tribe if such resources are subject to a trust restriction on
alienation.
(2) Limitation on payment of natural resource claims
(A) General requirements
No natural resource claim may be paid from the Fund unless
the President determines that the claimant has exhausted all
administrative and judicial remedies to recover the amount of
such claim from persons who may be liable under section 9607 of
this title.
(B) Definition
As used in this paragraph, the term "natural resource claim"
means any claim for injury to, or destruction or loss of,
natural resources. The term does not include any claim for the
costs of natural resource damage assessment.
(c) Peripheral matters and limitations
Uses of the Fund under subsection (a) of this section include -
(1) The costs of assessing both short-term and long-term injury
to, destruction of, or loss of any natural resources resulting
from a release of a hazardous substance.
(2) The costs of Federal or State or Indian tribe efforts in
the restoration, rehabilitation, or replacement or acquiring the
equivalent of any natural resources injured, destroyed, or lost
as a result of a release of a hazardous substance.
(3) Subject to such amounts as are provided in appropriation
Acts, the costs of a program to identify, investigate, and take
enforcement and abatement action against releases of hazardous
substances.
(4) Any costs incurred in accordance with subsection (m) of
this section (relating to ATSDR) and section 9604(i) of this
title, including the costs of epidemiologic and laboratory
studies, health assessments, preparation of toxicologic profiles,
development and maintenance of a registry of persons exposed to
hazardous substances to allow long-term health effect studies,
and diagnostic services not otherwise available to determine
whether persons in populations exposed to hazardous substances in
connection with a release or a suspected release are suffering
from long-latency diseases.
(5) Subject to such amounts as are provided in appropriation
Acts, the costs of providing equipment and similar overhead,
related to the purposes of this chapter and section 1321 of title
33, and needed to supplement equipment and services available
through contractors or other non-Federal entities, and of
establishing and maintaining damage assessment capability, for
any Federal agency involved in strike forces, emergency task
forces, or other response teams under the national contingency
plan.
(6) Subject to such amounts as are provided in appropriation
Acts, the costs of a program to protect the health and safety of
employees involved in response to hazardous substance releases.
Such program shall be developed jointly by the Environmental
Protection Agency, the Occupational Safety and Health
Administration, and the National Institute for Occupational
Safety and Health and shall include, but not be limited to,
measures for identifying and assessing hazards to which persons
engaged in removal, remedy, or other response to hazardous
substances may be exposed, methods to protect workers from such
hazards, and necessary regulatory and enforcement measures to
assure adequate protection of such employees.
(7) Evaluation costs under petition provisions of section
9605(d). - Costs incurred by the President in evaluating
facilities pursuant to petitions under section 9605(d) of this
title (relating to petitions for assessment of release).
(8) Contract costs under section 9604(a)(1). - The costs of
contracts or arrangements entered into under section 9604(a)(1)
of this title to oversee and review the conduct of remedial
investigations and feasibility studies undertaken by persons
other than the President and the costs of appropriate Federal and
State oversight of remedial activities at National Priorities
List sites resulting from consent orders or settlement
agreements.
(9) Acquisition costs under section 9604(j). - The costs
incurred by the President in acquiring real estate or interests
in real estate under section 9604(j) of this title (relating to
acquisition of property).
(10) Research, development, and demonstration costs under
section 9660. - The cost of carrying out section 9660 of this
title (relating to research, development, and demonstration),
except that the amounts available for such purposes shall not
exceed the amounts specified in subsection (n) of this section.
(11) Local government reimbursement. - Reimbursements to local
governments under section 9623 of this title, except that during
the 8-fiscal year period beginning October 1, 1986, not more than
0.1 percent of the total amount appropriated from the Fund may be
used for such reimbursements.
(12) Worker training and education grants. - The costs of
grants under section 9660a of this title for training and
education of workers to the extent that such costs do not exceed
$20,000,000 for each of the fiscal years 1987, 1988, 1989, 1990,
1991, 1992, 1993, and 1994.
(13) Awards under section 9609. - The costs of any awards
granted under section 9609(d) of this title.
(14) Lead poisoning study. - The cost of carrying out the study
under subsection (f) of section 118 of the Superfund Amendments
and Reauthorization Act of 1986 (relating to lead poisoning in
children).
(d) Additional limitations
(1) No money in the Fund may be used under subsection (c)(1) and
(2) of this section, nor for the payment of any claim under
subsection (b) of this section, where the injury, destruction, or
loss of natural resources and the release of a hazardous substance
from which such damages resulted have occurred wholly before
December 11, 1980.
(2) No money in the Fund may be used for the payment of any claim
under subsection (b) of this section where such expenses are
associated with injury or loss resulting from long-term exposure to
ambient concentrations of air pollutants from multiple or diffuse
sources.
(e) Funding requirements respecting moneys in Fund; limitation on
certain claims; Fund use outside Federal property boundaries
(1) Claims against or presented to the Fund shall not be valid or
paid in excess of the total money in the Fund at any one time. Such
claims become valid only when additional money is collected,
appropriated, or otherwise added to the Fund. Should the total
claims outstanding at any time exceed the current balance of the
Fund, the President shall pay such claims, to the extent authorized
under this section, in full in the order in which they were finally
determined.
(2) In any fiscal year, 85 percent of the money credited to the
Fund under subchapter II )2(! of this chapter shall be available
only for the purposes specified in paragraphs (1), (2), and (4) of
subsection (a) of this section. No money in the Fund may be used
for the payment of any claim under subsection (a)(3) or subsection
(b) of this section in any fiscal year for which the President
determines that all of the Fund is needed for response to threats
to public health from releases or threatened releases of hazardous
substances.
(3) No money in the Fund shall be available for remedial action,
other than actions specified in subsection (c) of this section,
with respect to federally owned facilities; except that money in
the Fund shall be available for the provision of alternative water
supplies (including the reimbursement of costs incurred by a
municipality) in any case involving groundwater contamination
outside the boundaries of a federally owned facility in which the
federally owned facility is not the only potentially responsible
party.
(4) Paragraphs (1) and (4) of subsection (a) of this section
shall in the aggregate be subject to such amounts as are provided
in appropriation Acts.
(f) Obligation of moneys by Federal officials; obligation of moneys
or settlement of claims by State officials or Indian tribe
The President is authorized to promulgate regulations designating
one or more Federal officials who may obligate money in the Fund in
accordance with this section or portions thereof. The President is
also authorized to delegate authority to obligate money in the Fund
or to settle claims to officials of a State or Indian tribe
operating under a contract or cooperative agreement with the
Federal Government pursuant to section 9604(d) of this title.
(g) Notice to potential injured parties by owner and operator of
vessel or facility causing release of substance; rules and
regulations
The President shall provide for the promulgation of rules and
regulations with respect to the notice to be provided to potential
injured parties by an owner and operator of any vessel, or facility
from which a hazardous substance has been released. Such rules and
regulations shall consider the scope and form of the notice which
would be appropriate to carry out the purposes of this subchapter.
Upon promulgation of such rules and regulations, the owner and
operator of any vessel or facility from which a hazardous substance
has been released shall provide notice in accordance with such
rules and regulations. With respect to releases from public
vessels, the President shall provide such notification as is
appropriate to potential injured parties. Until the promulgation of
such rules and regulations, the owner and operator of any vessel or
facility from which a hazardous substance has been released shall
provide reasonable notice to potential injured parties by
publication in local newspapers serving the affected area.
(h) Repealed. Pub. L. 99-499, title I, Sec. 111(c)(2), Oct. 17,
1986, 100 Stat. 1643
(i) Restoration, etc., of natural resources
Except in a situation requiring action to avoid an irreversible
loss of natural resources or to prevent or reduce any continuing
danger to natural resources or similar need for emergency action,
funds may not be used under this chapter for the restoration,
rehabilitation, or replacement or acquisition of the equivalent of
any natural resources until a plan for the use of such funds for
such purposes has been developed and adopted by affected Federal
agencies and the Governor or Governors of any State having
sustained damage to natural resources within its borders, belonging
to, managed by or appertaining to such State, and by the governing
body of any Indian tribe having sustained damage to natural
resources belonging to, managed by, controlled by, or appertaining
to such tribe, or held in trust for the benefit of such tribe, or
belonging to a member of such tribe if such resources are subject
to a trust restriction on alienation, after adequate public notice
and opportunity for hearing and consideration of all public
comment.
(j) Use of Post-closure Liability Fund
The President shall use the money in the Post-closure Liability
Fund for any of the purposes specified in subsection (a) of this
section with respect to a hazardous waste disposal facility for
which liability has transferred to such fund under section 9607(k)
of this title, and, in addition, for payment of any claim or
appropriate request for costs of response, damages, or other
compensation for injury or loss under section 9607 of this title or
any other State or Federal law, resulting from a release of a
hazardous substance from such a facility.
(k) Inspector General
In each fiscal year, the Inspector General of each department,
agency, or instrumentality of the United States which is carrying
out any authority of this chapter shall conduct an annual audit of
all payments, obligations, reimbursements, or other uses of the
Fund in the prior fiscal year, to assure that the Fund is being
properly administered and that claims are being appropriately and
expeditiously considered. The audit shall include an examination of
a sample of agreements with States (in accordance with the
provisions of the Single Audit Act [31 U.S.C. 7501 et seq.])
carrying out response actions under this subchapter and an
examination of remedial investigations and feasibility studies
prepared for remedial actions. The Inspector General shall submit
to the Congress an annual report regarding the audit report
required under this subsection. The report shall contain such
recommendations as the Inspector General deems appropriate. Each
department, agency, or instrumentality of the United States shall
cooperate with its inspector general in carrying out this
subsection.
(l) Foreign claimants
To the extent that the provisions of this chapter permit, a
foreign claimant may assert a claim to the same extent that a
United States claimant may assert a claim if -
(1) the release of a hazardous substance occurred (A) in the
navigable waters or (B) in or on the territorial sea or adjacent
shoreline of a foreign country of which the claimant is a
resident;
(2) the claimant is not otherwise compensated for his loss;
(3) the hazardous substance was released from a facility or
from a vessel located adjacent to or within the navigable waters
or was discharged in connection with activities conducted under
the Outer Continental Shelf Lands Act, as amended (43 U.S.C. 1331
et seq.) or the Deepwater Port Act of 1974, as amended (33 U.S.C.
1501 et seq.); and
(4) recovery is authorized by a treaty or an executive
agreement between the United States and foreign country involved,
or if the Secretary of State, in consultation with the Attorney
General and other appropriate officials, certifies that such
country provides a comparable remedy for United States claimants.
(m) Agency for Toxic Substances and Disease Registry
There shall be directly available to the Agency for Toxic
Substances and Disease Registry to be used for the purpose of
carrying out activities described in subsection (c)(4) of this
section and section 9604(i) of this title not less than $50,000,000
per fiscal year for each of fiscal years 1987 and 1988, not less
than $55,000,000 for fiscal year 1989, and not less than
$60,000,000 per fiscal year for each of fiscal years 1990, 1991,
1992, 1993, and 1994. Any funds so made available which are not
obligated by the end of the fiscal year in which made available
shall be returned to the Fund.
(n) Limitations on research, development, and demonstration program
(1) Section 9660(b)
For each of the fiscal years 1987, 1988, 1989, 1990, 1991,
1992, 1993, and 1994, not more than $20,000,000 of the amounts
available in the Fund may be used for the purposes of carrying
out the applied research, development, and demonstration program
for alternative or innovative technologies and training program
authorized under section 9660(b) of this title (relating to
research, development, and demonstration) other than basic
research. Such amounts shall remain available until expended.
(2) Section 9660(a)
From the amounts available in the Fund, not more than the
following amounts may be used for the purposes of section 9660(a)
of this title (relating to hazardous substance research,
demonstration, and training activities):
(A) For the fiscal year 1987, $3,000,000.
(B) For the fiscal year 1988, $10,000,000.
(C) For the fiscal year 1989, $20,000,000.
(D) For the fiscal year 1990, $30,000,000.
(E) For each of the fiscal years 1991, 1992, 1993, and 1994,
$35,000,000.
No more than 10 percent of such amounts shall be used for
training under section 9660(a) of this title in any fiscal year.
(3) Section 9660(d)
For each of the fiscal years 1987, 1988, 1989, 1990, 1991,
1992, 1993, and 1994, not more than $5,000,000 of the amounts
available in the Fund may be used for the purposes of section
9660(d) of this title (relating to university hazardous substance
research centers).
(o) Notification procedures for limitations on certain payments
Not later than 90 days after October 17, 1986, the President
shall develop and implement procedures to adequately notify, as
soon as practicable after a site is included on the National
Priorities List, concerned local and State officials and other
concerned persons of the limitations, set forth in subsection
(a)(2) of this section, on the payment of claims for necessary
response costs incurred with respect to such site.
(p) General revenue share of Superfund
(1) In general
The following sums are authorized to be appropriated, out of
any money in the Treasury not otherwise appropriated, to the
Hazardous Substance Superfund:
(A) For fiscal year 1987, $212,500,000.
(B) For fiscal year 1988, $212,500,000.
(C) For fiscal year 1989, $212,500,000.
(D) For fiscal year 1990, $212,500,000.
(E) For fiscal year 1991, $212,500,000.
(F) For fiscal year 1992, $212,500,000.
(G) For fiscal year 1993, $212,500,000.
(H) For fiscal year 1994, $212,500,000.
In addition there is authorized to be appropriated to the
Hazardous Substance Superfund for each fiscal year an amount
equal to so much of the aggregate amount authorized to be
appropriated under this subsection (and paragraph (2) of section
9631(b) )3(! of this title) as has not been appropriated before
the beginning of the fiscal year involved.
(2) Computation
The amounts authorized to be appropriated under paragraph (1)
of this subsection in a given fiscal year shall be available only
to the extent that such amount exceeds the amount determined by
the Secretary under section 9507(b)(2) of title 26 for the prior
fiscal year.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 111, Dec. 11, 1980, 94 Stat. 2788;
Pub. L. 99-499, title I, Sec. 111, title II, Sec. 207(d), Oct. 17,
1986, 100 Stat. 1642, 1706; Pub. L. 101-144, title III, Nov. 9,
1989, 103 Stat. 857; Pub. L. 101-508, title VI, Sec. 6301, Nov. 5,
1990, 104 Stat. 1388-319.)
-REFTEXT-
REFERENCES IN TEXT
Title II of Public Law 99-160 (relating to payment to the
Hazardous Substances Trust Fund), referred to in subsec. (a), is
title II of Pub. L. 99-160, Nov. 25, 1985, 99 Stat. 914. Provisions
of title II relating to the Hazardous Substance Response Trust Fund
are not classified to the Code. For complete classification of this
Act to the Code, see Tables.
The Intervention on the High Seas Act, referred to in subsec.
(a)(1), is Pub. L. 93-248, Feb. 5, 1974, 88 Stat. 8, as amended,
which is classified generally to chapter 28 (Sec. 1471 et seq.) of
Title 33, Navigation and Navigable Waters. For complete
classification of this Act to the Code, see Short Title note set
out under section 1471 of Title 33 and Tables.
Section 1321(c) of title 33, referred to in subsec. (a)(2), was
amended generally by Pub. L. 101-380, title IV, Sec. 4201(a), Aug.
18, 1990, 104 Stat. 523, and no longer contains provisions
establishing a National Contingency Plan. However, such provisions
are contained in section 1321(d) of Title 33, Navigation and
Navigable Waters.
Section 304 of this Act, referred to in subsec. (b), is section
304 of Pub. L. 96-510, title III, Dec. 11, 1980, 94 Stat. 2809,
which enacted section 9654 of this title and amended section 1364
of Title 33.
Fishery conservation zone, referred to in subsec. (b), probably
means the fishery conservation zone established by section 1811 of
Title 16, Conservation, which as amended generally by Pub. L.
99-659, title I, Sec. 101(b), Nov. 14, 1986, 100 Stat. 3706,
relates to United States sovereign rights and fishery management
authority over fish within the exclusive economic zone as defined
in section 1802 of Title 16.
Subsection (f) of section 118 of the Superfund Amendments and
Reauthorization Act of 1986, referred to in subsec. (c)(14), is
section 118(f) of Pub. L. 99-499, title I, Oct. 17, 1986, 100 Stat.
1657, which is not classified to the Code.
Subchapter II of this chapter, referred to in subsec. (e)(2), was
in the original "title II of this Act", meaning title II of Pub. L.
96-510, Dec. 11, 1980, 94 Stat. 2796, known as the Hazardous
Substance Response Revenue Act of 1980, which enacted subchapter II
of this chapter and sections 4611, 4612, 4661, 4662, 4681, and 4682
of Title 26, Internal Revenue Code. Sections 221 to 223 and 232 of
Pub. L. 96-510, which were classified to sections 9631 to 9633 and
9641 of this title, comprising subchapter II of this chapter, were
repealed by Pub. L. 99-499, title V, Secs. 514(b), 517(c)(1), Oct.
17, 1986, 100 Stat. 1767, 1774. For complete classification of
title II to the Code, see Short Title of 1980 Amendment note set
out under section 1 of Title 26 and Tables.
The Single Audit Act, referred to in subsec. (k), probably means
the Single Audit Act of 1984, Pub. L. 98-502, Oct. 19, 1984, 98
Stat. 2327, as amended, which is classified generally to chapter 75
(Sec. 7501 et seq.) of Title 31, Money and Finance. For complete
classification of this Act to the Code, see Short Title note set
out under section 7501 of Title 31 and Tables.
The Outer Continental Shelf Lands Act as amended, referred to in
subsec. (l)(3), is act Aug. 7, 1953, ch. 345, 67 Stat. 462, as
amended, which is classified generally to subchapter III (Sec. 1331
et seq.) of chapter 29 of Title 43, Public Lands. For complete
classification of this Act to the Code, see Short Title note set
out under section 1331 of Title 43 and Tables.
The Deepwater Port Act of 1974, as amended, referred to in
subsec. (l)(3), is Pub. L. 93-627, Jan. 3, 1975, 88 Stat. 2126, as
amended, which is classified generally to chapter 29 (Sec. 1501 et
seq.) of Title 33, Navigation and Navigable Waters. For complete
classification of this Act to the Code, see Short Title note set
out under section 1501 of Title 33 and Tables.
Section 9631(b) of this title, referred to in subsec. (p)(1), was
repealed by Pub. L. 99-499, title V, Sec. 517(c)(1), Oct. 17, 1986,
100 Stat. 1774.
-MISC1-
AMENDMENTS
1990 - Subsec. (a). Pub. L. 101-508, Sec. 6301(1), inserted "and
not more than $5,100,000,000 for the period commencing October 1,
1991, and ending September 30, 1994," after "October 17, 1986," in
introductory provisions.
Subsec. (c)(11). Pub. L. 101-508, Sec. 6301(2), substituted
"8-fiscal year period" for "5-fiscal-year period".
Subsec. (c)(12). Pub. L. 101-508, Sec. 6301(3), substituted
"1991, 1992, 1993, and 1994" for "and 1991".
Subsec. (m). Pub. L. 101-508, Sec. 6301(4), substituted "1990,
1991, 1992, 1993, and 1994" for "1990 and 1991".
Subsec. (n)(1). Pub. L. 101-508, Sec. 6301(5), substituted "1991,
1992, 1993, and 1994" for "and 1991".
Subsec. (n)(2)(E). Pub. L. 101-508, Sec. 6301(6), added subpar.
(E) and struck out former subpar. (E) which read as follows: "For
the fiscal year 1991, $35,000,000."
Subsec. (n)(3). Pub. L. 101-508, Sec. 6301(7), substituted "1991,
1992, 1993, and 1994" for "and 1991".
Subsec. (p)(1)(F) to (H). Pub. L. 101-508, Sec. 6301(8), added
subpars. (F) to (H).
1989 - Subsec. (c)(12). Pub. L. 101-144, which directed that
section 9611(c)(12) of the Superfund Amendments and Reauthorization
Act of 1986 be amended by substituting "$20,000,000" for
"$10,000,000", was executed by making the substitution in subsec.
(c)(12) of this section, as the probable intent of Congress because
the Superfund Amendments and Reauthorization Act of 1986, Pub. L.
99-499, does not contain a section 9611, but section 111(d)(2) of
Pub. L. 99-499 enacted subsec. (c)(12) of this section.
1986 - Subsec. (a). Pub. L. 99-499, Sec. 111(a), (b), inserted
heading and "For the purposes specified in this section there is
authorized to be appropriated from the Hazardous Substance
Superfund established under subchapter A of chapter 98 of title 26
not more than $8,500,000,000 for the 5-year period beginning on
October 17, 1986, and such sums shall remain available until
expended. The preceding sentence constitutes a specific
authorization for the funds appropriated under title II of Public
Law 99-160 (relating to payment to the Hazardous Substances Trust
Fund)." in introductory provisions, substituted "Payment" for
"payment" in pars. (1) to (4), a period for a semicolon in pars.
(1) and (2), and a period for "; and" in par. (3), and added pars.
(5) and (6).
Subsec. (b). Pub. L. 99-499, Secs. 111(c)(1), 207(d)(1),
designated existing provisions as par. (1), inserted ", or by any
Indian tribe or by the United States acting on behalf of any Indian
tribe for natural resources belonging to, managed by, controlled
by, or appertaining to such tribe, or held in trust for the benefit
of such tribe, or belonging to a member of such tribe if such
resources are subject to a trust restriction on alienation" in par.
(1), and added par. (2).
Subsec. (c). Pub. L. 99-499, Secs. 111(d), 207(d)(2), in par.
(1), substituted "The" for "the" and substituted a period for the
semicolon at end, in par. (2), substituted "The" for "the",
inserted "or Indian tribe" and substituted a period for the
semicolon at end, in par. (3), substituted "Subject" for "subject"
and substituted a period for the semicolon at end, in par. (4),
substituted "Any costs incurred in accordance with subsection (m)
of this section (relating to ATSDR) and section 9604(i) of this
title, including the costs of epidemiologic and laboratory studies,
health assessments, preparation of toxicologic profiles" for "the
costs of epidemiologic studies" and substituted a period for the
semicolon at end, in par. (5), substituted a period for "; and", in
pars. (5) and (6), substituted "Subject" for "subject", and added
pars. (7) to (14).
Subsec. (e)(2). Pub. L. 99-499, Sec. 111(e), inserted at end "No
money in the Fund may be used for the payment of any claim under
subsection (a)(3) or subsection (b) of this section in any fiscal
year for which the President determines that all of the Fund is
needed for response to threats to public health from releases or
threatened releases of hazardous substances."
Subsec. (e)(3). Pub. L. 99-499, Sec. 111(f), inserted before the
period at end "; except that money in the Fund shall be available
for the provision of alternative water supplies (including the
reimbursement of costs incurred by a municipality) in any case
involving groundwater contamination outside the boundaries of a
federally owned facility in which the federally owned facility is
not the only potentially responsible party".
Subsec. (f). Pub. L. 99-499, Sec. 207(d)(3), inserted "or Indian
tribe".
Subsec. (h). Pub. L. 99-499, Sec. 111(c)(2), struck out subsec.
(h) which read as follows:
"(1) In accordance with regulations promulgated under section
9651(c) of this title, damages for injury to, destruction of, or
loss of natural resources resulting from a release of a hazardous
substance, for the purposes of this chapter and section 1321(f)(4)
and (5) of title 33, shall be assessed by Federal officials
designated by the President under the national contingency plan
published under section 9605 of this title, and such officials
shall act for the President as trustee under this section and
section 1321(f)(5) of title 33.
"(2) Any determination or assessment of damages for injury to,
destruction of, or loss of natural resources for the purposes of
this chapter and section 1321(f)(4) and (5) of title 33 shall have
the force and effect of a rebuttable presumption on behalf of any
claimant (including a trustee under section 9607 of this title or a
Federal agency) in any judicial or adjudicatory administrative
proceeding under this chapter or section 1321 of title 33."
Subsec. (i). Pub. L. 99-499, Sec. 207(d)(4), inserted "and by the
governing body of any Indian tribe having sustained damage to
natural resources belonging to, managed by, controlled by, or
appertaining to such tribe, or held in trust for the benefit of
such tribe, or belonging to a member of such tribe if such
resources are subject to a trust restriction on alienation," after
"State,".
Subsec. (k). Pub. L. 99-499, Sec. 111(g), amended subsec. (k)
generally. Prior to amendment, subsec. (k) read as follows: "The
Inspector General of each department or agency to which
responsibility to obligate money in the Fund is delegated shall
provide an audit review team to audit all payments, obligations,
reimbursements, or other uses of the Fund, to assure that the Fund
is being properly administered and that claims are being
appropriately and expeditiously considered. Each such Inspector
General shall submit to the Congress an interim report one year
after the establishment of the Fund and a final report two years
after the establishment of the Fund. Each such Inspector General
shall thereafter provide such auditing of the Fund as is
appropriate. Each Federal agency shall cooperate with the Inspector
General in carrying out this subsection."
Subsecs. (m) to (p). Pub. L. 99-499, Sec. 111(h), (i), added
subsecs. (m) to (p).
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions in subsec.
(k) of this section relating to the requirement that the Inspector
General submit an annual report to Congress on the audit report
required under subsec. (k), see section 3003 of Pub. L. 104-66, as
amended, set out as a note under section 1113 of Title 31, Money
and Finance, and the 7th item on page 151 of House Document No.
103-7.
COORDINATION OF TITLES I TO IV OF PUB. L. 99-499
Any provision of titles I to IV of Pub. L. 99-499, imposing any
tax, premium, or fee; establishing any trust fund; or authorizing
expenditures from any trust fund, to have no force or effect, see
section 531 of Pub. L. 99-499, set out as a note under section 1 of
Title 26, Internal Revenue Code.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 6924, 6991b, 6991c, 9601,
9604, 9607, 9608, 9609, 9612, 9619, 9661 of this title; title 26
section 9507.
-FOOTNOTE-
)1(! See References in Text note below.
)2(! See References in Text note below.
)3(! See References in Text note below.
-End-
-CITE-
42 USC Sec. 9612 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9612. Claims procedure
-STATUTE-
(a) Claims against Fund for response costs
No claim may be asserted against the Fund pursuant to section
9611(a) of this title unless such claim is presented in the first
instance to the owner, operator, or guarantor of the vessel or
facility from which a hazardous substance has been released, if
known to the claimant, and to any other person known to the
claimant who may be liable under section 9607 of this title. In any
case where the claim has not been satisfied within 60 days of
presentation in accordance with this subsection, the claimant may
present the claim to the Fund for payment. No claim against the
Fund may be approved or certified during the pendency of an action
by the claimant in court to recover costs which are the subject of
the claim.
(b) Forms and procedures applicable
(1) Prescribing forms and procedures
The President shall prescribe appropriate forms and procedures
for claims filed hereunder, which shall include a provision
requiring the claimant to make a sworn verification of the claim
to the best of his knowledge. Any person who knowingly gives or
causes to be given any false information as a part of any such
claim shall, upon conviction, be fined in accordance with the
applicable provisions of title 18 or imprisoned for not more than
3 years (or not more than 5 years in the case of a second or
subsequent conviction), or both.
(2) Payment or request for hearing
The President may, if satisfied that the information developed
during the processing of the claim warrants it, make and pay an
award of the claim, except that no claim may be awarded to the
extent that a judicial judgment has been made on the costs that
are the subject of the claim. If the President declines to pay
all or part of the claim, the claimant may, within 30 days after
receiving notice of the President's decision, request an
administrative hearing.
(3) Burden of proof
In any proceeding under this subsection, the claimant shall
bear the burden of proving his claim.
(4) Decisions
All administrative decisions made hereunder shall be in
writing, with notification to all appropriate parties, and shall
be rendered within 90 days of submission of a claim to an
administrative law judge, unless all the parties to the claim
agree in writing to an extension or unless the President, in his
discretion, extends the time limit for a period not to exceed
sixty days.
(5) Finality and appeal
All administrative decisions hereunder shall be final, and any
party to the proceeding may appeal a decision within 30 days of
notification of the award or decision. Any such appeal shall be
made to the Federal district court for the district where the
release or threat of release took place. In any such appeal, the
decision shall be considered binding and conclusive, and shall
not be overturned except for arbitrary or capricious abuse of
discretion.
(6) Payment
Within 20 days after the expiration of the appeal period for
any administrative decision concerning an award, or within 20
days after the final judicial determination of any appeal taken
pursuant to this subsection, the President shall pay any such
award from the Fund. The President shall determine the method,
terms, and time of payment.
(c) Subrogation rights; actions maintainable
(1) Payment of any claim by the Fund under this section shall be
subject to the United States Government acquiring by subrogation
the rights of the claimant to recover those costs of removal or
damages for which it has compensated the claimant from the person
responsible or liable for such release.
(2) Any person, including the Fund, who pays compensation
pursuant to this chapter to any claimant for damages or costs
resulting from a release of a hazardous substance shall be
subrogated to all rights, claims, and causes of action for such
damages and costs of removal that the claimant has under this
chapter or any other law.
(3) Upon request of the President, the Attorney General shall
commence an action on behalf of the Fund to recover any
compensation paid by the Fund to any claimant pursuant to this
subchapter, and, without regard to any limitation of liability, all
interest, administrative and adjudicative costs, and attorney's
fees incurred by the Fund by reason of the claim. Such an action
may be commenced against any owner, operator, or guarantor, or
against any other person who is liable, pursuant to any law, to the
compensated claimant or to the Fund, for the damages or costs for
which compensation was paid.
(d) Statute of limitations
(1) Claims for recovery of costs
No claim may be presented under this section for recovery of
the costs referred to in section 9607(a) of this title after the
date 6 years after the date of completion of all response action.
(2) Claims for recovery of damages
No claim may be presented under this section for recovery of
the damages referred to in section 9607(a) of this title unless
the claim is presented within 3 years after the later of the
following:
(A) The date of the discovery of the loss and its connection
with the release in question.
(B) The date on which final regulations are promulgated under
section 9651(c) of this title.
(3) Minors and incompetents
The time limitations contained herein shall not begin to run -
(A) against a minor until the earlier of the date when such
minor reaches 18 years of age or the date on which a legal
representative is duly appointed for the minor, or
(B) against an incompetent person until the earlier of the
date on which such person's incompetency ends or the date on
which a legal representative is duly appointed for such
incompetent person.
(e) Other statutory or common law claims not waived, etc.
Regardless of any State statutory or common law to the contrary,
no person who asserts a claim against the Fund pursuant to this
subchapter shall be deemed or held to have waived any other claim
not covered or assertable against the Fund under this subchapter
arising from the same incident, transaction, or set of
circumstances, nor to have split a cause of action. Further, no
person asserting a claim against the Fund pursuant to this
subchapter shall as a result of any determination of a question of
fact or law made in connection with that claim be deemed or held to
be collaterally estopped from raising such question in connection
with any other claim not covered or assertable against the Fund
under this subchapter arising from the same incident, transaction,
or set of circumstances.
(f) Double recovery prohibited
Where the President has paid out of the Fund for any response
costs or any costs specified under section 9611(c)(1) or (2) of
this title, no other claim may be paid out of the Fund for the same
costs.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 112, Dec. 11, 1980, 94 Stat. 2792;
Pub. L. 99-499, title I, Secs. 109(a)(3), 112, Oct. 17, 1986, 100
Stat. 1633, 1646.)
-MISC1-
AMENDMENTS
1986 - Subsec. (a). Pub. L. 99-499, Sec. 112(a), amended subsec.
(a) generally. Prior to amendment, subsec. (a) read as follows:
"All claims which may be asserted against the Fund pursuant to
section 9611 of this title shall be presented in the first instance
to the owner, operator, or guarantor of the vessel or facility from
which a hazardous substance has been released, if known to the
claimant, and to any other person known to the claimant who may be
liable under section 9607 of this title. In any case where the
claim has not been satisfied within sixty days of presentation in
accordance with this subsection, the claimant may elect to commence
an action in court against such owner, operator, guarantor, or
other person or to present the claim to the Fund for payment."
Subsec. (b)(1). Pub. L. 99-499, Sec. 112(b), added heading.
Pub. L. 99-499, Sec. 109(a)(3), substituted "in accordance with
the applicable provisions of title 18 or imprisoned for not more
than 3 years (or not more than 5 years in the case of a second or
subsequent conviction), or both" for "up to $5,000 or imprisoned
for not more than one year, or both".
Subsec. (b)(2) to (6). Pub. L. 99-499, Sec. 112(b), added pars.
(2) to (6) and struck out former pars. (2) to (4) which related to
the settlement and arbitration of claims against liable persons and
against the Fund.
Subsec. (d). Pub. L. 99-499, Sec. 112(c), amended subsec. (d)
generally. Prior to amendment, subsec. (d) read as follows: "No
claim may be presented, nor may an action be commenced for damages
under this subchapter, unless that claim is presented or action
commenced within three years from the date of the discovery of the
loss or December 11, 1980, whichever is later: Provided, however,
That the time limitations contained herein shall not begin to run
against a minor until he reaches eighteen years of age or a legal
representative is duly appointed for him, nor against an
incompetent person until his incompetency ends or a legal
representative is duly appointed for him."
Subsec. (f). Pub. L. 99-499, Sec. 112(d), added subsec. (f).
COORDINATION OF TITLES I TO IV OF PUB. L. 99-499
Any provision of titles I to IV of Pub. L. 99-499, imposing any
tax, premium, or fee; establishing any trust fund; or authorizing
expenditures from any trust fund, to have no force or effect, see
section 531 of Pub. L. 99-499, set out as a note under section 1 of
Title 26, Internal Revenue Code.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9607, 9611 of this title.
-End-
-CITE-
42 USC Sec. 9613 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9613. Civil proceedings
-STATUTE-
(a) Review of regulations in Circuit Court of Appeals of the United
States for the District of Columbia
Review of any regulation promulgated under this chapter may be
had upon application by any interested person only in the Circuit
Court of Appeals of the United States for the District of Columbia.
Any such application shall be made within ninety days from the date
of promulgation of such regulations. Any matter with respect to
which review could have been obtained under this subsection shall
not be subject to judicial review in any civil or criminal
proceeding for enforcement or to obtain damages or recovery of
response costs.
(b) Jurisdiction; venue
Except as provided in subsections (a) and (h) of this section,
the United States district courts shall have exclusive original
jurisdiction over all controversies arising under this chapter,
without regard to the citizenship of the parties or the amount in
controversy. Venue shall lie in any district in which the release
or damages occurred, or in which the defendant resides, may be
found, or has his principal office. For the purposes of this
section, the Fund shall reside in the District of Columbia.
(c) Controversies or other matters resulting from tax collection or
tax regulation review
The provisions of subsections (a) and (b) of this section shall
not apply to any controversy or other matter resulting from the
assessment of collection of any tax, as provided by subchapter II
)1(! of this chapter, or to the review of any regulation
promulgated under title 26.
(d) Litigation commenced prior to December 11, 1980
No provision of this chapter shall be deemed or held to moot any
litigation concerning any release of any hazardous substance, or
any damages associated therewith, commenced prior to December 11,
1980.
(e) Nationwide service of process
In any action by the United States under this chapter, process
may be served in any district where the defendant is found,
resides, transacts business, or has appointed an agent for the
service of process.
(f) Contribution
(1) Contribution
Any person may seek contribution from any other person who is
liable or potentially liable under section 9607(a) of this title,
during or following any civil action under section 9606 of this
title or under section 9607(a) of this title. Such claims shall
be brought in accordance with this section and the Federal Rules
of Civil Procedure, and shall be governed by Federal law. In
resolving contribution claims, the court may allocate response
costs among liable parties using such equitable factors as the
court determines are appropriate. Nothing in this subsection
shall diminish the right of any person to bring an action for
contribution in the absence of a civil action under section 9606
of this title or section 9607 of this title.
(2) Settlement
A person who has resolved its liability to the United States or
a State in an administrative or judicially approved settlement
shall not be liable for claims for contribution regarding matters
addressed in the settlement. Such settlement does not discharge
any of the other potentially liable persons unless its terms so
provide, but it reduces the potential liability of the others by
the amount of the settlement.
(3) Persons not party to settlement
(A) If the United States or a State has obtained less than
complete relief from a person who has resolved its liability to
the United States or the State in an administrative or judicially
approved settlement, the United States or the State may bring an
action against any person who has not so resolved its liability.
(B) A person who has resolved its liability to the United
States or a State for some or all of a response action or for
some or all of the costs of such action in an administrative or
judicially approved settlement may seek contribution from any
person who is not party to a settlement referred to in paragraph
(2).
(C) In any action under this paragraph, the rights of any
person who has resolved its liability to the United States or a
State shall be subordinate to the rights of the United States or
the State. Any contribution action brought under this paragraph
shall be governed by Federal law.
(g) Period in which action may be brought
(1) Actions for natural resource damages
Except as provided in paragraphs (3) and (4), no action may be
commenced for damages (as defined in section 9601(6) of this
title) under this chapter, unless that action is commenced within
3 years after the later of the following:
(A) The date of the discovery of the loss and its connection
with the release in question.
(B) The date on which regulations are promulgated under
section 9651(c) of this title.
With respect to any facility listed on the National Priorities
List (NPL), any Federal facility identified under section 9620 of
this title (relating to Federal facilities), or any vessel or
facility at which a remedial action under this chapter is
otherwise scheduled, an action for damages under this chapter
must be commenced within 3 years after the completion of the
remedial action (excluding operation and maintenance activities)
in lieu of the dates referred to in subparagraph (A) or (B). In
no event may an action for damages under this chapter with
respect to such a vessel or facility be commenced (i) prior to 60
days after the Federal or State natural resource trustee provides
to the President and the potentially responsible party a notice
of intent to file suit, or (ii) before selection of the remedial
action if the President is diligently proceeding with a remedial
investigation and feasibility study under section 9604(b) of this
title or section 9620 of this title (relating to Federal
facilities). The limitation in the preceding sentence on
commencing an action before giving notice or before selection of
the remedial action does not apply to actions filed on or before
October 17, 1986.
(2) Actions for recovery of costs
An initial action for recovery of the costs referred to in
section 9607 of this title must be commenced -
(A) for a removal action, within 3 years after completion of
the removal action, except that such cost recovery action must
be brought within 6 years after a determination to grant a
waiver under section 9604(c)(1)(C) of this title for continued
response action; and
(B) for a remedial action, within 6 years after initiation of
physical on-site construction of the remedial action, except
that, if the remedial action is initiated within 3 years after
the completion of the removal action, costs incurred in the
removal action may be recovered in the cost recovery action
brought under this subparagraph.
In any such action described in this subsection, the court shall
enter a declaratory judgment on liability for response costs or
damages that will be binding on any subsequent action or actions
to recover further response costs or damages. A subsequent action
or actions under section 9607 of this title for further response
costs at the vessel or facility may be maintained at any time
during the response action, but must be commenced no later than 3
years after the date of completion of all response action. Except
as otherwise provided in this paragraph, an action may be
commenced under section 9607 of this title for recovery of costs
at any time after such costs have been incurred.
(3) Contribution
No action for contribution for any response costs or damages
may be commenced more than 3 years after -
(A) the date of judgment in any action under this chapter for
recovery of such costs or damages, or
(B) the date of an administrative order under section 9622(g)
of this title (relating to de minimis settlements) or 9622(h)
of this title (relating to cost recovery settlements) or entry
of a judicially approved settlement with respect to such costs
or damages.
(4) Subrogation
No action based on rights subrogated pursuant to this section
by reason of payment of a claim may be commenced under this
subchapter more than 3 years after the date of payment of such
claim.
(5) Actions to recover indemnification payments
Notwithstanding any other provision of this subsection, where a
payment pursuant to an indemnification agreement with a response
action contractor is made under section 9619 of this title, an
action under section 9607 of this title for recovery of such
indemnification payment from a potentially responsible party may
be brought at any time before the expiration of 3 years from the
date on which such payment is made.
(6) Minors and incompetents
The time limitations contained herein shall not begin to run -
(A) against a minor until the earlier of the date when such
minor reaches 18 years of age or the date on which a legal
representative is duly appointed for such minor, or
(B) against an incompetent person until the earlier of the
date on which such incompetent's incompetency ends or the date
on which a legal representative is duly appointed for such
incompetent.
(h) Timing of review
No Federal court shall have jurisdiction under Federal law other
than under section 1332 of title 28 (relating to diversity of
citizenship jurisdiction) or under State law which is applicable or
relevant and appropriate under section 9621 of this title (relating
to cleanup standards) to review any challenges to removal or
remedial action selected under section 9604 of this title, or to
review any order issued under section 9606(a) of this title, in any
action except one of the following:
(1) An action under section 9607 of this title to recover
response costs or damages or for contribution.
(2) An action to enforce an order issued under section 9606(a)
of this title or to recover a penalty for violation of such
order.
(3) An action for reimbursement under section 9606(b)(2) of
this title.
(4) An action under section 9659 of this title (relating to
citizens suits) alleging that the removal or remedial action
taken under section 9604 of this title or secured under section
9606 of this title was in violation of any requirement of this
chapter. Such an action may not be brought with regard to a
removal where a remedial action is to be undertaken at the site.
(5) An action under section 9606 of this title in which the
United States has moved to compel a remedial action.
(i) Intervention
In any action commenced under this chapter or under the Solid
Waste Disposal Act [42 U.S.C. 6901 et seq.] in a court of the
United States, any person may intervene as a matter of right when
such person claims an interest relating to the subject of the
action and is so situated that the disposition of the action may,
as a practical matter, impair or impede the person's ability to
protect that interest, unless the President or the State shows that
the person's interest is adequately represented by existing
parties.
(j) Judicial review
(1) Limitation
In any judicial action under this chapter, judicial review of
any issues concerning the adequacy of any response action taken
or ordered by the President shall be limited to the
administrative record. Otherwise applicable principles of
administrative law shall govern whether any supplemental
materials may be considered by the court.
(2) Standard
In considering objections raised in any judicial action under
this chapter, the court shall uphold the President's decision in
selecting the response action unless the objecting party can
demonstrate, on the administrative record, that the decision was
arbitrary and capricious or otherwise not in accordance with law.
(3) Remedy
If the court finds that the selection of the response action
was arbitrary and capricious or otherwise not in accordance with
law, the court shall award (A) only the response costs or damages
that are not inconsistent with the national contingency plan, and
(B) such other relief as is consistent with the National
Contingency Plan.
(4) Procedural errors
In reviewing alleged procedural errors, the court may disallow
costs or damages only if the errors were so serious and related
to matters of such central relevance to the action that the
action would have been significantly changed had such errors not
been made.
(k) Administrative record and participation procedures
(1) Administrative record
The President shall establish an administrative record upon
which the President shall base the selection of a response
action. The administrative record shall be available to the
public at or near the facility at issue. The President also may
place duplicates of the administrative record at any other
location.
(2) Participation procedures
(A) Removal action
The President shall promulgate regulations in accordance with
chapter 5 of title 5 establishing procedures for the
appropriate participation of interested persons in the
development of the administrative record on which the President
will base the selection of removal actions and on which
judicial review of removal actions will be based.
(B) Remedial action
The President shall provide for the participation of
interested persons, including potentially responsible parties,
in the development of the administrative record on which the
President will base the selection of remedial actions and on
which judicial review of remedial actions will be based. The
procedures developed under this subparagraph shall include, at
a minimum, each of the following:
(i) Notice to potentially affected persons and the public,
which shall be accompanied by a brief analysis of the plan
and alternative plans that were considered.
(ii) A reasonable opportunity to comment and provide
information regarding the plan.
(iii) An opportunity for a public meeting in the affected
area, in accordance with section 9617(a)(2) of this title
(relating to public participation).
(iv) A response to each of the significant comments,
criticisms, and new data submitted in written or oral
presentations.
(v) A statement of the basis and purpose of the selected
action.
For purposes of this subparagraph, the administrative record
shall include all items developed and received under this
subparagraph and all items described in the second sentence of
section 9617(d) of this title. The President shall promulgate
regulations in accordance with chapter 5 of title 5 to carry
out the requirements of this subparagraph.
(C) Interim record
Until such regulations under subparagraphs (A) and (B) are
promulgated, the administrative record shall consist of all
items developed and received pursuant to current procedures for
selection of the response action, including procedures for the
participation of interested parties and the public. The
development of an administrative record and the selection of
response action under this chapter shall not include an
adjudicatory hearing.
(D) Potentially responsible parties
The President shall make reasonable efforts to identify and
notify potentially responsible parties as early as possible
before selection of a response action. Nothing in this
paragraph shall be construed to be a defense to liability.
(l) Notice of actions
Whenever any action is brought under this chapter in a court of
the United States by a plaintiff other than the United States, the
plaintiff shall provide a copy of the complaint to the Attorney
General of the United States and to the Administrator of the
Environmental Protection Agency.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 113, Dec. 11, 1980, 94 Stat. 2795;
Pub. L. 99-499, title I, Sec. 113, Oct. 17, 1986, 100 Stat. 1647;
Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095.)
-REFTEXT-
REFERENCES IN TEXT
Subchapter II of this chapter, referred to in subsec. (c), was in
the original "title II of this Act", meaning title II of Pub. L.
96-510, Dec. 11, 1980, 94 Stat. 2796, known as the Hazardous
Substance Response Revenue Act of 1980, which enacted subchapter II
of this chapter and sections 4611, 4612, 4661, 4662, 4681, and 4682
of Title 26, Internal Revenue Code. Sections 221 to 223 and 232 of
Pub. L. 96-510, which were classified to sections 9631 to 9633 and
9641 of this title, comprising subchapter II of this chapter, were
repealed by Pub. L. 99-499, title V, Secs. 514(b), 517(c)(1), Oct.
17, 1986, 100 Stat. 1767, 1774. For complete classification of
title II to the Code, see Short Title of 1980 Amendment note set
out under section 1 of Title 26 and Tables.
The Federal Rules of Civil Procedure, referred to in subsec.
(f)(1), are set out in the Appendix to Title 28, Judiciary and
Judicial Procedure.
The Solid Waste Disposal Act, referred to in subsec. (i), is
title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795,
which is classified generally to chapter 82 (Sec. 6901 et seq.) of
this title. For complete classification of this Act to the Code,
see Short Title note set out under section 6901 of this title and
Tables.
-MISC1-
AMENDMENTS
1986 - Subsec. (b). Pub. L. 99-499, Sec. 113(c)(1), substituted
"subsections (a) and (h)" for "subsection (a)".
Subsec. (c). Pub. L. 99-514 substituted "Internal Revenue Code of
1986" for "Internal Revenue Code of 1954", which for purposes of
codification was translated as "title 26" thus requiring no change
in text.
Subsecs. (e) to (l). Pub. L. 99-499, Sec. 113(a), (b), (c)(2),
added subsecs. (e) to (l).
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9607, 9659 of this title.
-FOOTNOTE-
)1(! See References in Text note below.
-End-
-CITE-
42 USC Sec. 9614 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9614. Relationship to other law
-STATUTE-
(a) Additional State liability or requirements with respect to
release of substances within State
Nothing in this chapter shall be construed or interpreted as
preempting any State from imposing any additional liability or
requirements with respect to the release of hazardous substances
within such State.
(b) Recovery under other State or Federal law of compensation for
removal costs or damages, or payment of claims
Any person who receives compensation for removal costs or damages
or claims pursuant to this chapter shall be precluded from
recovering compensation for the same removal costs or damages or
claims pursuant to any other State or Federal law. Any person who
receives compensation for removal costs or damages or claims
pursuant to any other Federal or State law shall be precluded from
receiving compensation for the same removal costs or damages or
claims as provided in this chapter.
(c) Recycled oil
(1) Service station dealers, etc.
No person (including the United States or any State) may
recover, under the authority of subsection (a)(3) or (a)(4) of
section 9607 of this title, from a service station dealer for any
response costs or damages resulting from a release or threatened
release of recycled oil, or use the authority of section 9606 of
this title against a service station dealer other than a person
described in subsection (a)(1) or (a)(2) of section 9607 of this
title, if such recycled oil -
(A) is not mixed with any other hazardous substance, and
(B) is stored, treated, transported, or otherwise managed in
compliance with regulations or standards promulgated pursuant
to section 3014 of the Solid Waste Disposal Act [42 U.S.C.
6935] and other applicable authorities.
Nothing in this paragraph shall affect or modify in any way the
obligations or liability of any person under any other provision
of State or Federal law, including common law, for damages,
injury, or loss resulting from a release or threatened release of
any hazardous substance or for removal or remedial action or the
costs of removal or remedial action.
(2) Presumption
Solely for the purposes of this subsection, a service station
dealer may presume that a small quantity of used oil is not mixed
with other hazardous substances if it -
(A) has been removed from the engine of a light duty motor
vehicle or household appliances by the owner of such vehicle or
appliances, and
(B) is presented, by such owner, to the dealer for
collection, accumulation, and delivery to an oil recycling
facility.
(3) Definition
For purposes of this subsection, the terms "used oil" and
"recycled oil" have the same meanings as set forth in sections
1004(36) and 1004(37) of the Solid Waste Disposal Act [42 U.S.C.
6903(36), (37)] and regulations promulgated pursuant to that Act
[42 U.S.C. 6901 et seq.].
(4) Effective date
The effective date of paragraphs (1) and (2) of this subsection
shall be the effective date of regulations or standards
promulgated under section 3014 of the Solid Waste Disposal Act
[42 U.S.C. 6935] that include, among other provisions, a
requirement to conduct corrective action to respond to any
releases of recycled oil under subtitle C or subtitle I of such
Act [42 U.S.C. 6921 et seq., 6991 et seq.].
(d) Financial responsibility of owner or operator of vessel or
facility under State or local law, rule, or regulation
Except as provided in this subchapter, no owner or operator of a
vessel or facility who establishes and maintains evidence of
financial responsibility in accordance with this subchapter shall
be required under any State or local law, rule, or regulation to
establish or maintain any other evidence of financial
responsibility in connection with liability for the release of a
hazardous substance from such vessel or facility. Evidence of
compliance with the financial responsibility requirements of this
subchapter shall be accepted by a State in lieu of any other
requirement of financial responsibility imposed by such State in
connection with liability for the release of a hazardous substance
from such vessel or facility.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 114, Dec. 11, 1980, 94 Stat. 2795;
Pub. L. 99-499, title I, Sec. 114(a), Oct. 17, 1986, 100 Stat.
1652.)
-REFTEXT-
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsec. (c)(3), (4),
is title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as
amended generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90
Stat. 2795, which is classified generally to chapter 82 (Sec. 6901
et seq.) of this title. Subtitles C and I of the Solid Waste
Disposal Act are classified generally to subchapters III (Sec. 6921
et seq.) and IX (Sec. 6991 et seq.), respectively, of chapter 82 of
this title. For complete classification of this Act to the Code,
see Short Title note set out under section 6901 of this title and
Tables.
-MISC1-
AMENDMENTS
1986 - Subsec. (c). Pub. L. 99-499 amended subsec. (c) generally.
Prior to amendment, subsec. (c) read as follows: "Except as
provided in this chapter, no person may be required to contribute
to any fund, the purpose of which is to pay compensation for claims
for any costs of response or damages or claims which may be
compensated under this subchapter. Nothing in this section shall
preclude any State from using general revenues for such a fund, or
from imposing a tax or fee upon any person or upon any substance in
order to finance the purchase or prepositioning of hazardous
substance response equipment or other preparations for the response
to a release of hazardous substances which affects such State."
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9601, 9607 of this title.
-End-
-CITE-
42 USC Sec. 9615 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9615. Presidential delegation and assignment of duties or
powers and promulgation of regulations
-STATUTE-
The President is authorized to delegate and assign any duties or
powers imposed upon or assigned to him and to promulgate any
regulations necessary to carry out the provisions of this
subchapter.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 115, Dec. 11, 1980, 94 Stat. 2796.)
-EXEC-
EX. ORD. NO. 12580. SUPERFUND IMPLEMENTATION
Ex. Ord. No. 12580, Jan. 23, 1987, 52 F.R. 2923, as amended by
Ex. Ord. No. 12777, Sec. 1(a), Oct. 18, 1991, 56 F.R. 54757; Ex.
Ord. No. 13016, Aug. 28, 1996, 61 F.R. 45871; Ex. Ord. No. 13286,
Sec. 43, Feb. 28, 2003, 68 F.R. 10627; Ex. Ord. No. 13308, June 20,
2003, 68 F.R. 37691, provided:
By the authority vested in me as President of the United States
of America by Section 115 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. 9615 et seq.) ("the Act"), and by Section 301 of Title 3 of
the United States Code, it is hereby ordered as follows:
Section 1. National Contingency Plan. (a)(1) The National
Contingency Plan ("the NCP"), shall provide for a National Response
Team ("the NRT") composed of representatives of appropriate Federal
departments and agencies for national planning and coordination of
preparedness and response actions, and Regional Response Teams as
the regional counterparts to the NRT for planning and coordination
of regional preparedness and response actions.
(2) The following agencies (in addition to other appropriate
agencies) shall provide representatives to the National and
Regional Response Teams to carry out their responsibilities under
the NCP: Department of State, Department of Defense, Department of
Justice, Department of the Interior, Department of Agriculture,
Department of Commerce, Department of Labor, Department of Health
and Human Services, Department of Transportation, Department of
Energy, Department of Homeland Security, Environmental Protection
Agency,, [sic] United States Coast Guard, and the Nuclear
Regulatory Commission.
(3) Except for periods of activation because of response action,
the representative of the Environmental Protection Agency ("EPA")
shall be the chairman, and the representative of the United States
Coast Guard shall be the vice chairman, of the NRT and these
agencies' representatives shall be co-chairs of the Regional
Response Teams ("the RRTs"). When the NRT or an RRT is activated
for a response action, the EPA representative shall be the chairman
when the release or threatened release or discharge or threatened
discharge occurs in the inland zone, and the United States Coast
Guard representative shall be the chairman when the release or
threatened release or discharge or threatened discharge occurs in
the coastal zone, unless otherwise agreed upon by the EPA and the
United States Coast Guard representatives (inland and coastal zones
are defined in the NCP).
(4) The RRTs may include representatives from State governments,
local governments (as agreed upon by the States), and Indian tribal
governments. Subject to the functions and authorities delegated to
Executive departments and agencies in other sections of this order,
the NRT shall provide policy and program direction to the RRTs.
(b)(1) The responsibility for the revision of the NCP and all the
other functions vested in the President by Sections 105(a), (b),
(c), (g) and (h), 125, and 301(f) of the Act [42 U.S.C. 9605(a),
(b), (c), (g), (h), 9625, 9651(f)], by Section 311(d)(1) of the
Federal Water Pollution Control Act [33 U.S.C. 1321(d)(1)], and by
Section 4201(c) of the Oil Pollution Act of 1990 [Pub. L. 101-380,
33 U.S.C. 1321 note] is delegated to the Administrator of the
Environmental Protection Agency ("the Administrator").
(2) The function vested in the President by Section 118(p) of the
Superfund Amendments and Reauthorization Act of 1986 (Pub. L.
99-499) ("SARA") [100 Stat. 1662] is delegated to the
Administrator.
(c) In accord with Section 107(f)(2)(A) of the Act [42 U.S.C.
9607(f)(2)(A)], Section 311(f)(5) of the Federal Water Pollution
Control Act, as amended (33 U.S.C. 1321(f)(5)), and Section
1006(b)(1) and (2) of the Oil Pollution Act of 1990 [33 U.S.C.
2706(b)(1), (2)], the following shall be among those designated in
the NCP as Federal trustees for natural resources:
(1) Secretary of Defense;
(2) Secretary of the Interior;
(3) Secretary of Agriculture;
(4) Secretary of Commerce;
(5) Secretary of Energy.
In the event of a spill, the above named Federal trustees for
natural resources shall designate one trustee to act as Lead
Administrative Trustee, the duties of which shall be defined in the
regulations promulgated pursuant to Section 1006(e)(1) of OPA. If
there are natural resource trustees other than those designated
above which are acting in the event of a spill, those other
trustees may join with the Federal trustees to name a Lead
Administrative Trustee which shall exercise the duties defined in
the regulations promulgated pursuant to Section 1006(e)(1) of OPA.
(d) Revisions to the NCP shall be made in consultation with
members of the NRT prior to publication for notice and comment.
(e) All revisions to the NCP, whether in proposed or final form,
shall be subject to review and approval by the Director of the
Office of Management and Budget ("OMB").
Sec. 2. Response and Related Authorities. (a) The functions
vested in the President by the first sentence of Section 104(b)(1)
of the Act [42 U.S.C. 9604(b)(1)] relating to "illness, disease, or
complaints thereof" are delegated to the Secretary of Health and
Human Services who shall, in accord with Section 104(i) of the Act,
perform those functions through the Public Health Service.
(b) The functions vested in the President by Sections
104(e)(7)(C), 113(k)(2), 119(c)(7), and 121(f)(1) of the Act [42
U.S.C. 9604(e)(7)(C), 9613(k)(2), 9619(c)(7), 9621(f)(1)], relating
to promulgation of regulations and guidelines, are delegated to the
Administrator, to be exercised in consultation with the NRT.
(c)(1) The functions vested in the President by Sections 104(a)
and the second sentence of 126(b) of the Act [42 U.S.C. 9604(a),
9626(b)], to the extent they require permanent relocation of
residents, businesses, and community facilities or temporary
evacuation and housing of threatened individuals not otherwise
provided for, are delegated to the Director of the Federal
Emergency Management Agency.
(2) Subject to subsection (b) of this Section, the functions
vested in the President by Sections 117(a) and (c), and 119 of the
Act [42 U.S.C. 9617(a), (c), 9619], to the extent such authority is
needed to carry out the functions delegated under paragraph (1) of
this subsection, are delegated to the Director of the Federal
Emergency Management Agency.
(d) Subject to subsections (a), (b) and (c) of this Section, the
functions vested in the President by Sections 104(a), (b) and
(c)(4), 113(k), 117(a) and (c), 119, and 121 of the Act [42 U.S.C.
9604(a), (b), (c)(4), 9613(k), 9617(a), (c), 9619, 9621] are
delegated to the Secretaries of Defense and Energy, with respect to
releases or threatened releases where either the release is on or
the sole source of the release is from any facility or vessel under
the jurisdiction, custody or control of their departments,
respectively, including vessels bare-boat chartered and operated.
These functions must be exercised consistent with the requirements
of Section 120 of the Act [42 U.S.C. 9620].
(e)(1) Subject to subsections (a), (b), (c), and (d) of this
Section, the functions vested in the President by Sections 104(a),
(b), and (c)(4), and 121 of the Act [42 U.S.C. 9604(a), (b),
(c)(4), 9621] are delegated to the heads of Executive departments
and agencies, with respect to remedial actions for releases or
threatened releases which are not on the National Priorities List
("the NPL") and removal actions other than emergencies, where
either the release is on or the sole source of the release is from
any facility or vessel under the jurisdiction, custody or control
of those departments and agencies, including vessels bare-boat
chartered and operated. The Administrator shall define the term
"emergency", solely for the purposes of this subsection, either by
regulation or by a memorandum of understanding with the head of an
Executive department or agency.
(2) Subject to subsections (b), (c), and (d) of this Section, the
functions vested in the President by Sections 104(b)(2), 113(k),
117(a) and (c), and 119 of the Act [42 U.S.C. 9604(b)(2), 9613(k),
9617(a), (c), 9619] are delegated to the heads of Executive
departments and agencies, with respect to releases or threatened
releases where either the release is on or the sole source of the
release is from any facility or vessel under the jurisdiction,
custody or control of those departments and agencies, including
vessels bare-boat chartered and operated.
(f) Subject to subsections (a), (b), (c), (d), and (e) of this
Section, the functions vested in the President by Sections 104(a),
(b) and (c)(4), 113(k), 117(a) and (c), 119, and 121 of the Act [42
U.S.C. 9604(a), (b), (c)(4), 9613(k), 9617(a), (c), 9619, 9621] are
delegated to the Secretary of the Department in which the Coast
Guard is operating ("the Coast Guard"), with respect to any release
or threatened release involving the coastal zone, Great Lakes
waters, ports, and harbors.
(g) Subject to subsections (a), (b), (c), (d), (e), and (f) of
this Section, the functions vested in the President by Sections
101(24), 104(a), (b), (c)(4) and (c)(9), 113(k), 117(a) and (c),
119, 121, and 126(b) of the Act [42 U.S.C. 9601(24), 9604(a), (b),
(c)(4), (9), 9613(k), 9617(a), (c), 9619, 9621, 9626(b)] are
delegated to the Administrator. The Administrator's authority under
Section 119 of the Act is retroactive to the date of enactment of
SARA [Oct. 17, 1986].
(h) The functions vested in the President by Section 104(c)(3) of
the Act [42 U.S.C. 9604(c)(3)] are delegated to the Administrator,
with respect to providing assurances for Indian tribes, to be
exercised in consultation with the Secretary of the Interior.
(i) Subject to subsections (d), (e), (f), (g) and (h) of this
Section, the functions vested in the President by Section 104(c)
and (d) of the Act are delegated to the Coast Guard, the Secretary
of Health and Human Services, the Director of the Federal Emergency
Management Agency, and the Administrator in order to carry out the
functions delegated to them by this Section.
(j)(1) The functions vested in the President by Section
104(e)(5)(A) are delegated to the heads of Executive departments
and agencies, with respect to releases or threatened releases where
either the release is on or the sole source of the release is from
any facility or vessel under the jurisdiction, custody or control
of those departments and agencies, to be exercised with the
concurrence of the Attorney General.
(2) Subject to subsection (b) of this Section and paragraph (1)
of this subsection, the functions vested in the President by
Section 104(e) are delegated to the heads of Executive departments
and agencies in order to carry out their functions under this Order
or the Act.
(k) The functions vested in the President by Section 104(f), (g),
(h), (i)(11), and (j) of the Act are delegated to the heads of
Executive departments and agencies in order to carry out the
functions delegated to them by this Section. The exercise of
authority under Section 104(h) of the Act shall be subject to the
approval of the Administrator of the Office of Federal Procurement
Policy.
Sec. 3. Cleanup Schedules. (a) The functions vested in the
President by Sections 116(a) and the first two sentences of 105(d)
of the Act [42 U.S.C. 9616(a), 9605(d)] are delegated to the heads
of Executive departments and agencies with respect to facilities
under the jurisdiction, custody or control of those departments and
agencies.
(b) Subject to subsection (a) of this Section, the functions
vested in the President by Sections 116 and 105(d) are delegated to
the Administrator.
Sec. 4. Enforcement. (a) The functions vested in the President by
Sections 109(d) and 122(e)(3)(A) of the Act [42 U.S.C. 9609(d),
9622(e)(3)(A)], relating to development of regulations and
guidelines, are delegated to the Administrator, to be exercised in
consultation with the Attorney General.
(b)(1) Subject to subsection (a) of this Section, the functions
vested in the President by Section 122 [42 U.S.C. 9622] (except
subsection (b)(1)) are delegated to the heads of Executive
departments and agencies, with respect to releases or threatened
releases not on the NPL where either the release is on or the sole
source of the release is from any facility under the jurisdiction,
custody or control of those Executive departments and agencies.
These functions may be exercised only with the concurrence of the
Attorney General.
(2) Subject to subsection (a) of this Section, the functions
vested in the President by Section 109 of the Act [42 U.S.C. 9609],
relating to violations of Section 122 of the Act, are delegated to
the heads of Executive departments and agencies, with respect to
releases or threatened releases not on the NPL where either the
release is on or the sole source of the release is from any
facility under the jurisdiction, custody or control of those
Executive departments and agencies. These functions may be
exercised only with the concurrence of the Attorney General.
(c)(1) Subject to subsection[s] (a) and (b)(1) of this Section,
the functions vested in the President by Sections 106(a) and 122 of
the Act [42 U.S.C. 9606(a), 9622] are delegated to the Coast Guard
with respect to any release or threatened release involving the
coastal zone, Great Lakes waters, ports, and harbors.
(2) Subject to subsection[s] (a) and (b)(2) of this Section, the
functions vested in the President by Section 109 of the Act [42
U.S.C. 9609], relating to violations of Sections 103(a) and (b),
and 122 of the Act [42 U.S.C. 9603(a), (b), 9622], are delegated to
the Coast Guard with respect to any release or threatened release
involving the coastal zone, Great Lakes waters, ports, and harbors.
(3) Subject to subsections (a) and (b)(1) of this section, the
functions vested in the President by sections 106(a) [42 U.S.C.
9606(a)] and 122 [42 U.S.C. 9622] (except subsection (b)(1)) of the
Act are delegated to the Secretary of the Interior, the Secretary
of Commerce, the Secretary of Agriculture, the Secretary of
Defense, and the Secretary of Energy, to be exercised only with the
concurrence of the Coast Guard, with respect to any release or
threatened release in the coastal zone, Great Lakes waters, ports,
and harbors, affecting (1) natural resources under their
trusteeship, or (2) a vessel or facility subject to their custody,
jurisdiction, or control. Such authority shall not be exercised at
any vessel or facility at which the Coast Guard is the lead Federal
agency for the conduct or oversight of a response action. Such
authority shall not be construed to authorize or permit use of the
Hazardous Substance Superfund to implement section 106 or to fund
performance of any response action in lieu of the payment by a
person who receives but does not comply with an order pursuant to
section 106(a), where such order has been issued by the Secretary
of the Interior, the Secretary of Commerce, the Secretary of
Agriculture, the Secretary of Defense, or the Secretary of Energy.
This subsection shall not be construed to limit any authority
delegated by any other section of this order. Authority granted
under this subsection shall be exercised in a manner to ensure
interagency coordination that enhances efficiency and
effectiveness.
(d)(1) Subject to subsections (a), (b)(1), and (c)(1) of this
Section, the functions vested in the President by Sections 106 and
122 of the Act [42 U.S.C. 9606, 9622] are delegated to the
Administrator.
(2) Subject to subsections (a), (b)(2), and (c)(2) of this
Section, the functions vested in the President by Section 109 of
the Act [42 U.S.C. 9609], relating to violations of Sections 103
and 122 of the Act [42 U.S.C. 9603, 9622], are delegated to the
Administrator.
(3) Subject to subsections (a), (b)(1), and (c)(1) of this
section, the functions vested in the President by sections 106(a)
[42 U.S.C. 9606(a)] and 122 [42 U.S.C. 9622] (except subsection
(b)(1)) of the Act are delegated to the Secretary of the Interior,
the Secretary of Commerce, the Secretary of Agriculture, the
Secretary of Defense, and the Department of Energy, to be exercised
only with the concurrence of the Administrator, with respect to any
release or threatened release affecting (1) natural resources under
their trusteeship, or (2) a vessel or facility subject to their
custody, jurisdiction, or control. Such authority shall not be
exercised at any vessel or facility at which the Administrator is
the lead Federal official for the conduct or oversight of a
response action. Such authority shall not be construed to authorize
or permit use of the Hazardous Substance Superfund to implement
section 106 or to fund performance of any response action in lieu
of the payment by a person who receives but does not comply with an
order pursuant to section 106(a), where such order has been issued
by the Secretary of the Interior, the Secretary of Commerce, the
Secretary of Agriculture, the Secretary of Defense, or the
Secretary of Energy. This subsection shall not be construed to
limit any authority delegated by any other section of this order.
Authority granted under this subsection shall be exercised in a
manner to ensure interagency coordination that enhances efficiency
and effectiveness.
(e) Notwithstanding any other provision of this Order, the
authority under Sections 104(e)(5)(A) and 106(a) of the Act [42
U.S.C. 9604(e)(5)(A), 9606(a)] to seek information, entry,
inspection, samples, or response actions from Executive departments
and agencies may be exercised only with the concurrence of the
Attorney General.
Sec. 5. Liability. (a) The function vested in the President by
Section 107(c)(1)(C) of the Act [42 U.S.C. 9607(c)(1)(C)] is
delegated to the Secretary of Transportation.
(b) The functions vested in the President by Section 107(c)(3) of
the Act are delegated to the Coast Guard with respect to any
release or threatened release involving the coastal zone, Great
Lakes waters, ports and harbors.
(c) Subject to subsection (b) of this Section, the functions
vested in the President by Section 107(c)(3) of the Act are
delegated to the Administrator.
(d) The functions vested in the President by Section 107(f)(1) of
the Act are delegated to each of the Federal trustees for natural
resources designated in the NCP for resources under their
trusteeship.
(e) The functions vested in the President by Section 107(f)(2)(B)
of the Act, to receive notification of the state natural resource
trustee designations, are delegated to the Administrator.
(f) The functions vested in the President by Section 107(o) and
(p) of the Act are delegated to the heads of the Executive
departments and agencies, to be exercised in consultation with the
Administrator, with respect to releases or threatened releases
where either the release is on or the sole source of the release is
from any facility under the jurisdiction, custody, or control of
those departments and agencies.
(g) Subject to subsection (f) of this Section, the functions
vested in the President by Section 107(o) and (p) of the Act are
delegated to the Administrator except that, with respect to
determinations regarding natural resource restoration, the
Administrator shall make such determinations in consultation with
the appropriate Federal natural resource trustee.
Sec. 6. Litigation. (a) Notwithstanding any other provision of
this Order, any representation pursuant to or under this Order in
any judicial proceedings shall be by or through the Attorney
General. The conduct and control of all litigation arising under
the Act shall be the responsibility of the Attorney General.
(b) Notwithstanding any other provision of this Order, the
authority under the Act to require the Attorney General to commence
litigation is retained by the President.
(c) The functions vested in the President by Section 113(g) of
the Act [42 U.S.C. 9613(g)], to receive notification of a natural
resource trustee's intent to file suit, are delegated to the heads
of Executive departments and agencies with respect to response
actions for which they have been delegated authority under Section
2 of this Order. The Administrator shall promulgate procedural
regulations for providing such notification.
(d) The functions vested in the President by Sections [sic]
310(d) and (e) of the Act [42 U.S.C. 9659(d), (e)], relating to
promulgation of regulations, are delegated to the Administrator.
Sec. 7. Financial Responsibility. (a) The functions vested in the
President by Section 107(k)(4)(B) of the Act [42 U.S.C.
9607(k)(4)(B)] are delegated to the Secretary of the Treasury. The
Administrator will provide the Secretary with such technical
information and assistance as the Administrator may have available.
(b)(1) The functions vested in the President by Section 108(a)(1)
of the Act [42 U.S.C. 9608(a)(1)] are delegated to the Coast Guard.
(2) Subject to Section 4(a) of this Order, the functions vested
in the President by Section 109 of the Act [42 U.S.C. 9609],
relating to violations of Section 108(a)(1) of the Act, are
delegated to the Coast Guard.
(c)(1) The functions vested in the President by Section 108(b) of
the Act are delegated to the Secretary of Transportation with
respect to all transportation related facilities, including any
pipeline, motor vehicle, rolling stock, or aircraft.
(2) Subject to Section 4(a) of this Order, the functions vested
in the President by Section 109 of the Act, relating to violations
of Section 108(a)(3) of the Act, are delegated to the Secretary of
Transportation.
(3) Subject to Section 4(a) of this Order, the functions vested
in the President by Section 109 of the Act, relating to violations
of Section 108(b) of the Act, are delegated to the Secretary of
Transportation with respect to all transportation related
facilities, including any pipeline, motor vehicle, rolling stock,
or aircraft.
(d)(1) Subject to subsection (c)(1) of this Section, the
functions vested in the President by Section 108(a)(4) and (b) of
the Act are delegated to the Administrator.
(2) Subject to Section 4(a) of this Order and subsection (c)(3)
of this Section, the functions vested in the President by Section
109 of the Act, relating to violations of Section 108(a)(4) and (b)
of the Act, are delegated to the Administrator.
Sec. 8. Employee Protection and Notice to Injured. (a) The
functions vested in the President by Section 110(e) of the Act [42
U.S.C. 9610(e)] are delegated to the Administrator.
(b) The functions vested in the President by Section 111(g) of
the Act [42 U.S.C. 9611(g)] are delegated to the Secretaries of
Defense and Energy with respect to releases from facilities or
vessels under the jurisdiction, custody or control of their
departments, respectively, including vessels bare-boat chartered
and operated.
(c) Subject to subsection (b) of this Section, the functions
vested in the President by Section 111(g) of the Act are delegated
to the Administrator.
Sec. 9. Management of the Hazardous Substance Superfund and
Claims. (a) The functions vested in the President by Section 111(a)
of the Act [42 U.S.C. 9611(a)] are delegated to the Administrator,
subject to the provisions of this Section and other applicable
provisions of this Order.
(b) The Administrator shall transfer to other agencies, from the
Hazardous Substance Superfund out of sums appropriated, such
amounts as the Administrator may determine necessary to carry out
the purposes of the Act. These amounts shall be consistent with the
President's Budget, within the total approved by the Congress,
unless a revised amount is approved by OMB. Funds appropriated
specifically for the Agency for Toxic Substances and Disease
Registry ("ATSDR"), shall be directly transferred to ATSDR,
consistent with fiscally responsible investment of trust fund
money.
(c) The Administrator shall chair a budget task force composed of
representatives of Executive departments and agencies having
responsibilities under this Order or the Act. The Administrator
shall also, as part of the budget request for the Environmental
Protection Agency, submit to OMB a budget for the Hazardous
Substance Superfund which is based on recommended levels developed
by the budget task force. The Administrator may prescribe reporting
and other forms, procedures, and guidelines to be used by the
agencies of the Task Force in preparing the budget request,
consistent with budgetary reporting requirements issued by OMB. The
Administrator shall prescribe forms to agency task force members
for reporting the expenditure of funds on a site specific basis.
(d) The Administrator and each department and agency head to whom
funds are provided pursuant to this Section, with respect to funds
provided to them, are authorized in accordance with Section 111(f)
of the Act [42 U.S.C. 9611(f)] to designate Federal officials who
may obligate such funds.
(e) The functions vested in the President by Section 112 of the
Act [42 U.S.C. 9612] are delegated to the Administrator for all
claims presented pursuant to Section 111 of the Act.
(f) The functions vested in the President by Section 111(o) of
the Act are delegated to the Administrator.
(g) The functions vested in the President by Section 117(e) of
the Act [42 U.S.C. 9617(e)] are delegated to the Administrator, to
be exercised in consultation with the Attorney General.
(h) The functions vested in the President by Section 123 of the
Act [42 U.S.C. 9623] are delegated to the Administrator.
(i) Funds from the Hazardous Substance Superfund may be used, at
the discretion of the Administrator or the Coast Guard, to pay for
removal actions for releases or threatened releases from facilities
or vessels under the jurisdiction, custody or control of Executive
departments and agencies but must be reimbursed to the Hazardous
Substance Superfund by such Executive department or agency.
Sec. 10. Federal Facilities. (a) When necessary, prior to
selection of a remedial action by the Administrator under Section
120(e)(4)(A) of the Act [42 U.S.C. 9620(e)(4)(A)], Executive
agencies shall have the opportunity to present their views to the
Administrator after using the procedures under Section 1-6 of
Executive Order No. 12088 of October 13, 1978 [set out as a note
under section 4321 of this title], or any other mutually acceptable
process. Notwithstanding subsection 1-602 of Executive Order No.
12088, the Director of the Office of Management and Budget shall
facilitate resolution of any issues.
(b) Executive Order No. 12088 of October 13, 1978, is amended by
renumbering the current Section 1-802 as Section 1-803 and
inserting the following new Section 1-802.
"1-802. Nothing in this Order shall create any right or benefit,
substantive or procedural, enforceable at law by a party against
the United States, its agencies, its officers, or any person."
Sec. 11. General Provisions. (a) The function vested in the
President by Section 101(37) of the Act [42 U.S.C. 9601(37)] is
delegated to the Administrator.
(b)(1) The function vested in the President by Section 105(f) of
the Act [42 U.S.C. 9605(f)], relating to reporting on minority
participation in contracts, is delegated to the Administrator.
(2) Subject to paragraph 1 of this subsection, the functions
vested in the President by Section 105(f) of the Act are delegated
to the heads of Executive departments and agencies in order to
carry out the functions delegated to them by this Order. Each
Executive department and agency shall provide to the Administrator
any requested information on minority contracting for inclusion in
the Section 105(f) annual report.
(c) The functions vested in the President by Section 126(c) of
the Act [42 U.S.C. 9626(c)] are delegated to the Administrator, to
be exercised in consultation with the Secretary of the Interior.
(d) The functions vested in the President by Section 301(c) of
the Act [42 U.S.C. 9651(c)] are delegated to the Secretary of the
Interior.
(e) Each agency shall have authority to issue such regulations as
may be necessary to carry out the functions delegated to them by
this Order.
(f) The performance of any function under this Order shall be
done in consultation with interested Federal departments and
agencies represented on the NRT, as well as with any other
interested Federal agency.
(g) The following functions vested in the President by the Act
which have been delegated or assigned by this Order may be
redelegated to the head of any Executive department or agency with
his consent: functions set forth in Sections 2 (except subsection
(b)), 3, 4(b), 4(c), 4(d), 5(b), 5(c), and 8(c) of this Order.
(h) Executive Order No. 12316 of August 14, 1981, is revoked.
Sec. 12. Brownfields. (a) The functions vested in the President
by Sections 101(39) and (41) and 104(k) of the Act [42 U.S.C.
9601(39), (41), 9604(k)] are delegated to the Administrator.
(b) The functions vested in the President by Section
128(b)(1)(B)(ii) of the Act [42 U.S.C. 9628(b)(1)(B)(ii)] are
delegated to the heads of the Executive departments and agencies,
to be exercised in consultation with the Administrator, with
respect to property subject to their jurisdiction, custody, or
control.
(c) The functions vested in the President by Section 128(b)(1)(E)
of the Act [42 U.S.C. 9628(b)(1)(E)] are delegated to the heads of
Executive departments and agencies in cases where they have acted
under subsection (b) of this Section.
(d) Subject to subsections (b) and (c) of this Section, the
functions vested in the President by Section 128 of the Act [42
U.S.C. 9628] are delegated to the Administrator.
Sec. 13. Preservation of Authorities. Nothing in this order shall
be construed to impair or otherwise affect the functions of the
Director of the Office of Management and Budget relating to budget,
administrative, or legislative proposals.
Sec. 14. General Provision. This order is intended only to
improve the internal management of the Federal Government and is
not intended to, and does not, create any right or benefit,
substantive or procedural, enforceable at law or equity by a party
against the United States, its departments, agencies,
instrumentalities, or entities, its officers or employees, or any
other person.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 9627 of this title.
-End-
-CITE-
42 USC Sec. 9616 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9616. Schedules
-STATUTE-
(a) Assessment and listing of facilities
It shall be a goal of this chapter that, to the maximum extent
practicable -
(1) not later than January 1, 1988, the President shall
complete preliminary assessments of all facilities that are
contained (as of October 17, 1986) on the Comprehensive
Environmental Response, Compensation, and Liability Information
System (CERCLIS) including in each assessment a statement as to
whether a site inspection is necessary and by whom it should be
carried out; and
(2) not later than January 1, 1989, the President shall assure
the completion of site inspections at all facilities for which
the President has stated a site inspection is necessary pursuant
to paragraph (1).
(b) Evaluation
Within 4 years after October 17, 1986, each facility listed (as
of October 17, 1986) in the CERCLIS shall be evaluated if the
President determines that such evaluation is warranted on the basis
of a site inspection or preliminary assessment. The evaluation
shall be in accordance with the criteria established in section
9605 of this title under the National Contingency Plan for
determining priorities among release for inclusion on the National
Priorities List. In the case of a facility listed in the CERCLIS
after October 17, 1986, the facility shall be evaluated within 4
years after the date of such listing if the President determines
that such evaluation is warranted on the basis of a site inspection
or preliminary assessment.
(c) Explanations
If any of the goals established by subsection (a) or (b) of this
section are not achieved, the President shall publish an
explanation of why such action could not be completed by the
specified date.
(d) Commencement of RI/FS
The President shall assure that remedial investigations and
feasibility studies (RI/FS) are commenced for facilities listed on
the National Priorities List, in addition to those commenced prior
to October 17, 1986, in accordance with the following schedule:
(1) not fewer than 275 by the date 36 months after October 17,
1986, and
(2) if the requirement of paragraph (1) is not met, not fewer
than an additional 175 by the date 4 years after October 17,
1986, an additional 200 by the date 5 years after October 17,
1986, and a total of 650 by the date 5 years after October 17,
1986.
(e) Commencement of remedial action
The President shall assure that substantial and continuous
physical on-site remedial action commences at facilities on the
National Priorities List, in addition to those facilities on which
remedial action has commenced prior to October 17, 1986, at a rate
not fewer than:
(1) 175 facilities during the first 36-month period after
October 17, 1986; and
(2) 200 additional facilities during the following 24 months
after such 36-month period.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 116, as added Pub. L. 99-499, title
I, Sec. 116, Oct. 17, 1986, 100 Stat. 1653.)
-End-
-CITE-
42 USC Sec. 9617 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9617. Public participation
-STATUTE-
(a) Proposed plan
Before adoption of any plan for remedial action to be undertaken
by the President, by a State, or by any other person, under section
9604, 9606, 9620, or 9622 of this title, the President or State, as
appropriate, shall take both of the following actions:
(1) Publish a notice and brief analysis of the proposed plan
and make such plan available to the public.
(2) Provide a reasonable opportunity for submission of written
and oral comments and an opportunity for a public meeting at or
near the facility at issue regarding the proposed plan and
regarding any proposed findings under section 9621(d)(4) of this
title (relating to cleanup standards). The President or the State
shall keep a transcript of the meeting and make such transcript
available to the public.
The notice and analysis published under paragraph (1) shall include
sufficient information as may be necessary to provide a reasonable
explanation of the proposed plan and alternative proposals
considered.
(b) Final plan
Notice of the final remedial action plan adopted shall be
published and the plan shall be made available to the public before
commencement of any remedial action. Such final plan shall be
accompanied by a discussion of any significant changes (and the
reasons for such changes) in the proposed plan and a response to
each of the significant comments, criticisms, and new data
submitted in written or oral presentations under subsection (a) of
this section.
(c) Explanation of differences
After adoption of a final remedial action plan -
(1) if any remedial action is taken,
(2) if any enforcement action under section 9606 of this title
is taken, or
(3) if any settlement or consent decree under section 9606 of
this title or section 9622 of this title is entered into,
and if such action, settlement, or decree differs in any
significant respects from the final plan, the President or the
State shall publish an explanation of the significant differences
and the reasons such changes were made.
(d) Publication
For the purposes of this section, publication shall include, at a
minimum, publication in a major local newspaper of general
circulation. In addition, each item developed, received, published,
or made available to the public under this section shall be
available for public inspection and copying at or near the facility
at issue.
(e) Grants for technical assistance
(1) Authority
Subject to such amounts as are provided in appropriations Acts
and in accordance with rules promulgated by the President, the
President may make grants available to any group of individuals
which may be affected by a release or threatened release at any
facility which is listed on the National Priorities List under
the National Contingency Plan. Such grants may be used to obtain
technical assistance in interpreting information with regard to
the nature of the hazard, remedial investigation and feasibility
study, record of decision, remedial design, selection and
construction of remedial action, operation and maintenance, or
removal action at such facility.
(2) Amount
The amount of any grant under this subsection may not exceed
$50,000 for a single grant recipient. The President may waive the
$50,000 limitation in any case where such waiver is necessary to
carry out the purposes of this subsection. Each grant recipient
shall be required, as a condition of the grant, to contribute at
least 20 percent of the total of costs of the technical
assistance for which such grant is made. The President may waive
the 20 percent contribution requirement if the grant recipient
demonstrates financial need and such waiver is necessary to
facilitate public participation in the selection of remedial
action at the facility. Not more than one grant may be made under
this subsection with respect to a single facility, but the grant
may be renewed to facilitate public participation at all stages
of remedial action.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 117, as added Pub. L. 99-499, title
I, Sec. 117, Oct. 17, 1986, 100 Stat. 1654.)
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9611, 9613, 9620 of this
title.
-End-
-CITE-
42 USC Sec. 9618 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9618. High priority for drinking water supplies
-STATUTE-
For purposes of taking action under section 9604 or 9606 of this
title and listing facilities on the National Priorities List, the
President shall give a high priority to facilities where the
release of hazardous substances or pollutants or contaminants has
resulted in the closing of drinking water wells or has contaminated
a principal drinking water supply.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 118, as added Pub. L. 99-499, title
I, Sec. 118(a), Oct. 17, 1986, 100 Stat. 1655.)
-End-
-CITE-
42 USC Sec. 9619 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9619. Response action contractors
-STATUTE-
(a) Liability of response action contractors
(1) Response action contractors
A person who is a response action contractor with respect to
any release or threatened release of a hazardous substance or
pollutant or contaminant from a vessel or facility shall not be
liable under this subchapter or under any other Federal law to
any person for injuries, costs, damages, expenses, or other
liability (including but not limited to claims for
indemnification or contribution and claims by third parties for
death, personal injury, illness or loss of or damage to property
or economic loss) which results from such release or threatened
release.
(2) Negligence, etc.
Paragraph (1) shall not apply in the case of a release that is
caused by conduct of the response action contractor which is
negligent, grossly negligent, or which constitutes intentional
misconduct.
(3) Effect on warranties; employer liability
Nothing in this subsection shall affect the liability of any
person under any warranty under Federal, State, or common law.
Nothing in this subsection shall affect the liability of an
employer who is a response action contractor to any employee of
such employer under any provision of law, including any provision
of any law relating to worker's compensation.
(4) Governmental employees
A state employee or an employee of a political subdivision who
provides services relating to response action while acting within
the scope of his authority as a governmental employee shall have
the same exemption from liability (subject to the other
provisions of this section) as is provided to the response action
contractor under this section.
(b) Savings provisions
(1) Liability of other persons
The defense provided by section 9607(b)(3) of this title shall
not be available to any potentially responsible party with
respect to any costs or damages caused by any act or omission of
a response action contractor. Except as provided in subsection
(a)(4) of this section and the preceding sentence, nothing in
this section shall affect the liability under this chapter or
under any other Federal or State law of any person, other than a
response action contractor.
(2) Burden of plaintiff
Nothing in this section shall affect the plaintiff's burden of
establishing liability under this subchapter.
(c) Indemnification
(1) In general
The President may agree to hold harmless and indemnify any
response action contractor meeting the requirements of this
subsection against any liability (including the expenses of
litigation or settlement) for negligence arising out of the
contractor's performance in carrying out response action
activities under this subchapter, unless such liability was
caused by conduct of the contractor which was grossly negligent
or which constituted intentional misconduct.
(2) Applicability
This subsection shall apply only with respect to a response
action carried out under written agreement with -
(A) the President;
(B) any Federal agency;
(C) a State or political subdivision which has entered into a
contract or cooperative agreement in accordance with section
9604(d)(1) of this title; or
(D) any potentially responsible party carrying out any
agreement under section 9622 of this title (relating to
settlements) or section 9606 of this title (relating to
abatement).
(3) Source of funding
This subsection shall not be subject to section 1301 or 1341 of
title 31 or section 11 of title 41 or to section 9662 of this
title. For purposes of section 9611 of this title, amounts
expended pursuant to this subsection for indemnification of any
response action contractor (except with respect to federally
owned or operated facilities) shall be considered governmental
response costs incurred pursuant to section 9604 of this title.
If sufficient funds are unavailable in the Hazardous Substance
Superfund established under subchapter A of chapter 98 of title
26 to make payments pursuant to such indemnification or if the
Fund is repealed, there are authorized to be appropriated such
amounts as may be necessary to make such payments.
(4) Requirements
An indemnification agreement may be provided under this
subsection only if the President determines that each of the
following requirements are met:
(A) The liability covered by the indemnification agreement
exceeds or is not covered by insurance available, at a fair and
reasonable price, to the contractor at the time the contractor
enters into the contract to provide response action, and
adequate insurance to cover such liability is not generally
available at the time the response action contract is entered
into.
(B) The response action contractor has made diligent efforts
to obtain insurance coverage from non-Federal sources to cover
such liability.
(C) In the case of a response action contract covering more
than one facility, the response action contractor agrees to
continue to make such diligent efforts each time the contractor
begins work under the contract at a new facility.
(5) Limitations
(A) Liability covered
Indemnification under this subsection shall apply only to
response action contractor liability which results from a
release of any hazardous substance or pollutant or contaminant
if such release arises out of response action activities.
(B) Deductibles and limits
An indemnification agreement under this subsection shall
include deductibles and shall place limits on the amount of
indemnification to be made available.
(C) Contracts with potentially responsible parties
(i) Decision to indemnify
In deciding whether to enter into an indemnification
agreement with a response action contractor carrying out a
written contract or agreement with any potentially
responsible party, the President shall determine an amount
which the potentially responsible party is able to indemnify
the contractor. The President may enter into such an
indemnification agreement only if the President determines
that such amount of indemnification is inadequate to cover
any reasonable potential liability of the contractor arising
out of the contractor's negligence in performing the contract
or agreement with such party. The President shall make the
determinations in the preceding sentences (with respect to
the amount and the adequacy of the amount) taking into
account the total net assets and resources of potentially
responsible parties with respect to the facility at the time
of such determinations.
(ii) Conditions
The President may pay a claim under an indemnification
agreement referred to in clause (i) for the amount determined
under clause (i) only if the contractor has exhausted all
administrative, judicial, and common law claims for
indemnification against all potentially responsible parties
participating in the clean-up of the facility with respect to
the liability of the contractor arising out of the
contractor's negligence in performing the contract or
agreement with such party. Such indemnification agreement
shall require such contractor to pay any deductible
established under subparagraph (B) before the contractor may
recover any amount from the potentially responsible party or
under the indemnification agreement.
(D) RCRA facilities
No owner or operator of a facility regulated under the Solid
Waste Disposal Act [42 U.S.C. 6901 et seq.] may be indemnified
under this subsection with respect to such facility.
(E) Persons retained or hired
A person retained or hired by a person described in
subsection (e)(2)(B) of this section shall be eligible for
indemnification under this subsection only if the President
specifically approves of the retaining or hiring of such
person.
(6) Cost recovery
For purposes of section 9607 of this title, amounts expended
pursuant to this subsection for indemnification of any person who
is a response action contractor with respect to any release or
threatened release shall be considered a cost of response
incurred by the United States Government with respect to such
release.
(7) Regulations
The President shall promulgate regulations for carrying out the
provisions of this subsection. Before promulgation of the
regulations, the President shall develop guidelines to carry out
this section. Development of such guidelines shall include
reasonable opportunity for public comment.
(8) Study
The Comptroller General shall conduct a study in the fiscal
year ending September 30, 1989, on the application of this
subsection, including whether indemnification agreements under
this subsection are being used, the number of claims that have
been filed under such agreements, and the need for this
subsection. The Comptroller General shall report the findings of
the study to Congress no later than September 30, 1989.
(d) Exception
The exemption provided under subsection (a) of this section and
the authority of the President to offer indemnification under
subsection (c) of this section shall not apply to any person
covered by the provisions of paragraph (1), (2), (3), or (4) of
section 9607(a) of this title with respect to the release or
threatened release concerned if such person would be covered by
such provisions even if such person had not carried out any actions
referred to in subsection (e) of this section.
(e) Definitions
For purposes of this section -
(1) Response action contract
The term "response action contract" means any written contract
or agreement entered into by a response action contractor (as
defined in paragraph (2)(A) of this subsection) with -
(A) the President;
(B) any Federal agency;
(C) a State or political subdivision which has entered into a
contract or cooperative agreement in accordance with section
9604(d)(1) of this title; or
(D) any potentially responsible party carrying out an
agreement under section 9606 or 9622 of this title;
to provide any remedial action under this chapter at a facility
listed on the National Priorities List, or any removal under this
chapter, with respect to any release or threatened release of a
hazardous substance or pollutant or contaminant from the facility
or to provide any evaluation, planning, engineering, surveying
and mapping, design, construction, equipment, or any ancillary
services thereto for such facility.
(2) Response action contractor
The term "response action contractor" means -
(A) any -
(i) person who enters into a response action contract with
respect to any release or threatened release of a hazardous
substance or pollutant or contaminant from a facility and is
carrying out such contract; and )1(!
(ii) person, public or nonprofit private entity, conducting
a field demonstration pursuant to section 9660(b) of this
title; and
(iii) Recipients )2(! of grants (including sub-grantees)
under section 9660a )3(! of this title for the training and
education of workers who are or may be engaged in activities
related to hazardous waste removal, containment, or emergency
response under this chapter; and )1(!
(B) any person who is retained or hired by a person described
in subparagraph (A) to provide any services relating to a
response action; and
(C) any surety who after October 16, 1990, provides a bid,
performance or payment bond to a response action contractor,
and begins activities to meet its obligations under such bond,
but only in connection with such activities or obligations.
(3) Insurance
The term "insurance" means liability insurance which is fair
and reasonably priced, as determined by the President, and which
is made available at the time the contractor enters into the
response action contract to provide response action.
(f) Competition
Response action contractors and subcontractors for program
management, construction management, architectural and engineering,
surveying and mapping, and related services shall be selected in
accordance with title IX of the Federal Property and Administrative
Services Act of 1949.)3(! The Federal selection procedures shall
apply to appropriate contracts negotiated by all Federal
governmental agencies involved in carrying out this chapter. Such
procedures shall be followed by response action contractors and
subcontractors.
(g) Surety bonds
(1) If under sections 3131 and 3133 of title 40, surety bonds are
required for any direct Federal procurement of any response action
contract and are not waived pursuant to section 3134 of title 40,
they shall be issued in accordance with sections 3131 and 3133 of
title 40.
(2) If under applicable Federal law surety bonds are required for
any direct Federal procurement of any response action contract, no
right of action shall accrue on the performance bond issued on such
response action contract to or for the use of any person other than
the obligee named in the bond.
(3) If under applicable Federal law surety bonds are required for
any direct Federal procurement of any response action contract,
unless otherwise provided for by the procuring agency in the bond,
in the event of a default, the surety's liability on a performance
bond shall be only for the cost of completion of the contract work
in accordance with the plans and specifications less the balance of
funds remaining to be paid under the contract, up to the penal sum
of the bond. The surety shall in no event be liable on bonds to
indemnify or compensate the obligee for loss or liability arising
from personal injury or property damage whether or not caused by a
breach of the bonded contract.
(4) Nothing in this subsection shall be construed as preempting,
limiting, superseding, affecting, applying to, or modifying any
State laws, regulations, requirements, rules, practices or
procedures. Nothing in this subsection shall be construed as
affecting, applying to, modifying, limiting, superseding, or
preempting any rights, authorities, liabilities, demands, actions,
causes of action, losses, judgments, claims, statutes of
limitation, or obligations under Federal or State law, which do not
arise on or under the bond.
(5) This subsection shall not apply to bonds executed before
October 17, 1990.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 119, as added Pub. L. 99-499, title
I, Sec. 119, Oct. 17, 1986, 100 Stat. 1662; amended Pub. L. 99-514,
Sec. 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100-202, Sec. 101(f)
[title II, Sec. 201], Dec. 22, 1987, 101 Stat. 1329-187, 1329-198;
Pub. L. 101-584, Sec. 1, Nov. 15, 1990, 104 Stat. 2872; Pub. L.
102-484, div. A, title III, Sec. 331(a), Oct. 23, 1992, 106 Stat.
2373; Pub. L. 105-276, title III, Oct. 21, 1998, 112 Stat. 2497.)
-REFTEXT-
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsec. (c)(5)(D),
is title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as
amended generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90
Stat. 2795, which is classified generally to chapter 82 (Sec. 6901
et seq.) of this title. For complete classification of this Act to
the Code, see Short Title note set out under section 6901 of this
title and Tables.
Section 9660a of this title, referred to in subsec.
(e)(2)(A)(iii), was in the original "section 126" probably meaning
section 126 of Pub. L. 99-499, title I, Oct. 17, 1986, 100 Stat.
1690. Subsecs. (a) to (f) of section 126, which relate to worker
protection standards, are set out as a note under section 655 of
Title 29, Labor. Subsec. (g) of section 126, which relates grants
for training and education of workers who are or may be engaged in
activities related to hazardous waste removal, etc., is classified
to section 9660a of this title.
The Federal Property and Administrative Services Act of 1949,
referred to in subsec. (f), is act June 30, 1949, ch. 288, 63 Stat.
377, as amended. Title IX of the Act, which was classified
generally to subchapter VI (Sec. 541 et seq.) of chapter 10 of
former Title 40, Public Buildings, Property, and Works, was
repealed and reenacted by Pub. L. 107-217, Secs. 1, 6(b), Aug. 21,
2002, 116 Stat. 1062, 1304, as chapter 11 (Sec. 1101 et seq.) of
Title 40, Public Buildings, Property, and Works. For disposition of
sections of former Title 40 to revised Title 40, see Table
preceding section 101 of Title 40. For complete classification of
this Act to the Code, see Tables.
-COD-
CODIFICATION
In subsec. (g)(1), "sections 3131 and 3133 of title 40"
substituted for "the Act of August 24, 1935 (40 U.S.C. 270a-270d),
commonly referred to as the 'Miller Act' " and for "such Act of
August 24, 1935" and "section 3134 of title 40" substituted for
"the Act of April 29, 1941 (40 U.S.C. 270e-270f)", on authority of
Pub. L. 107-217, Sec. 5(c), Aug. 21, 2002, 116 Stat. 1303, the
first section of which enacted Title 40, Public Buildings,
Property, and Works.
-MISC1-
AMENDMENTS
1998 - Subsec. (e)(2)(C). Pub. L. 105-276 struck out "and before
January 1, 1996," after "1990,".
Subsec. (g)(5). Pub. L. 105-276 struck out ", or after December
31, 1995" before period at end.
1992 - Subsec. (e)(2)(C). Pub. L. 102-484, Sec. 321(a)(1)(A),
substituted "January 1, 1996," for "January 1, 1993".
Subsec. (g)(1). Pub. L. 102-484, Sec. 331(a)(2), substituted "the
Act of August 24, 1935 (40 U.S.C. 270a-270d), commonly referred to
as the 'Miller Act'," for "the Miller Act, 40 U.S.C. sections
270a-270f,", inserted "and are not waived pursuant to the Act of
April 29, 1941 (40 U.S.C. 270e-270f)", and substituted "in
accordance with such Act of August 24, 1935." for "in accordance
with 40 U.S.C. sections 270a-270d."
Subsec. (g)(5). Pub. L. 102-484, Sec. 331(a)(1)(B), substituted
"December 31, 1995" for "December 31, 1992".
1990 - Subsec. (e)(2)(C). Pub. L. 101-584, Sec. 1(1), (2), added
subpar. (C).
Subsec. (g). Pub. L. 101-584, Sec. 1(3), added subsec. (g).
1987 - Subsec. (e)(2)(A)(iii). Pub. L. 100-202 added cl. (iii).
1986 - Subsec. (c)(3). Pub. L. 99-514 substituted "Internal
Revenue Code of 1986" for "Internal Revenue Code of 1954", which
for purposes of codification was translated as "title 26" thus
requiring no change in text.
COORDINATION OF TITLES I TO IV OF PUB. L. 99-499
Any provision of titles I to IV of Pub. L. 99-499, imposing any
tax, premium, or fee; establishing any trust fund; or authorizing
expenditures from any trust fund, to have no force or effect, see
section 531 of Pub. L. 99-499, set out as a note under section 1 of
Title 26, Internal Revenue Code.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 9613 of this title; title
10 section 2701; title 14 section 691.
-FOOTNOTE-
)1(! So in original. The word "and" probably should not appear.
)2(! So in original. Probably should not be capitalized.
)3(! See References in Text note below.
-End-
-CITE-
42 USC Sec. 9620 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9620. Federal facilities
-STATUTE-
(a) Application of chapter to Federal Government
(1) In general
Each department, agency, and instrumentality of the United
States (including the executive, legislative, and judicial
branches of government) shall be subject to, and comply with,
this chapter in the same manner and to the same extent, both
procedurally and substantively, as any nongovernmental entity,
including liability under section 9607 of this title. Nothing in
this section shall be construed to affect the liability of any
person or entity under sections 9606 and 9607 of this title.
(2) Application of requirements to Federal facilities
All guidelines, rules, regulations, and criteria which are
applicable to preliminary assessments carried out under this
chapter for facilities at which hazardous substances are located,
applicable to evaluations of such facilities under the National
Contingency Plan, applicable to inclusion on the National
Priorities List, or applicable to remedial actions at such
facilities shall also be applicable to facilities which are owned
or operated by a department, agency, or instrumentality of the
United States in the same manner and to the extent as such
guidelines, rules, regulations, and criteria are applicable to
other facilities. No department, agency, or instrumentality of
the United States may adopt or utilize any such guidelines,
rules, regulations, or criteria which are inconsistent with the
guidelines, rules, regulations, and criteria established by the
Administrator under this chapter.
(3) Exceptions
This subsection shall not apply to the extent otherwise
provided in this section with respect to applicable time periods.
This subsection shall also not apply to any requirements relating
to bonding, insurance, or financial responsibility. Nothing in
this chapter shall be construed to require a State to comply with
section 9604(c)(3) of this title in the case of a facility which
is owned or operated by any department, agency, or
instrumentality of the United States.
(4) State laws
State laws concerning removal and remedial action, including
State laws regarding enforcement, shall apply to removal and
remedial action at facilities owned or operated by a department,
agency, or instrumentality of the United States or facilities
that are the subject of a deferral under subsection (h)(3)(C) of
this section when such facilities are not included on the
National Priorities List. The preceding sentence shall not apply
to the extent a State law would apply any standard or requirement
to such facilities which is more stringent than the standards and
requirements applicable to facilities which are not owned or
operated by any such department, agency, or instrumentality.
(b) Notice
Each department, agency, and instrumentality of the United States
shall add to the inventory of Federal agency hazardous waste
facilities required to be submitted under section 3016 of the Solid
Waste Disposal Act [42 U.S.C. 6937] (in addition to the information
required under section 3016(a)(3) of such Act [42 U.S.C.
6937(a)(3)]) information on contamination from each facility owned
or operated by the department, agency, or instrumentality if such
contamination affects contiguous or adjacent property owned by the
department, agency, or instrumentality or by any other person,
including a description of the monitoring data obtained.
(c) Federal Agency Hazardous Waste Compliance Docket
The Administrator shall establish a special Federal Agency
Hazardous Waste Compliance Docket (hereinafter in this section
referred to as the "docket") which shall contain each of the
following:
(1) All information submitted under section 3016 of the Solid
Waste Disposal Act [42 U.S.C. 6937] and subsection (b) of this
section regarding any Federal facility and notice of each
subsequent action taken under this chapter with respect to the
facility.
(2) Information submitted by each department, agency, or
instrumentality of the United States under section 3005 or 3010
of such Act [42 U.S.C. 6925, 6930].
(3) Information submitted by the department, agency, or
instrumentality under section 9603 of this title.
The docket shall be available for public inspection at reasonable
times. Six months after establishment of the docket and every 6
months thereafter, the Administrator shall publish in the Federal
Register a list of the Federal facilities which have been included
in the docket during the immediately preceding 6-month period. Such
publication shall also indicate where in the appropriate regional
office of the Environmental Protection Agency additional
information may be obtained with respect to any facility on the
docket. The Administrator shall establish a program to provide
information to the public with respect to facilities which are
included in the docket under this subsection.
(d) Assessment and evaluation
(1) In general
The Administrator shall take steps to assure that a preliminary
assessment is conducted for each facility on the docket.
Following such preliminary assessment, the Administrator shall,
where appropriate -
(A) evaluate such facilities in accordance with the criteria
established in accordance with section 9605 of this title under
the National Contingency Plan for determining priorities among
releases; and
(B) include such facilities on the National Priorities List
maintained under such plan if the facility meets such criteria.
(2) Application of criteria
(A) In general
Subject to subparagraph (B), the criteria referred to in
paragraph (1) shall be applied in the same manner as the
criteria are applied to facilities that are owned or operated
by persons other than the United States.
(B) Response under other law
It shall be an appropriate factor to be taken into
consideration for the purposes of section 9605(a)(8)(A) of this
title that the head of the department, agency, or
instrumentality that owns or operates a facility has arranged
with the Administrator or appropriate State authorities to
respond appropriately, under authority of a law other than this
chapter, to a release or threatened release of a hazardous
substance.
(3) Completion
Evaluation and listing under this subsection shall be completed
in accordance with a reasonable schedule established by the
Administrator.
(e) Required action by department
(1) RI/FS
Not later than 6 months after the inclusion of any facility on
the National Priorities List, the department, agency, or
instrumentality which owns or operates such facility shall, in
consultation with the Administrator and appropriate State
authorities, commence a remedial investigation and feasibility
study for such facility. In the case of any facility which is
listed on such list before October 17, 1986, the department,
agency, or instrumentality which owns or operates such facility
shall, in consultation with the Administrator and appropriate
State authorities, commence such an investigation and study for
such facility within one year after October 17, 1986. The
Administrator and appropriate State authorities shall publish a
timetable and deadlines for expeditious completion of such
investigation and study.
(2) Commencement of remedial action; interagency agreement
The Administrator shall review the results of each
investigation and study conducted as provided in paragraph (1).
Within 180 days thereafter, the head of the department, agency,
or instrumentality concerned shall enter into an interagency
agreement with the Administrator for the expeditious completion
by such department, agency, or instrumentality of all necessary
remedial action at such facility. Substantial continuous physical
onsite remedial action shall be commenced at each facility not
later than 15 months after completion of the investigation and
study. All such interagency agreements, including review of
alternative remedial action plans and selection of remedial
action, shall comply with the public participation requirements
of section 9617 of this title.
(3) Completion of remedial actions
Remedial actions at facilities subject to interagency
agreements under this section shall be completed as expeditiously
as practicable. Each agency shall include in its annual budget
submissions to the Congress a review of alternative agency
funding which could be used to provide for the costs of remedial
action. The budget submission shall also include a statement of
the hazard posed by the facility to human health, welfare, and
the environment and identify the specific consequences of failure
to begin and complete remedial action.
(4) Contents of agreement
Each interagency agreement under this subsection shall include,
but shall not be limited to, each of the following:
(A) A review of alternative remedial actions and selection of
a remedial action by the head of the relevant department,
agency, or instrumentality and the Administrator or, if unable
to reach agreement on selection of a remedial action, selection
by the Administrator.
(B) A schedule for the completion of each such remedial
action.
(C) Arrangements for long-term operation and maintenance of
the facility.
(5) Annual report
Each department, agency, or instrumentality responsible for
compliance with this section shall furnish an annual report to
the Congress concerning its progress in implementing the
requirements of this section. Such reports shall include, but
shall not be limited to, each of the following items:
(A) A report on the progress in reaching interagency
agreements under this section.
(B) The specific cost estimates and budgetary proposals
involved in each interagency agreement.
(C) A brief summary of the public comments regarding each
proposed interagency agreement.
(D) A description of the instances in which no agreement was
reached.
(E) A report on progress in conducting investigations and
studies under paragraph (1).
(F) A report on progress in conducting remedial actions.
(G) A report on progress in conducting remedial action at
facilities which are not listed on the National Priorities
List.
With respect to instances in which no agreement was reached
within the required time period, the department, agency, or
instrumentality filing the report under this paragraph shall
include in such report an explanation of the reasons why no
agreement was reached. The annual report required by this
paragraph shall also contain a detailed description on a
State-by-State basis of the status of each facility subject to
this section, including a description of the hazard presented by
each facility, plans and schedules for initiating and completing
response action, enforcement status (where appropriate), and an
explanation of any postponements or failure to complete response
action. Such reports shall also be submitted to the affected
States.
(6) Settlements with other parties
If the Administrator, in consultation with the head of the
relevant department, agency, or instrumentality of the United
States, determines that remedial investigations and feasibility
studies or remedial action will be done properly at the Federal
facility by another potentially responsible party within the
deadlines provided in paragraphs (1), (2), and (3) of this
subsection, the Administrator may enter into an agreement with
such party under section 9622 of this title (relating to
settlements). Following approval by the Attorney General of any
such agreement relating to a remedial action, the agreement shall
be entered in the appropriate United States district court as a
consent decree under section 9606 of this title.
(f) State and local participation
The Administrator and each department, agency, or instrumentality
responsible for compliance with this section shall afford to
relevant State and local officials the opportunity to participate
in the planning and selection of the remedial action, including but
not limited to the review of all applicable data as it becomes
available and the development of studies, reports, and action
plans. In the case of State officials, the opportunity to
participate shall be provided in accordance with section 9621 of
this title.
(g) Transfer of authorities
Except for authorities which are delegated by the Administrator
to an officer or employee of the Environmental Protection Agency,
no authority vested in the Administrator under this section may be
transferred, by executive order of the President or otherwise, to
any other officer or employee of the United States or to any other
person.
(h) Property transferred by Federal agencies
(1) Notice
After the last day of the 6-month period beginning on the
effective date of regulations under paragraph (2) of this
subsection, whenever any department, agency, or instrumentality
of the United States enters into any contract for the sale or
other transfer of real property which is owned by the United
States and on which any hazardous substance was stored for one
year or more, known to have been released, or disposed of, the
head of such department, agency, or instrumentality shall include
in such contract notice of the type and quantity of such
hazardous substance and notice of the time at which such storage,
release, or disposal took place, to the extent such information
is available on the basis of a complete search of agency files.
(2) Form of notice; regulations
Notice under this subsection shall be provided in such form and
manner as may be provided in regulations promulgated by the
Administrator. As promptly as practicable after October 17, 1986,
but not later than 18 months after October 17, 1986, and after
consultation with the Administrator of the General Services
Administration, the Administrator shall promulgate regulations
regarding the notice required to be provided under this
subsection.
(3) Contents of certain deeds
(A) In general
After the last day of the 6-month period beginning on the
effective date of regulations under paragraph (2) of this
subsection, in the case of any real property owned by the
United States on which any hazardous substance was stored for
one year or more, known to have been released, or disposed of,
each deed entered into for the transfer of such property by the
United States to any other person or entity shall contain -
(i) to the extent such information is available on the
basis of a complete search of agency files -
(I) a notice of the type and quantity of such hazardous
substances,
(II) notice of the time at which such storage, release,
or disposal took place, and
(III) a description of the remedial action taken, if any;
(ii) a covenant warranting that -
(I) all remedial action necessary to protect human health
and the environment with respect to any such substance
remaining on the property has been taken before the date of
such transfer, and
(II) any additional remedial action found to be necessary
after the date of such transfer shall be conducted by the
United States; and
(iii) a clause granting the United States access to the
property in any case in which remedial action or corrective
action is found to be necessary after the date of such
transfer.
(B) Covenant requirements
For purposes of subparagraphs (A)(ii)(I) and (C)(iii), all
remedial action described in such subparagraph has been taken
if the construction and installation of an approved remedial
design has been completed, and the remedy has been demonstrated
to the Administrator to be operating properly and successfully.
The carrying out of long-term pumping and treating, or
operation and maintenance, after the remedy has been
demonstrated to the Administrator to be operating properly and
successfully does not preclude the transfer of the property.
The requirements of subparagraph (A)(ii) shall not apply in any
case in which the person or entity to whom the real property is
transferred is a potentially responsible party with respect to
such property. The requirements of subparagraph (A)(ii) shall
not apply in any case in which the transfer of the property
occurs or has occurred by means of a lease, without regard to
whether the lessee has agreed to purchase the property or
whether the duration of the lease is longer than 55 years. In
the case of a lease entered into after September 30, 1995, with
respect to real property located at an installation approved
for closure or realignment under a base closure law, the agency
leasing the property, in consultation with the Administrator,
shall determine before leasing the property that the property
is suitable for lease, that the uses contemplated for the lease
are consistent with protection of human health and the
environment, and that there are adequate assurances that the
United States will take all remedial action referred to in
subparagraph (A)(ii) that has not been taken on the date of the
lease.
(C) Deferral
(i) In general
The Administrator, with the concurrence of the Governor of
the State in which the facility is located (in the case of
real property at a Federal facility that is listed on the
National Priorities List), or the Governor of the State in
which the facility is located (in the case of real property
at a Federal facility not listed on the National Priorities
List) may defer the requirement of subparagraph (A)(ii)(I)
with respect to the property if the Administrator or the
Governor, as the case may be, determines that the property is
suitable for transfer, based on a finding that -
(I) the property is suitable for transfer for the use
intended by the transferee, and the intended use is
consistent with protection of human health and the
environment;
(II) the deed or other agreement proposed to govern the
transfer between the United States and the transferee of
the property contains the assurances set forth in clause
(ii);
(III) the Federal agency requesting deferral has provided
notice, by publication in a newspaper of general
circulation in the vicinity of the property, of the
proposed transfer and of the opportunity for the public to
submit, within a period of not less than 30 days after the
date of the notice, written comments on the suitability of
the property for transfer; and
(IV) the deferral and the transfer of the property will
not substantially delay any necessary response action at
the property.
(ii) Response action assurances
With regard to a release or threatened release of a
hazardous substance for which a Federal agency is potentially
responsible under this section, the deed or other agreement
proposed to govern the transfer shall contain assurances that
-
(I) provide for any necessary restrictions on the use of
the property to ensure the protection of human health and
the environment;
(II) provide that there will be restrictions on use
necessary to ensure that required remedial investigations,
response action, and oversight activities will not be
disrupted;
(III) provide that all necessary response action will be
taken and identify the schedules for investigation and
completion of all necessary response action as approved by
the appropriate regulatory agency; and
(IV) provide that the Federal agency responsible for the
property subject to transfer will submit a budget request
to the Director of the Office of Management and Budget that
adequately addresses schedules for investigation and
completion of all necessary response action, subject to
congressional authorizations and appropriations.
(iii) Warranty
When all response action necessary to protect human health
and the environment with respect to any substance remaining
on the property on the date of transfer has been taken, the
United States shall execute and deliver to the transferee an
appropriate document containing a warranty that all such
response action has been taken, and the making of the
warranty shall be considered to satisfy the requirement of
subparagraph (A)(ii)(I).
(iv) Federal responsibility
A deferral under this subparagraph shall not increase,
diminish, or affect in any manner any rights or obligations
of a Federal agency (including any rights or obligations
under this section and sections 9606 and 9607 of this title
existing prior to transfer) with respect to a property
transferred under this subparagraph.
(4) Identification of uncontaminated property
(A) In the case of real property to which this paragraph
applies (as set forth in subparagraph (E)), the head of the
department, agency, or instrumentality of the United States with
jurisdiction over the property shall identify the real property
on which no hazardous substances and no petroleum products or
their derivatives were known to have been released or disposed
of. Such identification shall be based on an investigation of the
real property to determine or discover the obviousness of the
presence or likely presence of a release or threatened release of
any hazardous substance or any petroleum product or its
derivatives, including aviation fuel and motor oil, on the real
property. The identification shall consist, at a minimum, of a
review of each of the following sources of information concerning
the current and previous uses of the real property:
(i) A detailed search of Federal Government records
pertaining to the property.
(ii) Recorded chain of title documents regarding the real
property.
(iii) Aerial photographs that may reflect prior uses of the
real property and that are reasonably obtainable through State
or local government agencies.
(iv) A visual inspection of the real property and any
buildings, structures, equipment, pipe, pipeline, or other
improvements on the real property, and a visual inspection of
properties immediately adjacent to the real property.
(v) A physical inspection of property adjacent to the real
property, to the extent permitted by owners or operators of
such property.
(vi) Reasonably obtainable Federal, State, and local
government records of each adjacent facility where there has
been a release of any hazardous substance or any petroleum
product or its derivatives, including aviation fuel and motor
oil, and which is likely to cause or contribute to a release or
threatened release of any hazardous substance or any petroleum
product or its derivatives, including aviation fuel and motor
oil, on the real property.
(vii) Interviews with current or former employees involved in
operations on the real property.
Such identification shall also be based on sampling, if
appropriate under the circumstances. The results of the
identification shall be provided immediately to the Administrator
and State and local government officials and made available to
the public.
(B) The identification required under subparagraph (A) is not
complete until concurrence in the results of the identification
is obtained, in the case of real property that is part of a
facility on the National Priorities List, from the Administrator,
or, in the case of real property that is not part of a facility
on the National Priorities List, from the appropriate State
official. In the case of a concurrence which is required from a
State official, the concurrence is deemed to be obtained if,
within 90 days after receiving a request for the concurrence, the
State official has not acted (by either concurring or declining
to concur) on the request for concurrence.
(C)(i) Except as provided in clauses (ii), (iii), and (iv), the
identification and concurrence required under subparagraphs (A)
and (B), respectively, shall be made at least 6 months before the
termination of operations on the real property.
(ii) In the case of real property described in subparagraph
(E)(i)(II) on which operations have been closed or realigned or
scheduled for closure or realignment pursuant to a base closure
law described in subparagraph (E)(ii)(I) or (E)(ii)(II) by
October 19, 1992, the identification and concurrence required
under subparagraphs (A) and (B), respectively, shall be made not
later than 18 months after October 19, 1992.
(iii) In the case of real property described in subparagraph
(E)(i)(II) on which operations are closed or realigned or become
scheduled for closure or realignment pursuant to the base closure
law described in subparagraph (E)(ii)(II) after October 19, 1992,
the identification and concurrence required under subparagraphs
(A) and (B), respectively, shall be made not later than 18 months
after the date by which a joint resolution disapproving the
closure or realignment of the real property under section 2904(b)
of such base closure law must be enacted, and such a joint
resolution has not been enacted.
(iv) In the case of real property described in subparagraphs
(E)(i)(II) on which operations are closed or realigned pursuant
to a base closure law described in subparagraph (E)(ii)(III) or
(E)(ii)(IV), the identification and concurrence required under
subparagraphs (A) and (B), respectively, shall be made not later
than 18 months after the date on which the real property is
selected for closure or realignment pursuant to such a base
closure law.
(D) In the case of the sale or other transfer of any parcel of
real property identified under subparagraph (A), the deed entered
into for the sale or transfer of such property by the United
States to any other person or entity shall contain -
(i) a covenant warranting that any response action or
corrective action found to be necessary after the date of such
sale or transfer shall be conducted by the United States; and
(ii) a clause granting the United States access to the
property in any case in which a response action or corrective
action is found to be necessary after such date at such
property, or such access is necessary to carry out a response
action or corrective action on adjoining property.
(E)(i) This paragraph applies to -
(I) real property owned by the United States and on which the
United States plans to terminate Federal Government operations,
other than real property described in subclause (II); and
(II) real property that is or has been used as a military
installation and on which the United States plans to close or
realign military operations pursuant to a base closure law.
(ii) For purposes of this paragraph, the term "base closure
law" includes the following:
(I) Title II of the Defense Authorization Amendments and Base
Closure and Realignment Act (Public Law 100-526; 10 U.S.C. 2687
note).
(II) The Defense Base Closure and Realignment Act of 1990
(part A of title XXIX of Public Law 101-510; 10 U.S.C. 2687
note).
(III) Section 2687 of title 10.
(IV) Any provision of law authorizing the closure or
realignment of a military installation enacted on or after
October 19, 1992.
(F) Nothing in this paragraph shall affect, preclude, or
otherwise impair the termination of Federal Government operations
on real property owned by the United States.
(5) Notification of States regarding certain leases
In the case of real property owned by the United States, on
which any hazardous substance or any petroleum product or its
derivatives (including aviation fuel and motor oil) was stored
for one year or more, known to have been released, or disposed
of, and on which the United States plans to terminate Federal
Government operations, the head of the department, agency, or
instrumentality of the United States with jurisdiction over the
property shall notify the State in which the property is located
of any lease entered into by the United States that will encumber
the property beyond the date of termination of operations on the
property. Such notification shall be made before entering into
the lease and shall include the length of the lease, the name of
person to whom the property is leased, and a description of the
uses that will be allowed under the lease of the property and
buildings and other structures on the property.
(i) Obligations under Solid Waste Disposal Act
Nothing in this section shall affect or impair the obligation of
any department, agency, or instrumentality of the United States to
comply with any requirement of the Solid Waste Disposal Act [42
U.S.C. 6901 et seq.] (including corrective action requirements).
(j) National security
(1) Site specific Presidential orders
The President may issue such orders regarding response actions
at any specified site or facility of the Department of Energy or
the Department of Defense as may be necessary to protect the
national security interests of the United States at that site or
facility. Such orders may include, where necessary to protect
such interests, an exemption from any requirement contained in
this subchapter or under title III of the Superfund Amendments
and Reauthorization Act of 1986 [42 U.S.C. 11001 et seq.] with
respect to the site or facility concerned. The President shall
notify the Congress within 30 days of the issuance of an order
under this paragraph providing for any such exemption. Such
notification shall include a statement of the reasons for the
granting of the exemption. An exemption under this paragraph
shall be for a specified period which may not exceed one year.
Additional exemptions may be granted, each upon the President's
issuance of a new order under this paragraph for the site or
facility concerned. Each such additional exemption shall be for a
specified period which may not exceed one year. It is the
intention of the Congress that whenever an exemption is issued
under this paragraph the response action shall proceed as
expeditiously as practicable. The Congress shall be notified
periodically of the progress of any response action with respect
to which an exemption has been issued under this paragraph. No
exemption shall be granted under this paragraph due to lack of
appropriation unless the President shall have specifically
requested such appropriation as a part of the budgetary process
and the Congress shall have failed to make available such
requested appropriation.
(2) Classified information
Notwithstanding any other provision of law, all requirements of
the Atomic Energy Act [42 U.S.C. 2011 et seq.] and all Executive
orders concerning the handling of restricted data and national
security information, including "need to know" requirements,
shall be applicable to any grant of access to classified
information under the provisions of this chapter or under title
III of the Superfund Amendments and Reauthorization Act of 1986
[42 U.S.C. 11001 et seq.].
-SOURCE-
(Pub. L. 96-510, title I, Sec. 120, as added Pub. L. 99-499, title
I, Sec. 120(a), Oct. 17, 1986, 100 Stat. 1666; amended Pub. L.
102-426, Secs. 3-5, Oct. 19, 1992, 106 Stat. 2175-2177; Pub. L.
104-106, div. B, title XXVIII, Sec. 2834, Feb. 10, 1996, 110 Stat.
559; Pub. L. 104-201, div. A, title III, Secs. 330, 331, 334, Sept.
23, 1996, 110 Stat. 2484, 2486.)
-REFTEXT-
REFERENCES IN TEXT
Section 2904(b) of such base closure law, referred to in subsec.
(h)(4)(C)(iii), means section 2904(b) of Pub. L. 101-510, which is
set out as a note under section 2687 of Title 10, Armed Forces.
The Solid Waste Disposal Act, referred to in subsec. (i), is
title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795,
which is classified generally to chapter 82 (Sec. 6901 et seq.) of
this title. For complete classification of this Act to the Code,
see Short Title note set out under section 6901 of this title and
Tables.
Title III of the Superfund Amendments and Reauthorization Act of
1986, referred to in subsec. (j), is title III of Pub. L. 99-499,
Oct. 17, 1986, 100 Stat. 1728, known as the Emergency Planning and
Community Right-To-Know Act of 1986, which is classified generally
to chapter 116 (Sec. 11001 et seq.) of this title. For complete
classification of title III to the Code, see Short Title note set
out under section 11001 of this title and Tables.
The Atomic Energy Act, referred to in subsec. (j)(2), probably
means the Atomic Energy Act of 1954, act Aug. 1, 1946, ch. 724, as
added by act Aug. 30, 1954, ch. 1073, Sec. 1, 68 Stat. 921, and
amended, which is classified generally to chapter 23 (Sec. 2011 et
seq.) of this title. For complete classification of this Act to the
Code, see Short Title note set out under section 2011 of this title
and Tables.
-MISC1-
AMENDMENTS
1996 - Subsec. (a)(4). Pub. L. 104-201, Sec. 334(b), inserted "or
facilities that are the subject of a deferral under subsection
(h)(3)(C) of this section" after "United States".
Subsec. (d). Pub. L. 104-201, Sec. 330(2)-(4), designated
existing provisions as par. (1), inserted par. heading, substituted
"The Administrator" for "Not later than 18 months after October 17,
1986, the Administrator", realigned margins of par. (1) and
subpars. (A) and (B), and substituted pars. (2) and (3) for "Such
criteria shall be applied in the same manner as the criteria are
applied to facilities which are owned or operated by other persons.
Evaluation and listing under this subsection shall be completed not
later than 30 months after October 17, 1986. Upon the receipt of a
petition from the Governor of any State, the Administrator shall
make such an evaluation of any facility included in the docket."
Pub. L. 104-201, Sec. 330(1), redesignated pars. (1) and (2) as
subpars. (A) and (B), respectively.
Subsec. (h)(3). Pub. L. 104-201, Sec. 334(a)(8), added subpar.
(C).
Pub. L. 104-201, Sec. 334(a)(6), (7), designated existing
provisions as subpar. (B), inserted heading, substituted "For
purposes of subparagraphs (A)(ii)(I) and (C)(iii)" for "For
purposes of subparagraph (B)(i)", and substituted "subparagraph
(A)(ii)" for "subparagraph (B)" in three places.
Pub. L. 104-201, Sec. 334(a)(1)-(5), designated first sentence as
subpar. (A), inserted heading, redesignated former subpar. (A) and
cls. (i) to (iii) of that subpar. as cl. (i) of subpar. (A) and
subcls. (I) to (III) of that cl., respectively, redesignated former
subpar. (B) and cls. (i) and (ii) of that subpar. as cl. (ii) of
subpar. (A) and subcls. (I) and (II) of that cl., respectively,
redesignated former subpar. (C) as cl. (iii) of subpar. (A), and
realigned margins of such cls. and subcls.
Pub. L. 104-106, Sec. 2834(2), which directed that par. (3) be
amended in the matter following subpar. (C) by adding at the end,
flush to the paragraph margin, the following, was executed by
inserting the following provision at the end of the concluding
provisions "The requirements of subparagraph (B) shall not apply in
any case in which the person or entity to whom the real property is
transferred is a potentially responsible party with respect to such
property. The requirements of subparagraph (B) shall not apply in
any case in which the transfer of the property occurs or has
occurred by means of a lease, without regard to whether the lessee
has agreed to purchase the property or whether the duration of the
lease is longer than 55 years. In the case of a lease entered into
after September 30, 1995, with respect to real property located at
an installation approved for closure or realignment under a base
closure law, the agency leasing the property, in consultation with
the Administrator, shall determine before leasing the property that
the property is suitable for lease, that the uses contemplated for
the lease are consistent with protection of human health and the
environment, and that there are adequate assurances that the United
States will take all remedial action referred to in subparagraph
(B) that has not been taken on the date of the lease."
Pub. L. 104-106, Sec. 2834(1), struck out first sentence of
concluding provisions which read as follows: "The requirements of
subparagraph (B) shall not apply in any case in which the person or
entity to whom the property is transferred is a potentially
responsible party with respect to such real property."
Subsec. (h)(4)(A). Pub. L. 104-201, Sec. 331, substituted "known
to have been released" for "stored for one year or more, known to
have been released,".
1992 - Subsec. (h)(3). Pub. L. 102-426, Sec. 4(a), inserted at
end "For purposes of subparagraph (B)(i), all remedial action
described in such subparagraph has been taken if the construction
and installation of an approved remedial design has been completed,
and the remedy has been demonstrated to the Administrator to be
operating properly and successfully. The carrying out of long-term
pumping and treating, or operation and maintenance, after the
remedy has been demonstrated to the Administrator to be operating
properly and successfully does not preclude the transfer of the
property."
Subsec. (h)(3)(C). Pub. L. 102-426, Sec. 4(b), added subpar. (C).
Subsec. (h)(4). Pub. L. 102-426, Sec. 3, added par. (4).
Subsec. (h)(5). Pub. L. 102-426, Sec. 5, added par. (5).
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions of law
requiring submittal to Congress of any annual, semiannual, or other
regular periodic report listed in House Document No. 103-7 (in
which a report required under subsec. (e)(5) of this section is
listed as the 5th item on page 151), see section 3003 of Pub. L.
104-66, as amended, and section 1(a)(4) [div. A, Sec. 1402(1)] of
Pub. L. 106-554, set out as notes under section 1113 of Title 31,
Money and Finance.
IDENTIFICATION OF UNCONTAMINATED PROPERTY AT INSTALLATIONS TO BE
CLOSED
Pub. L. 103-160, div. B, title XXIX, Sec. 2910, Nov. 30, 1993,
107 Stat. 1924, provided that: "The identification by the Secretary
of Defense required under section 120(h)(4)(A) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9620(h)(4)(A)), and the concurrence required under section
120(h)(4)(B) of such Act, shall be made not later than the earlier
of -
"(1) the date that is 9 months after the date of the submittal,
if any, to the transition coordinator for the installation
concerned of a specific use proposed for all or a portion of the
real property of the installation; or
"(2) the date specified in section 120(h)(4)(C)(iii) of such
Act."
CONGRESSIONAL FINDINGS
Section 2 of Pub. L. 102-426 provided that: "The Congress finds
the following:
"(1) The closure of certain Federal facilities is having
adverse effects on the economies of local communities by
eliminating jobs associated with such facilities, and delay in
remediation of environmental contamination of real property at
such facilities is preventing transfer and private development of
such property.
"(2) Each department, agency, or instrumentality of the United
States, in cooperation with local communities, should
expeditiously identify real property that offers the greatest
opportunity for reuse and redevelopment on each facility under
the jurisdiction of the department, agency, or instrumentality
where operations are terminating.
"(3) Remedial actions, including remedial investigations and
feasibility studies, and corrective actions at such Federal
facilities should be expedited in a manner to facilitate
environmental protection and the sale or transfer of such excess
real property for the purpose of mitigating adverse economic
effects on the surrounding community.
"(4) Each department, agency, or instrumentality of the United
States, in accordance with applicable law, should make available
without delay such excess real property.
"(5) In the case of any real property owned by the United
States and transferred to another person, the United States
Government should remain responsible for conducting any remedial
action or corrective action necessary to protect human health and
the environment with respect to any hazardous substance or
petroleum product or its derivatives, including aviation fuel and
motor oil, that was present on such real property at the time of
transfer."
APPLICABILITY
Section 120(b) of Pub. L. 99-499 provided that: "Section 120 of
CERCLA [42 U.S.C. 9620] shall not apply to any response action or
remedial action for which a plan is under development by the
Department of Energy on the date of enactment of this Act [Oct. 17,
1986] with respect to facilities -
"(1) owned or operated by the United States and subject to the
jurisdiction of such Department;
"(2) located in St. Charles and St. Louis counties, Missouri,
or the city of St. Louis, Missouri, and
"(3) published in the National Priorities List.
In preparing such plans, the Secretary of Energy shall consult with
the Administrator of the Environmental Protection Agency."
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9604, 9607, 9609, 9613,
9617, 9622, 9659 of this title; title 10 section 2701; title 50
section 2811.
-End-
-CITE-
42 USC Sec. 9621 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9621. Cleanup standards
-STATUTE-
(a) Selection of remedial action
The President shall select appropriate remedial actions
determined to be necessary to be carried out under section 9604 of
this title or secured under section 9606 of this title which are in
accordance with this section and, to the extent practicable, the
national contingency plan, and which provide for cost-effective
response. In evaluating the cost effectiveness of proposed
alternative remedial actions, the President shall take into account
the total short- and long-term costs of such actions, including the
costs of operation and maintenance for the entire period during
which such activities will be required.
(b) General rules
(1) Remedial actions in which treatment which permanently and
significantly reduces the volume, toxicity or mobility of the
hazardous substances, pollutants, and contaminants is a principal
element, are to be preferred over remedial actions not involving
such treatment. The offsite transport and disposal of hazardous
substances or contaminated materials without such treatment should
be the least favored alternative remedial action where practicable
treatment technologies are available. The President shall conduct
an assessment of permanent solutions and alternative treatment
technologies or resource recovery technologies that, in whole or in
part, will result in a permanent and significant decrease in the
toxicity, mobility, or volume of the hazardous substance,
pollutant, or contaminant. In making such assessment, the President
shall specifically address the long-term effectiveness of various
alternatives. In assessing alternative remedial actions, the
President shall, at a minimum, take into account:
(A) the long-term uncertainties associated with land disposal;
(B) the goals, objectives, and requirements of the Solid Waste
Disposal Act [42 U.S.C. 6901 et seq.];
(C) the persistence, toxicity, mobility, and propensity to
bioaccumulate of such hazardous substances and their
constituents;
(D) short- and long-term potential for adverse health effects
from human exposure;
(E) long-term maintenance costs;
(F) the potential for future remedial action costs if the
alternative remedial action in question were to fail; and
(G) the potential threat to human health and the environment
associated with excavation, transportation, and redisposal, or
containment.
The President shall select a remedial action that is protective of
human health and the environment, that is cost effective, and that
utilizes permanent solutions and alternative treatment technologies
or resource recovery technologies to the maximum extent
practicable. If the President selects a remedial action not
appropriate for a preference under this subsection, the President
shall publish an explanation as to why a remedial action involving
such reductions was not selected.
(2) The President may select an alternative remedial action
meeting the objectives of this subsection whether or not such
action has been achieved in practice at any other facility or site
that has similar characteristics. In making such a selection, the
President may take into account the degree of support for such
remedial action by parties interested in such site.
(c) Review
If the President selects a remedial action that results in any
hazardous substances, pollutants, or contaminants remaining at the
site, the President shall review such remedial action no less often
than each 5 years after the initiation of such remedial action to
assure that human health and the environment are being protected by
the remedial action being implemented. In addition, if upon such
review it is the judgment of the President that action is
appropriate at such site in accordance with section 9604 or 9606 of
this title, the President shall take or require such action. The
President shall report to the Congress a list of facilities for
which such review is required, the results of all such reviews, and
any actions taken as a result of such reviews.
(d) Degree of cleanup
(1) Remedial actions selected under this section or otherwise
required or agreed to by the President under this chapter shall
attain a degree of cleanup of hazardous substances, pollutants, and
contaminants released into the environment and of control of
further release at a minimum which assures protection of human
health and the environment. Such remedial actions shall be relevant
and appropriate under the circumstances presented by the release or
threatened release of such substance, pollutant, or contaminant.
(2)(A) With respect to any hazardous substance, pollutant or
contaminant that will remain onsite, if -
(i) any standard, requirement, criteria, or limitation under
any Federal environmental law, including, but not limited to, the
Toxic Substances Control Act [15 U.S.C. 2601 et seq.], the Safe
Drinking Water Act [42 U.S.C. 300f et seq.], the Clean Air Act
[42 U.S.C. 7401 et seq.], the Clean Water Act [33 U.S.C. 1251 et
seq.], the Marine Protection, Research and Sanctuaries Act [16
U.S.C. 1431 et seq., 1447 et seq., 33 U.S.C. 1401 et seq., 2801
et seq.], or the Solid Waste Disposal Act [42 U.S.C. 6901 et
seq.]; or
(ii) any promulgated standard, requirement, criteria, or
limitation under a State environmental or facility siting law
that is more stringent than any Federal standard, requirement,
criteria, or limitation, including each such State standard,
requirement, criteria, or limitation contained in a program
approved, authorized or delegated by the Administrator under a
statute cited in subparagraph (A), and that has been identified
to the President by the State in a timely manner,
is legally applicable to the hazardous substance or pollutant or
contaminant concerned or is relevant and appropriate under the
circumstances of the release or threatened release of such
hazardous substance or pollutant or contaminant, the remedial
action selected under section 9604 of this title or secured under
section 9606 of this title shall require, at the completion of the
remedial action, a level or standard of control for such hazardous
substance or pollutant or contaminant which at least attains such
legally applicable or relevant and appropriate standard,
requirement, criteria, or limitation. Such remedial action shall
require a level or standard of control which at least attains
Maximum Contaminant Level Goals established under the Safe Drinking
Water Act [42 U.S.C. 300f et seq.] and water quality criteria
established under section 304 or 303 of the Clean Water Act [33
U.S.C. 1314, 1313], where such goals or criteria are relevant and
appropriate under the circumstances of the release or threatened
release.
(B)(i) In determining whether or not any water quality criteria
under the Clean Water Act [33 U.S.C. 1251 et seq.] is relevant and
appropriate under the circumstances of the release or threatened
release, the President shall consider the designated or potential
use of the surface or groundwater, the environmental media
affected, the purposes for which such criteria were developed, and
the latest information available.
(ii) For the purposes of this section, a process for establishing
alternate concentration limits to those otherwise applicable for
hazardous constituents in groundwater under subparagraph (A) may
not be used to establish applicable standards under this paragraph
if the process assumes a point of human exposure beyond the
boundary of the facility, as defined at the conclusion of the
remedial investigation and feasibility study, except where -
(I) there are known and projected points of entry of such
groundwater into surface water; and
(II) on the basis of measurements or projections, there is or
will be no statistically significant increase of such
constituents from such groundwater in such surface water at the
point of entry or at any point where there is reason to believe
accumulation of constituents may occur downstream; and
(III) the remedial action includes enforceable measures that
will preclude human exposure to the contaminated groundwater at
any point between the facility boundary and all known and
projected points of entry of such groundwater into surface water
then the assumed point of human exposure may be at such known and
projected points of entry.
(C)(i) Clause (ii) of this subparagraph shall be applicable only
in cases where, due to the President's selection, in compliance
with subsection (b)(1) of this section, of a proposed remedial
action which does not permanently and significantly reduce the
volume, toxicity, or mobility of hazardous substances, pollutants,
or contaminants, the proposed disposition of waste generated by or
associated with the remedial action selected by the President is
land disposal in a State referred to in clause (ii).
(ii) Except as provided in clauses (iii) and (iv), a State
standard, requirement, criteria, or limitation (including any State
siting standard or requirement) which could effectively result in
the statewide prohibition of land disposal of hazardous substances,
pollutants, or contaminants shall not apply.
(iii) Any State standard, requirement, criteria, or limitation
referred to in clause (ii) shall apply where each of the following
conditions is met:
(I) The State standard, requirement, criteria, or limitation is
of general applicability and was adopted by formal means.
(II) The State standard, requirement, criteria, or limitation
was adopted on the basis of hydrologic, geologic, or other
relevant considerations and was not adopted for the purpose of
precluding onsite remedial actions or other land disposal for
reasons unrelated to protection of human health and the
environment.
(III) The State arranges for, and assures payment of the
incremental costs of utilizing, a facility for disposition of the
hazardous substances, pollutants, or contaminants concerned.
(iv) Where the remedial action selected by the President does not
conform to a State standard and the State has initiated a law suit
against the Environmental Protection Agency prior to May 1, 1986,
to seek to have the remedial action conform to such standard, the
President shall conform the remedial action to the State standard.
The State shall assure the availability of an offsite facility for
such remedial action.
(3) In the case of any removal or remedial action involving the
transfer of any hazardous substance or pollutant or contaminant
offsite, such hazardous substance or pollutant or contaminant shall
only be transferred to a facility which is operating in compliance
with section 3004 and 3005 of the Solid Waste Disposal Act [42
U.S.C. 6924, 6925] (or, where applicable, in compliance with the
Toxic Substances Control Act [15 U.S.C. 2601 et seq.] or other
applicable Federal law) and all applicable State requirements. Such
substance or pollutant or contaminant may be transferred to a land
disposal facility only if the President determines that both of the
following requirements are met:
(A) The unit to which the hazardous substance or pollutant or
contaminant is transferred is not releasing any hazardous waste,
or constituent thereof, into the groundwater or surface water or
soil.
(B) All such releases from other units at the facility are
being controlled by a corrective action program approved by the
Administrator under subtitle C of the Solid Waste Disposal Act
[42 U.S.C. 6921 et seq.].
The President shall notify the owner or operator of such facility
of determinations under this paragraph.
(4) The President may select a remedial action meeting the
requirements of paragraph (1) that does not attain a level or
standard of control at least equivalent to a legally applicable or
relevant and appropriate standard, requirement, criteria, or
limitation as required by paragraph (2) (including subparagraph (B)
thereof), if the President finds that -
(A) the remedial action selected is only part of a total
remedial action that will attain such level or standard of
control when completed;
(B) compliance with such requirement at that facility will
result in greater risk to human health and the environment than
alternative options;
(C) compliance with such requirements is technically
impracticable from an engineering perspective;
(D) the remedial action selected will attain a standard of
performance that is equivalent to that required under the
otherwise applicable standard, requirement, criteria, or
limitation, through use of another method or approach;
(E) with respect to a State standard, requirement, criteria, or
limitation, the State has not consistently applied (or
demonstrated the intention to consistently apply) the standard,
requirement, criteria, or limitation in similar circumstances at
other remedial actions within the State; or
(F) in the case of a remedial action to be undertaken solely
under section 9604 of this title using the Fund, selection of a
remedial action that attains such level or standard of control
will not provide a balance between the need for protection of
public health and welfare and the environment at the facility
under consideration, and the availability of amounts from the
Fund to respond to other sites which present or may present a
threat to public health or welfare or the environment, taking
into consideration the relative immediacy of such threats.
The President shall publish such findings, together with an
explanation and appropriate documentation.
(e) Permits and enforcement
(1) No Federal, State, or local permit shall be required for the
portion of any removal or remedial action conducted entirely
onsite, where such remedial action is selected and carried out in
compliance with this section.
(2) A State may enforce any Federal or State standard,
requirement, criteria, or limitation to which the remedial action
is required to conform under this chapter in the United States
district court for the district in which the facility is located.
Any consent decree shall require the parties to attempt
expeditiously to resolve disagreements concerning implementation of
the remedial action informally with the appropriate Federal and
State agencies. Where the parties agree, the consent decree may
provide for administrative enforcement. Each consent decree shall
also contain stipulated penalties for violations of the decree in
an amount not to exceed $25,000 per day, which may be enforced by
either the President or the State. Such stipulated penalties shall
not be construed to impair or affect the authority of the court to
order compliance with the specific terms of any such decree.
(f) State involvement
(1) The President shall promulgate regulations providing for
substantial and meaningful involvement by each State in initiation,
development, and selection of remedial actions to be undertaken in
that State. The regulations, at a minimum, shall include each of
the following:
(A) State involvement in decisions whether to perform a
preliminary assessment and site inspection.
(B) Allocation of responsibility for hazard ranking system
scoring.
(C) State concurrence in deleting sites from the National
Priorities List.
(D) State participation in the long-term planning process for
all remedial sites within the State.
(E) A reasonable opportunity for States to review and comment
on each of the following:
(i) The remedial investigation and feasibility study and all
data and technical documents leading to its issuance.
(ii) The planned remedial action identified in the remedial
investigation and feasibility study.
(iii) The engineering design following selection of the final
remedial action.
(iv) Other technical data and reports relating to
implementation of the remedy.
(v) Any proposed finding or decision by the President to
exercise the authority of subsection (d)(4) of this section.
(F) Notice to the State of negotiations with potentially
responsible parties regarding the scope of any response action at
a facility in the State and an opportunity to participate in such
negotiations and, subject to paragraph (2), be a party to any
settlement.
(G) Notice to the State and an opportunity to comment on the
President's proposed plan for remedial action as well as on
alternative plans under consideration. The President's proposed
decision regarding the selection of remedial action shall be
accompanied by a response to the comments submitted by the State,
including an explanation regarding any decision under subsection
(d)(4) of this section on compliance with promulgated State
standards. A copy of such response shall also be provided to the
State.
(H) Prompt notice and explanation of each proposed action to
the State in which the facility is located.
Prior to the promulgation of such regulations, the President shall
provide notice to the State of negotiations with potentially
responsible parties regarding the scope of any response action at a
facility in the State, and such State may participate in such
negotiations and, subject to paragraph (2), any settlements.
(2)(A) This paragraph shall apply to remedial actions secured
under section 9606 of this title. At least 30 days prior to the
entering of any consent decree, if the President proposes to select
a remedial action that does not attain a legally applicable or
relevant and appropriate standard, requirement, criteria, or
limitation, under the authority of subsection (d)(4) of this
section, the President shall provide an opportunity for the State
to concur or not concur in such selection. If the State concurs,
the State may become a signatory to the consent decree.
(B) If the State does not concur in such selection, and the State
desires to have the remedial action conform to such standard,
requirement, criteria, or limitation, the State shall intervene in
the action under section 9606 of this title before entry of the
consent decree, to seek to have the remedial action so conform.
Such intervention shall be a matter of right. The remedial action
shall conform to such standard, requirement, criteria, or
limitation if the State establishes, on the administrative record,
that the finding of the President was not supported by substantial
evidence. If the court determines that the remedial action shall
conform to such standard, requirement, criteria, or limitation, the
remedial action shall be so modified and the State may become a
signatory to the decree. If the court determines that the remedial
action need not conform to such standard, requirement, criteria, or
limitation, and the State pays or assures the payment of the
additional costs attributable to meeting such standard,
requirement, criteria, or limitation, the remedial action shall be
so modified and the State shall become a signatory to the decree.
(C) The President may conclude settlement negotiations with
potentially responsible parties without State concurrence.
(3)(A) This paragraph shall apply to remedial actions at
facilities owned or operated by a department, agency, or
instrumentality of the United States. At least 30 days prior to the
publication of the President's final remedial action plan, if the
President proposes to select a remedial action that does not attain
a legally applicable or relevant and appropriate standard,
requirement, criteria, or limitation, under the authority of
subsection (d)(4) of this section, the President shall provide an
opportunity for the State to concur or not concur in such
selection. If the State concurs, or does not act within 30 days,
the remedial action may proceed.
(B) If the State does not concur in such selection as provided in
subparagraph (A), and desires to have the remedial action conform
to such standard, requirement, criteria, or limitation, the State
may maintain an action as follows:
(i) If the President has notified the State of selection of
such a remedial action, the State may bring an action within 30
days of such notification for the sole purpose of determining
whether the finding of the President is supported by substantial
evidence. Such action shall be brought in the United States
district court for the district in which the facility is located.
(ii) If the State establishes, on the administrative record,
that the President's finding is not supported by substantial
evidence, the remedial action shall be modified to conform to
such standard, requirement, criteria, or limitation.
(iii) If the State fails to establish that the President's
finding was not supported by substantial evidence and if the
State pays, within 60 days of judgment, the additional costs
attributable to meeting such standard, requirement, criteria, or
limitation, the remedial action shall be selected to meet such
standard, requirement, criteria, or limitation. If the State
fails to pay within 60 days, the remedial action selected by the
President shall proceed through completion.
(C) Nothing in this section precludes, and the court shall not
enjoin, the Federal agency from taking any remedial action
unrelated to or not inconsistent with such standard, requirement,
criteria, or limitation.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 121, as added Pub. L. 99-499, title
I, Sec. 121(a), Oct. 17, 1986, 100 Stat. 1672.)
-REFTEXT-
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsecs. (b)(1)(B)
and (d)(2)(A)(i), (3)(B), is title II of Pub. L. 89-272, Oct. 20,
1965, 79 Stat. 997, as amended generally by Pub. L. 94-580, Sec. 2,
Oct. 21, 1976, 90 Stat. 2795, which is classified generally to
chapter 82 (Sec. 6901 et seq.) of this title. Subtitle C of the
Solid Waste Disposal Act is classified generally to subchapter III
(Sec. 6921 et seq.) of chapter 82 of this title. For complete
classification of this Act to the Code, see Short Title note set
out under section 6901 of this title and Tables.
The Toxic Substances Control Act, referred to in subsec.
(d)(2)(A)(i), (3), is Pub. L. 94-469, Oct. 11, 1976, 90 Stat. 2003,
as amended, which is classified generally to chapter 53 (Sec. 2601
et seq.) of Title 15, Commerce and Trade. For complete
classification of this Act to the Code, see Short Title note set
out under section 2601 of Title 15 and Tables.
The Safe Drinking Water Act, referred to in subsec. (d)(2)(A), is
title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L.
93-523, Sec. 2(a), 88 Stat. 1660, as amended, which is classified
generally to subchapter XII (Sec. 300f et seq.) of chapter 6A of
this title. For complete classification of this Act to the Code,
see Short Title note set out under section 201 of this title and
Tables.
The Clean Air Act, referred to in subsec. (d)(2)(A)(i), is act
July 14, 1955, ch. 360, 69 Stat. 322, as amended, which is
classified generally to chapter 85 (Sec. 7401 et seq.) of this
title. For complete classification of this Act to the Code, see
Short Title note set out under section 7401 of this title and
Tables.
The Clean Water Act, referred to in subsec. (d)(2)(A)(i), (B)(i),
is act June 30, 1948, ch. 758, as amended generally by Pub. L.
92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 816, also known as the
Federal Water Pollution Control Act, which is classified generally
to chapter 26 (Sec. 1251 et seq.) of Title 33, Navigation and
Navigable Waters. For complete classification of this Act to the
Code, see Short Title note set out under section 1251 of Title 33
and Tables.
The Marine Protection, Research and Sanctuaries Act, referred to
in subsec. (d)(2)(A)(i), probably means the Marine Protection,
Research and Sanctuaries Act of 1972, Pub. L. 92-532, Oct. 23,
1972, 86 Stat. 1052, as amended, which enacted chapters 32 (Sec.
1431 et seq.) and 32A (Sec. 1447 et seq.) of Title 16,
Conservation, and chapters 27 (Sec. 1401 et seq.) and 41 (Sec. 2801
et seq.) of Title 33. For complete classification of this Act to
the Code, see Short Title note set out under section 1401 of Title
33 and Tables.
-MISC1-
EFFECTIVE DATE
Section 121(b) of Pub. L. 99-499 provided that: "With respect to
section 121 of CERCLA [this section], as added by this section -
"(1) The requirements of section 121 of CERCLA shall not apply
to any remedial action for which the Record of Decision
(hereinafter in this section referred to as the 'ROD') was
signed, or the consent decree was lodged, before date of
enactment [Oct. 17, 1986].
"(2) If the ROD was signed, or the consent decree lodged,
within the 30-day period immediately following enactment of the
Act [Oct. 17, 1986], the Administrator shall certify in writing
that the portion of the remedial action covered by the ROD or
consent decree complies to the maximum extent practicable with
section 121 of CERCLA.
Any ROD signed before enactment of this Act [Oct. 17, 1986] and
reopened after enactment of this Act to modify or supplement the
selection of remedy shall be subject to the requirements of section
121 of CERCLA."
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions of law
requiring submittal to Congress of any annual, semiannual, or other
regular periodic report listed in House Document No. 103-7 (in
which the report under subsec. (c) of this section appears to be
the report listed as the 15th item on page 20), see section 3003 of
Pub. L. 104-66, as amended, set out as a note under section 1113 of
Title 31, Money and Finance.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9604, 9613, 9617, 9620 of
this title.
-End-
-CITE-
42 USC Sec. 9622 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9622. Settlements
-STATUTE-
(a) Authority to enter into agreements
The President, in his discretion, may enter into an agreement
with any person (including the owner or operator of the facility
from which a release or substantial threat of release emanates, or
any other potentially responsible person), to perform any response
action (including any action described in section 9604(b) of this
title) if the President determines that such action will be done
properly by such person. Whenever practicable and in the public
interest, as determined by the President, the President shall act
to facilitate agreements under this section that are in the public
interest and consistent with the National Contingency Plan in order
to expedite effective remedial actions and minimize litigation. If
the President decides not to use the procedures in this section,
the President shall notify in writing potentially responsible
parties at the facility of such decision and the reasons why use of
the procedures is inappropriate. A decision of the President to use
or not to use the procedures in this section is not subject to
judicial review.
(b) Agreements with potentially responsible parties
(1) Mixed funding
An agreement under this section may provide that the President
will reimburse the parties to the agreement from the Fund, with
interest, for certain costs of actions under the agreement that
the parties have agreed to perform but which the President has
agreed to finance. In any case in which the President provides
such reimbursement, the President shall make all reasonable
efforts to recover the amount of such reimbursement under section
9607 of this title or under other relevant authorities.
(2) Reviewability
The President's decisions regarding the availability of fund
financing under this subsection shall not be subject to judicial
review under subsection (d) of this section.
(3) Retention of funds
If, as part of any agreement, the President will be carrying
out any action and the parties will be paying amounts to the
President, the President may, notwithstanding any other provision
of law, retain and use such amounts for purposes of carrying out
the agreement.
(4) Future obligation of Fund
In the case of a completed remedial action pursuant to an
agreement described in paragraph (1), the Fund shall be subject
to an obligation for subsequent remedial actions at the same
facility but only to the extent that such subsequent actions are
necessary by reason of the failure of the original remedial
action. Such obligation shall be in a proportion equal to, but
not exceeding, the proportion contributed by the Fund for the
original remedial action. The Fund's obligation for such future
remedial action may be met through Fund expenditures or through
payment, following settlement or enforcement action, by parties
who were not signatories to the original agreement.
(c) Effect of agreement
(1) Liability
Whenever the President has entered into an agreement under this
section, the liability to the United States under this chapter of
each party to the agreement, including any future liability to
the United States, arising from the release or threatened release
that is the subject of the agreement shall be limited as provided
in the agreement pursuant to a covenant not to sue in accordance
with subsection (f) of this section. A covenant not to sue may
provide that future liability to the United States of a settling
potentially responsible party under the agreement may be limited
to the same proportion as that established in the original
settlement agreement. Nothing in this section shall limit or
otherwise affect the authority of any court to review in the
consent decree process under subsection (d) of this section any
covenant not to sue contained in an agreement under this section.
In determining the extent to which the liability of parties to an
agreement shall be limited pursuant to a covenant not to sue, the
President shall be guided by the principle that a more complete
covenant not to sue shall be provided for a more permanent remedy
undertaken by such parties.
(2) Actions against other persons
If an agreement has been entered into under this section, the
President may take any action under section 9606 of this title
against any person who is not a party to the agreement, once the
period for submitting a proposal under subsection (e)(2)(B) of
this section has expired. Nothing in this section shall be
construed to affect either of the following:
(A) The liability of any person under section 9606 or 9607 of
this title with respect to any costs or damages which are not
included in the agreement.
(B) The authority of the President to maintain an action
under this chapter against any person who is not a party to the
agreement.
(d) Enforcement
(1) Cleanup agreements
(A) Consent decree
Whenever the President enters into an agreement under this
section with any potentially responsible party with respect to
remedial action under section 9606 of this title, following
approval of the agreement by the Attorney General, except as
otherwise provided in the case of certain administrative
settlements referred to in subsection (g) of this section, the
agreement shall be entered in the appropriate United States
district court as a consent decree. The President need not make
any finding regarding an imminent and substantial endangerment
to the public health or the environment in connection with any
such agreement or consent decree.
(B) Effect
The entry of any consent decree under this subsection shall
not be construed to be an acknowledgment by the parties that
the release or threatened release concerned constitutes an
imminent and substantial endangerment to the public health or
welfare or the environment. Except as otherwise provided in the
Federal Rules of Evidence, the participation by any party in
the process under this section shall not be considered an
admission of liability for any purpose, and the fact of such
participation shall not be admissible in any judicial or
administrative proceeding, including a subsequent proceeding
under this section.
(C) Structure
The President may fashion a consent decree so that the
entering of such decree and compliance with such decree or with
any determination or agreement made pursuant to this section
shall not be considered an admission of liability for any
purpose.
(2) Public participation
(A) Filing of proposed judgment
At least 30 days before a final judgment is entered under
paragraph (1), the proposed judgment shall be filed with the
court.
(B) Opportunity for comment
The Attorney General shall provide an opportunity to persons
who are not named as parties to the action to comment on the
proposed judgment before its entry by the court as a final
judgment. The Attorney General shall consider, and file with
the court, any written comments, views, or allegations relating
to the proposed judgment. The Attorney General may withdraw or
withhold its consent to the proposed judgment if the comments,
views, and allegations concerning the judgment disclose facts
or considerations which indicate that the proposed judgment is
inappropriate, improper, or inadequate.
(3) 9604(b) agreements
Whenever the President enters into an agreement under this
section with any potentially responsible party with respect to
action under section 9604(b) of this title, the President shall
issue an order or enter into a decree setting forth the
obligations of such party. The United States district court for
the district in which the release or threatened release occurs
may enforce such order or decree.
(e) Special notice procedures
(1) Notice
Whenever the President determines that a period of negotiation
under this subsection would facilitate an agreement with
potentially responsible parties for taking response action
(including any action described in section 9604(b) of this title)
and would expedite remedial action, the President shall so notify
all such parties and shall provide them with information
concerning each of the following:
(A) The names and addresses of potentially responsible
parties (including owners and operators and other persons
referred to in section 9607(a) of this title), to the extent
such information is available.
(B) To the extent such information is available, the volume
and nature of substances contributed by each potentially
responsible party identified at the facility.
(C) A ranking by volume of the substances at the facility, to
the extent such information is available.
The President shall make the information referred to in this
paragraph available in advance of notice under this paragraph
upon the request of a potentially responsible party in accordance
with procedures provided by the President. The provisions of
subsection (e) of section 9604 of this title regarding protection
of confidential information apply to information provided under
this paragraph. Disclosure of information generated by the
President under this section to persons other than the Congress,
or any duly authorized Committee thereof, is subject to other
privileges or protections provided by law, including (but not
limited to) those applicable to attorney work product. Nothing
contained in this paragraph or in other provisions of this
chapter shall be construed, interpreted, or applied to diminish
the required disclosure of information under other provisions of
this or other Federal or State laws.
(2) Negotiation
(A) Moratorium
Except as provided in this subsection, the President may not
commence action under section 9604(a) of this title or take any
action under section 9606 of this title for 120 days after
providing notice and information under this subsection with
respect to such action. Except as provided in this subsection,
the President may not commence a remedial investigation and
feasibility study under section 9604(b) of this title for 90
days after providing notice and information under this
subsection with respect to such action. The President may
commence any additional studies or investigations authorized
under section 9604(b) of this title, including remedial design,
during the negotiation period.
(B) Proposals
Persons receiving notice and information under paragraph (1)
of this subsection with respect to action under section 9606 of
this title shall have 60 days from the date of receipt of such
notice to make a proposal to the President for undertaking or
financing the action under section 9606 of this title. Persons
receiving notice and information under paragraph (1) of this
subsection with respect to action under section 9604(b) of this
title shall have 60 days from the date of receipt of such
notice to make a proposal to the President for undertaking or
financing the action under section 9604(b) of this title.
(C) Additional parties
If an additional potentially responsible party is identified
during the negotiation period or after an agreement has been
entered into under this subsection concerning a release or
threatened release, the President may bring the additional
party into the negotiation or enter into a separate agreement
with such party.
(3) Preliminary allocation of responsibility
(A) In general
The President shall develop guidelines for preparing
nonbinding preliminary allocations of responsibility. In
developing these guidelines the President may include such
factors as the President considers relevant, such as: volume,
toxicity, mobility, strength of evidence, ability to pay,
litigative risks, public interest considerations, precedential
value, and inequities and aggravating factors. When it would
expedite settlements under this section and remedial action,
the President may, after completion of the remedial
investigation and feasibility study, provide a nonbinding
preliminary allocation of responsibility which allocates
percentages of the total cost of response among potentially
responsible parties at the facility.
(B) Collection of information
To collect information necessary or appropriate for
performing the allocation under subparagraph (A) or for
otherwise implementing this section, the President may by
subpoena require the attendance and testimony of witnesses and
the production of reports, papers, documents, answers to
questions, and other information that the President deems
necessary. Witnesses shall be paid the same fees and mileage
that are paid witnesses in the courts of the United States. In
the event of contumacy or failure or refusal of any person to
obey any such subpoena, any district court of the United States
in which venue is proper shall have jurisdiction to order any
such person to comply with such subpoena. Any failure to obey
such an order of the court is punishable by the court as a
contempt thereof.
(C) Effect
The nonbinding preliminary allocation of responsibility shall
not be admissible as evidence in any proceeding, and no court
shall have jurisdiction to review the nonbinding preliminary
allocation of responsibility. The nonbinding preliminary
allocation of responsibility shall not constitute an
apportionment or other statement on the divisibility of harm or
causation.
(D) Costs
The costs incurred by the President in producing the
nonbinding preliminary allocation of responsibility shall be
reimbursed by the potentially responsible parties whose offer
is accepted by the President. Where an offer under this section
is not accepted, such costs shall be considered costs of
response.
(E) Decision to reject offer
Where the President, in his discretion, has provided a
nonbinding preliminary allocation of responsibility and the
potentially responsible parties have made a substantial offer
providing for response to the President which he rejects, the
reasons for the rejection shall be provided in a written
explanation. The President's decision to reject such an offer
shall not be subject to judicial review.
(4) Failure to propose
If the President determines that a good faith proposal for
undertaking or financing action under section 9606 of this title
has not been submitted within 60 days of the provision of notice
pursuant to this subsection, the President may thereafter
commence action under section 9604(a) of this title or take an
action against any person under section 9606 of this title. If
the President determines that a good faith proposal for
undertaking or financing action under section 9604(b) of this
title has not been submitted within 60 days after the provision
of notice pursuant to this subsection, the President may
thereafter commence action under section 9604(b) of this title.
(5) Significant threats
Nothing in this subsection shall limit the President's
authority to undertake response or enforcement action regarding a
significant threat to public health or the environment within the
negotiation period established by this subsection.
(6) Inconsistent response action
When either the President, or a potentially responsible party
pursuant to an administrative order or consent decree under this
chapter, has initiated a remedial investigation and feasibility
study for a particular facility under this chapter, no
potentially responsible party may undertake any remedial action
at the facility unless such remedial action has been authorized
by the President.
(f) Covenant not to sue
(1) Discretionary covenants
The President may, in his discretion, provide any person with a
covenant not to sue concerning any liability to the United States
under this chapter, including future liability, resulting from a
release or threatened release of a hazardous substance addressed
by a remedial action, whether that action is onsite or offsite,
if each of the following conditions is met:
(A) The covenant not to sue is in the public interest.
(B) The covenant not to sue would expedite response action
consistent with the National Contingency Plan under section
9605 of this title.
(C) The person is in full compliance with a consent decree
under section 9606 of this title (including a consent decree
entered into in accordance with this section) for response to
the release or threatened release concerned.
(D) The response action has been approved by the President.
(2) Special covenants not to sue
In the case of any person to whom the President is authorized
under paragraph (1) of this subsection to provide a covenant not
to sue, for the portion of remedial action -
(A) which involves the transport and secure disposition
offsite of hazardous substances in a facility meeting the
requirements of sections 6924(c), (d), (e), (f), (g), (m), (o),
(p), (u), and (v) and 6925(c) of this title, where the
President has rejected a proposed remedial action that is
consistent with the National Contingency Plan that does not
include such offsite disposition and has thereafter required
offsite disposition; or
(B) which involves the treatment of hazardous substances so
as to destroy, eliminate, or permanently immobilize the
hazardous constituents of such substances, such that, in the
judgment of the President, the substances no longer present any
current or currently foreseeable future significant risk to
public health, welfare or the environment, no byproduct of the
treatment or destruction process presents any significant
hazard to public health, welfare or the environment, and all
byproducts are themselves treated, destroyed, or contained in a
manner which assures that such byproducts do not present any
current or currently foreseeable future significant risk to
public health, welfare or the environment,
the President shall provide such person with a covenant not to
sue with respect to future liability to the United States under
this chapter for a future release or threatened release of
hazardous substances from such facility, and a person provided
such covenant not to sue shall not be liable to the United States
under section 9606 or 9607 of this title with respect to such
release or threatened release at a future time.
(3) Requirement that remedial action be completed
A covenant not to sue concerning future liability to the United
States shall not take effect until the President certifies that
remedial action has been completed in accordance with the
requirements of this chapter at the facility that is the subject
of such covenant.
(4) Factors
In assessing the appropriateness of a covenant not to sue under
paragraph (1) and any condition to be included in a covenant not
to sue under paragraph (1) or (2), the President shall consider
whether the covenant or condition is in the public interest on
the basis of such factors as the following:
(A) The effectiveness and reliability of the remedy, in light
of the other alternative remedies considered for the facility
concerned.
(B) The nature of the risks remaining at the facility.
(C) The extent to which performance standards are included in
the order or decree.
(D) The extent to which the response action provides a
complete remedy for the facility, including a reduction in the
hazardous nature of the substances at the facility.
(E) The extent to which the technology used in the response
action is demonstrated to be effective.
(F) Whether the Fund or other sources of funding would be
available for any additional remedial actions that might
eventually be necessary at the facility.
(G) Whether the remedial action will be carried out, in whole
or in significant part, by the responsible parties themselves.
(5) Satisfactory performance
Any covenant not to sue under this subsection shall be subject
to the satisfactory performance by such party of its obligations
under the agreement concerned.
(6) Additional condition for future liability
(A) Except for the portion of the remedial action which is
subject to a covenant not to sue under paragraph (2) or under
subsection (g) of this section (relating to de minimis
settlements), a covenant not to sue a person concerning future
liability to the United States shall include an exception to the
covenant that allows the President to sue such person concerning
future liability resulting from the release or threatened release
that is the subject of the covenant where such liability arises
out of conditions which are unknown at the time the President
certifies under paragraph (3) that remedial action has been
completed at the facility concerned.
(B) In extraordinary circumstances, the President may
determine, after assessment of relevant factors such as those
referred to in paragraph (4) and volume, toxicity, mobility,
strength of evidence, ability to pay, litigative risks, public
interest considerations, precedential value, and inequities and
aggravating factors, not to include the exception referred to in
subparagraph (A) if other terms, conditions, or requirements of
the agreement containing the covenant not to sue are sufficient
to provide all reasonable assurances that public health and the
environment will be protected from any future releases at or from
the facility.
(C) The President is authorized to include any provisions
allowing future enforcement action under section 9606 or 9607 of
this title that in the discretion of the President are necessary
and appropriate to assure protection of public health, welfare,
and the environment.
(g) De minimis settlements
(1) Expedited final settlement
Whenever practicable and in the public interest, as determined
by the President, the President shall as promptly as possible
reach a final settlement with a potentially responsible party in
an administrative or civil action under section 9606 or 9607 of
this title if such settlement involves only a minor portion of
the response costs at the facility concerned and, in the judgment
of the President, the conditions in either of the following
subparagraph (A) or (B) are met:
(A) Both of the following are minimal in comparison to other
hazardous substances at the facility:
(i) The amount of the hazardous substances contributed by
that party to the facility.
(ii) The toxic or other hazardous effects of the substances
contributed by that party to the facility.
(B) The potentially responsible party -
(i) is the owner of the real property on or in which the
facility is located;
(ii) did not conduct or permit the generation,
transportation, storage, treatment, or disposal of any
hazardous substance at the facility; and
(iii) did not contribute to the release or threat of
release of a hazardous substance at the facility through any
action or omission.
This subparagraph (B) does not apply if the potentially
responsible party purchased the real property with actual or
constructive knowledge that the property was used for the
generation, transportation, storage, treatment, or disposal of
any hazardous substance.
(2) Covenant not to sue
The President may provide a covenant not to sue with respect to
the facility concerned to any party who has entered into a
settlement under this subsection unless such a covenant would be
inconsistent with the public interest as determined under
subsection (f) of this section.
(3) Expedited agreement
The President shall reach any such settlement or grant any such
covenant not to sue as soon as possible after the President has
available the information necessary to reach such a settlement or
grant such a covenant.
(4) Consent decree or administrative order
A settlement under this subsection shall be entered as a
consent decree or embodied in an administrative order setting
forth the terms of the settlement. In the case of any facility
where the total response costs exceed $500,000 (excluding
interest), if the settlement is embodied as an administrative
order, the order may be issued only with the prior written
approval of the Attorney General. If the Attorney General or his
designee has not approved or disapproved the order within 30 days
of this referral, the order shall be deemed to be approved unless
the Attorney General and the Administrator have agreed to extend
the time. The district court for the district in which the
release or threatened release occurs may enforce any such
administrative order.
(5) Effect of agreement
A party who has resolved its liability to the United States
under this subsection shall not be liable for claims for
contribution regarding matters addressed in the settlement. Such
settlement does not discharge any of the other potentially
responsible parties unless its terms so provide, but it reduces
the potential liability of the others by the amount of the
settlement.
(6) Settlements with other potentially responsible parties
Nothing in this subsection shall be construed to affect the
authority of the President to reach settlements with other
potentially responsible parties under this chapter.
(7) Reduction in settlement amount based on limited ability to
pay
(A) In general
The condition for settlement under this paragraph is that the
potentially responsible party is a person who demonstrates to
the President an inability or a limited ability to pay response
costs.
(B) Considerations
In determining whether or not a demonstration is made under
subparagraph (A) by a person, the President shall take into
consideration the ability of the person to pay response costs
and still maintain its basic business operations, including
consideration of the overall financial condition of the person
and demonstrable constraints on the ability of the person to
raise revenues.
(C) Information
A person requesting settlement under this paragraph shall
promptly provide the President with all relevant information
needed to determine the ability of the person to pay response
costs.
(D) Alternative payment methods
If the President determines that a person is unable to pay
its total settlement amount at the time of settlement, the
President shall consider such alternative payment methods as
may be necessary or appropriate.
(8) Additional conditions for expedited settlements
(A) Waiver of claims
The President shall require, as a condition for settlement
under this subsection, that a potentially responsible party
waive all of the claims (including a claim for contribution
under this chapter) that the party may have against other
potentially responsible parties for response costs incurred
with respect to the facility, unless the President determines
that requiring a waiver would be unjust.
(B) Failure to comply
The President may decline to offer a settlement to a
potentially responsible party under this subsection if the
President determines that the potentially responsible party has
failed to comply with any request for access or information or
an administrative subpoena issued by the President under this
chapter or has impeded or is impeding, through action or
inaction, the performance of a response action with respect to
the facility.
(C) Responsibility to provide information and access
A potentially responsible party that enters into a settlement
under this subsection shall not be relieved of the
responsibility to provide any information or access requested
in accordance with subsection (e)(3)(B) of this section or
section 9604(e) of this title.
(9) Basis of determination
If the President determines that a potentially responsible
party is not eligible for settlement under this subsection, the
President shall provide the reasons for the determination in
writing to the potentially responsible party that requested a
settlement under this subsection.
(10) Notification
As soon as practicable after receipt of sufficient information
to make a determination, the President shall notify any person
that the President determines is eligible under paragraph (1) of
the person's eligibility for an expedited settlement.
(11) No judicial review
A determination by the President under paragraph (7), (8), (9),
or (10) shall not be subject to judicial review.
(12) Notice of settlement
After a settlement under this subsection becomes final with
respect to a facility, the President shall promptly notify
potentially responsible parties at the facility that have not
resolved their liability to the United States of the settlement.
(h) Cost recovery settlement authority
(1) Authority to settle
The head of any department or agency with authority to
undertake a response action under this chapter pursuant to the
national contingency plan may consider, compromise, and settle a
claim under section 9607 of this title for costs incurred by the
United States Government if the claim has not been referred to
the Department of Justice for further action. In the case of any
facility where the total response costs exceed $500,000
(excluding interest), any claim referred to in the preceding
sentence may be compromised and settled only with the prior
written approval of the Attorney General.
(2) Use of arbitration
Arbitration in accordance with regulations promulgated under
this subsection may be used as a method of settling claims of the
United States where the total response costs for the facility
concerned do not exceed $500,000 (excluding interest). After
consultation with the Attorney General, the department or agency
head may establish and publish regulations for the use of
arbitration or settlement under this subsection.
(3) Recovery of claims
If any person fails to pay a claim that has been settled under
this subsection, the department or agency head shall request the
Attorney General to bring a civil action in an appropriate
district court to recover the amount of such claim, plus costs,
attorneys' fees, and interest from the date of the settlement. In
such an action, the terms of the settlement shall not be subject
to review.
(4) Claims for contribution
A person who has resolved its liability to the United States
under this subsection shall not be liable for claims for
contribution regarding matters addressed in the settlement. Such
settlement shall not discharge any of the other potentially
liable persons unless its terms so provide, but it reduces the
potential liability of the others by the amount of the
settlement.
(i) Settlement procedures
(1) Publication in Federal Register
At least 30 days before any settlement (including any
settlement arrived at through arbitration) may become final under
subsection (h) of this section, or under subsection (g) of this
section in the case of a settlement embodied in an administrative
order, the head of the department or agency which has
jurisdiction over the proposed settlement shall publish in the
Federal Register notice of the proposed settlement. The notice
shall identify the facility concerned and the parties to the
proposed settlement.
(2) Comment period
For a 30-day period beginning on the date of publication of
notice under paragraph (1) of a proposed settlement, the head of
the department or agency which has jurisdiction over the proposed
settlement shall provide an opportunity for persons who are not
parties to the proposed settlement to file written comments
relating to the proposed settlement.
(3) Consideration of comments
The head of the department or agency shall consider any
comments filed under paragraph (2) in determining whether or not
to consent to the proposed settlement and may withdraw or
withhold consent to the proposed settlement if such comments
disclose facts or considerations which indicate the proposed
settlement is inappropriate, improper, or inadequate.
(j) Natural resources
(1) Notification of trustee
Where a release or threatened release of any hazardous
substance that is the subject of negotiations under this section
may have resulted in damages to natural resources under the
trusteeship of the United States, the President shall notify the
Federal natural resource trustee of the negotiations and shall
encourage the participation of such trustee in the negotiations.
(2) Covenant not to sue
An agreement under this section may contain a covenant not to
sue under section 9607(a)(4)(C) of this title for damages to
natural resources under the trusteeship of the United States
resulting from the release or threatened release of hazardous
substances that is the subject of the agreement, but only if the
Federal natural resource trustee has agreed in writing to such
covenant. The Federal natural resource trustee may agree to such
covenant if the potentially responsible party agrees to undertake
appropriate actions necessary to protect and restore the natural
resources damaged by such release or threatened release of
hazardous substances.
(k) Section not applicable to vessels
The provisions of this section shall not apply to releases from a
vessel.
(l) Civil penalties
A potentially responsible party which is a party to an
administrative order or consent decree entered pursuant to an
agreement under this section or section 9620 of this title
(relating to Federal facilities) or which is a party to an
agreement under section 9620 of this title and which fails or
refuses to comply with any term or condition of the order, decree
or agreement shall be subject to a civil penalty in accordance with
section 9609 of this title.
(m) Applicability of general principles of law
In the case of consent decrees and other settlements under this
section (including covenants not to sue), no provision of this
chapter shall be construed to preclude or otherwise affect the
applicability of general principles of law regarding the setting
aside or modification of consent decrees or other settlements.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 122, as added Pub. L. 99-499, title
I, Sec. 122(a), Oct. 17, 1986, 100 Stat. 1678; amended Pub. L.
107-118, title I, Sec. 102(b), Jan. 11, 2002, 115 Stat. 2359.)
-REFTEXT-
REFERENCES IN TEXT
The Federal Rules of Evidence, referred to in subsec. (d)(1)(B),
are set out in the Appendix to Title 28, Judiciary and Judicial
Procedure.
-MISC1-
AMENDMENTS
2002 - Subsec. (g)(7) to (12). Pub. L. 107-118 added pars. (7) to
(12).
EFFECT ON CONCLUDED ACTIONS
Amendment by Pub. L. 107-118 not to apply to or in any way affect
any settlement lodged in, or judgment issued by, a United States
District Court, or any administrative settlement or order entered
into or issued by the United States or any State, before Jan. 11,
2002, see section 103 of Pub. L. 107-118, set out as a note under
section 9607 of this title.
COORDINATION OF TITLES I TO IV OF PUB. L. 99-499
Any provision of titles I to IV of Pub. L. 99-499, imposing any
tax, premium, or fee; establishing any trust fund; or authorizing
expenditures from any trust fund, to have no force or effect, see
section 531 of Pub. L. 99-499, set out as a note under section 1 of
Title 26, Internal Revenue Code.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9604, 9609, 9613, 9617,
9619, 9620, 9657 of this title; title 10 section 2701; title 14
section 691.
-End-
-CITE-
42 USC Sec. 9623 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9623. Reimbursement to local governments
-STATUTE-
(a) Application
Any general purpose unit of local government for a political
subdivision which is affected by a release or threatened release at
any facility may apply to the President for reimbursement under
this section.
(b) Reimbursement
(1) Temporary emergency measures
The President is authorized to reimburse local community
authorities for expenses incurred (before or after October 17,
1986) in carrying out temporary emergency measures necessary to
prevent or mitigate injury to human health or the environment
associated with the release or threatened release of any
hazardous substance or pollutant or contaminant. Such measures
may include, where appropriate, security fencing to limit access,
response to fires and explosions, and other measures which
require immediate response at the local level.
(2) Local funds not supplanted
Reimbursement under this section shall not supplant local funds
normally provided for response.
(c) Amount
The amount of any reimbursement to any local authority under
subsection (b)(1) of this section may not exceed $25,000 for a
single response. The reimbursement under this section with respect
to a single facility shall be limited to the units of local
government having jurisdiction over the political subdivision in
which the facility is located.
(d) Procedure
Reimbursements authorized pursuant to this section shall be in
accordance with rules promulgated by the Administrator within one
year after October 17, 1986.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 123, as added Pub. L. 99-499, title
I, Sec. 123(a), Oct. 17, 1986, 100 Stat. 1688.)
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 9611 of this title.
-End-
-CITE-
42 USC Sec. 9624 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9624. Methane recovery
-STATUTE-
(a) In general
In the case of a facility at which equipment for the recovery or
processing (including recirculation of condensate) of methane has
been installed, for purposes of this chapter:
(1) The owner or operator of such equipment shall not be
considered an "owner or operator", as defined in section 9601(20)
of this title, with respect to such facility.
(2) The owner or operator of such equipment shall not be
considered to have arranged for disposal or treatment of any
hazardous substance at such facility pursuant to section 9607 of
this title.
(3) The owner or operator of such equipment shall not be
subject to any action under section 9606 of this title with
respect to such facility.
(b) Exceptions
Subsection (a) of this section does not apply with respect to a
release or threatened release of a hazardous substance from a
facility described in subsection (a) of this section if either of
the following circumstances exist:
(1) The release or threatened release was primarily caused by
activities of the owner or operator of the equipment described in
subsection (a) of this section.
(2) The owner or operator of such equipment would be covered by
paragraph (1), (2), (3), or (4) of subsection (a) of section 9607
of this title with respect to such release or threatened release
if he were not the owner or operator of such equipment.
In the case of any release or threatened release referred to in
paragraph (1), the owner or operator of the equipment described in
subsection (a) of this section shall be liable under this chapter
only for costs or damages primarily caused by the activities of
such owner or operator.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 124, as added Pub. L. 99-499, title
I, Sec. 124(a), Oct. 17, 1986, 100 Stat. 1688.)
-End-
-CITE-
42 USC Sec. 9625 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9625. Section 6921(b)(3)(A)(i) waste
-STATUTE-
(a) Revision of hazard ranking system
This section shall apply only to facilities which are not
included or proposed for inclusion on the National Priorities List
and which contain substantial volumes of waste described in section
6921(b)(3)(A)(i) of this title. As expeditiously as practicable,
the President shall revise the hazard ranking system in effect
under the National Contingency Plan with respect to such facilities
in a manner which assures appropriate consideration of each of the
following site-specific characteristics of such facilities:
(1) The quantity, toxicity, and concentrations of hazardous
constituents which are present in such waste and a comparison
thereof with other wastes.
(2) The extent of, and potential for, release of such hazardous
constituents into the environment.
(3) The degree of risk to human health and the environment
posed by such constituents.
(b) Inclusion prohibited
Until the hazard ranking system is revised as required by this
section, the President may not include on the National Priorities
List any facility which contains substantial volumes of waste
described in section 6921(b)(3)(A)(i) of this title on the basis of
an evaluation made principally on the volume of such waste and not
on the concentrations of the hazardous constituents of such waste.
Nothing in this section shall be construed to affect the
President's authority to include any such facility on the National
Priorities List based on the presence of other substances at such
facility or to exercise any other authority of this chapter with
respect to such other substances.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 125, as added Pub. L. 99-499, title
I, Sec. 125, Oct. 17, 1986, 100 Stat. 1689.)
-End-
-CITE-
42 USC Sec. 9626 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9626. Indian tribes
-STATUTE-
(a) Treatment generally
The governing body of an Indian tribe shall be afforded
substantially the same treatment as a State with respect to the
provisions of section 9603(a) of this title (regarding notification
of releases), section 9604(c)(2) of this title (regarding
consultation on remedial actions), section 9604(e) of this title
(regarding access to information), section 9604(i) of this title
(regarding health authorities) and section 9605 of this title
(regarding roles and responsibilities under the national
contingency plan and submittal of priorities for remedial action,
but not including the provision regarding the inclusion of at least
one facility per State on the National Priorities List).
(b) Community relocation
Should the President determine that proper remedial action is the
permanent relocation of tribal members away from a contaminated
site because it is cost effective and necessary to protect their
health and welfare, such finding must be concurred in by the
affected tribal government before relocation shall occur. The
President, in cooperation with the Secretary of the Interior, shall
also assure that all benefits of the relocation program are
provided to the affected tribe and that alternative land of
equivalent value is available and satisfactory to the tribe. Any
lands acquired for relocation of tribal members shall be held in
trust by the United States for the benefit of the tribe.
(c) Study
The President shall conduct a survey, in consultation with the
Indian tribes, to determine the extent of hazardous waste sites on
Indian lands. Such survey shall be included within a report which
shall make recommendations on the program needs of tribes under
this chapter, with particular emphasis on how tribal participation
in the administration of such programs can be maximized. Such
report shall be submitted to Congress along with the President's
budget request for fiscal year 1988.
(d) Limitation
Notwithstanding any other provision of this chapter, no action
under this chapter by an Indian tribe shall be barred until the
later of the following:
(1) The applicable period of limitations has expired.
(2) 2 years after the United States, in its capacity as trustee
for the tribe, gives written notice to the governing body of the
tribe that it will not present a claim or commence an action on
behalf of the tribe or fails to present a claim or commence an
action within the time limitations specified in this chapter.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 126, as added Pub. L. 99-499, title
II, Sec. 207(e), Oct. 17, 1986, 100 Stat. 1706.)
-End-
-CITE-
42 USC Sec. 9627 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9627. Recycling transactions
-STATUTE-
(a) Liability clarification
(1) As provided in subsections (b), (c), (d), and (e) of this
section, a person who arranged for recycling of recyclable material
shall not be liable under sections 9607(a)(3) and 9607(a)(4) of
this title with respect to such material.
(2) A determination whether or not any person shall be liable
under section 9607(a)(3) of this title or section 9607(a)(4) of
this title for any material that is not a recyclable material as
that term is used in subsections (b) and (c), (d), or (e) of this
section shall be made, without regard to subsections )1(! (b), (c),
(d), or (e) of this section.
(b) Recyclable material defined
For purposes of this section, the term "recyclable material"
means scrap paper, scrap plastic, scrap glass, scrap textiles,
scrap rubber (other than whole tires), scrap metal, or spent
lead-acid, spent nickel-cadmium, and other spent batteries, as well
as minor amounts of material incident to or adhering to the scrap
material as a result of its normal and customary use prior to
becoming scrap; except that such term shall not include -
(1) shipping containers of a capacity from 30 liters to 3,000
liters, whether intact or not, having any hazardous substance
(but not metal bits and pieces or hazardous substance that form
an integral part of the container) contained in or adhering
thereto; or
(2) any item of material that contained polychlorinated
biphenyls at a concentration in excess of 50 parts per million or
any new standard promulgated pursuant to applicable Federal laws.
(c) Transactions involving scrap paper, plastic, glass, textiles,
or rubber
Transactions involving scrap paper, scrap plastic, scrap glass,
scrap textiles, or scrap rubber (other than whole tires) shall be
deemed to be arranging for recycling if the person who arranged for
the transaction (by selling recyclable material or otherwise
arranging for the recycling of recyclable material) can demonstrate
by a preponderance of the evidence that all of the following
criteria were met at the time of the transaction:
(1) The recyclable material met a commercial specification
grade.
(2) A market existed for the recyclable material.
(3) A substantial portion of the recyclable material was made
available for use as feedstock for the manufacture of a new
saleable product.
(4) The recyclable material could have been a replacement or
substitute for a virgin raw material, or the product to be made
from the recyclable material could have been a replacement or
substitute for a product made, in whole or in part, from a virgin
raw material.
(5) For transactions occurring 90 days or more after November
29, 1999, the person exercised reasonable care to determine that
the facility where the recyclable material was handled,
processed, reclaimed, or otherwise managed by another person
(hereinafter in this section referred to as a "consuming
facility") was in compliance with substantive (not procedural or
administrative) provisions of any Federal, State, or local
environmental law or regulation, or compliance order or decree
issued pursuant thereto, applicable to the handling, processing,
reclamation, storage, or other management activities associated
with recyclable material.
(6) For purposes of this subsection, "reasonable care" shall be
determined using criteria that include (but are not limited to) -
(A) the price paid in the recycling transaction;
(B) the ability of the person to detect the nature of the
consuming facility's operations concerning its handling,
processing, reclamation, or other management activities
associated with recyclable material; and
(C) the result of inquiries made to the appropriate Federal,
State, or local environmental agency (or agencies) regarding
the consuming facility's past and current compliance with
substantive (not procedural or administrative) provisions of
any Federal, State, or local environmental law or regulation,
or compliance order or decree issued pursuant thereto,
applicable to the handling, processing, reclamation, storage,
or other management activities associated with the recyclable
material. For the purposes of this paragraph, a requirement to
obtain a permit applicable to the handling, processing,
reclamation, or other management activity associated with the
recyclable materials shall be deemed to be a substantive
provision.
(d) Transactions involving scrap metal
(1) Transactions involving scrap metal shall be deemed to be
arranging for recycling if the person who arranged for the
transaction (by selling recyclable material or otherwise arranging
for the recycling of recyclable material) can demonstrate by a
preponderance of the evidence that at the time of the transaction -
(A) the person met the criteria set forth in subsection (c) of
this section with respect to the scrap metal;
(B) the person was in compliance with any applicable
regulations or standards regarding the storage, transport,
management, or other activities associated with the recycling of
scrap metal that the Administrator promulgates under the Solid
Waste Disposal Act [42 U.S.C. 6901 et seq.] subsequent to
November 29, 1999, and with regard to transactions occurring
after the effective date of such regulations or standards; and
(C) the person did not melt the scrap metal prior to the
transaction.
(2) For purposes of paragraph (1)(C), melting of scrap metal does
not include the thermal separation of 2 or more materials due to
differences in their melting points (referred to as "sweating").
(3) For purposes of this subsection, the term "scrap metal" means
bits and pieces of metal parts (e.g., bars, turnings, rods, sheets,
wire) or metal pieces that may be combined together with bolts or
soldering (e.g., radiators, scrap automobiles, railroad box cars),
which when worn or superfluous can be recycled, except for scrap
metals that the Administrator excludes from this definition by
regulation.
(e) Transactions involving batteries
Transactions involving spent lead-acid batteries, spent
nickel-cadmium batteries, or other spent batteries shall be deemed
to be arranging for recycling if the person who arranged for the
transaction (by selling recyclable material or otherwise arranging
for the recycling of recyclable material) can demonstrate by a
preponderance of the evidence that at the time of the transaction -
(1) the person met the criteria set forth in subsection (c) of
this section with respect to the spent lead-acid batteries, spent
nickel-cadmium batteries, or other spent batteries, but the
person did not recover the valuable components of such batteries;
and
(2)(A) with respect to transactions involving lead-acid
batteries, the person was in compliance with applicable Federal
environmental regulations or standards, and any amendments
thereto, regarding the storage, transport, management, or other
activities associated with the recycling of spent lead-acid
batteries;
(B) with respect to transactions involving nickel-cadmium
batteries, Federal environmental regulations or standards are in
effect regarding the storage, transport, management, or other
activities associated with the recycling of spent nickel-cadmium
batteries, and the person was in compliance with applicable
regulations or standards or any amendments thereto; or
(C) with respect to transactions involving other spent
batteries, Federal environmental regulations or standards are in
effect regarding the storage, transport, management, or other
activities associated with the recycling of such batteries, and
the person was in compliance with applicable regulations or
standards or any amendments thereto.
(f) Exclusions
(1) The exemptions set forth in subsections (c), (d), and (e) of
this section shall not apply if -
(A) the person had an objectively reasonable basis to believe
at the time of the recycling transaction -
(i) that the recyclable material would not be recycled;
(ii) that the recyclable material would be burned as fuel, or
for energy recovery or incineration; or
(iii) for transactions occurring before 90 days after
November 29, 1999, that the consuming facility was not in
compliance with a substantive (not procedural or
administrative) provision of any Federal, State, or local
environmental law or regulation, or compliance order or decree
issued pursuant thereto, applicable to the handling,
processing, reclamation, or other management activities
associated with the recyclable material;
(B) the person had reason to believe that hazardous substances
had been added to the recyclable material for purposes other than
processing for recycling; or
(C) the person failed to exercise reasonable care with respect
to the management and handling of the recyclable material
(including adhering to customary industry practices current at
the time of the recycling transaction designed to minimize,
through source control, contamination of the recyclable material
by hazardous substances).
(2) For purposes of this subsection, an objectively reasonable
basis for belief shall be determined using criteria that include
(but are not limited to) the size of the person's business,
customary industry practices (including customary industry
practices current at the time of the recycling transaction designed
to minimize, through source control, contamination of the
recyclable material by hazardous substances), the price paid in the
recycling transaction, and the ability of the person to detect the
nature of the consuming facility's operations concerning its
handling, processing, reclamation, or other management activities
associated with the recyclable material.
(3) For purposes of this subsection, a requirement to obtain a
permit applicable to the handling, processing, reclamation, or
other management activities associated with recyclable material
shall be deemed to be a substantive provision.
(g) Effect on other liability
Nothing in this section shall be deemed to affect the liability
of a person under paragraph (1) or (2) of section 9607(a) of this
title.
(h) Regulations
The Administrator has the authority, under section 9615 of this
title, to promulgate additional regulations concerning this
section.
(i) Effect on pending or concluded actions
The exemptions provided in this section shall not affect any
concluded judicial or administrative action or any pending judicial
action initiated by the United States prior to November 29, 1999.
(j) Liability for attorney's fees for certain actions
Any person who commences an action in contribution against a
person who is not liable by operation of this section shall be
liable to that person for all reasonable costs of defending that
action, including all reasonable attorney's and expert witness
fees.
(k) Relationship to liability under other laws
Nothing in this section shall affect -
(1) liability under any other Federal, State, or local statute
or regulation promulgated pursuant to any such statute, including
any requirements promulgated by the Administrator under the Solid
Waste Disposal Act [42 U.S.C. 6901 et seq.]; or
(2) the ability of the Administrator to promulgate regulations
under any other statute, including the Solid Waste Disposal Act.
(l) Limitation on statutory construction
Nothing in this section shall be construed to -
(1) affect any defenses or liabilities of any person to whom
subsection (a)(1) of this section does not apply; or
(2) create any presumption of liability against any person to
whom subsection (a)(1) of this section does not apply.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 127, as added Pub. L. 106-113, div.
B, Sec. 1000(a)(9) [title VI, Sec. 6001(b)(1)], Nov. 29, 1999, 113
Stat. 1536, 1501A-599.)
-REFTEXT-
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsecs. (d)(1)(B)
and (k), is title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat.
997, as amended generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976,
90 Stat. 2795, which is classified generally to chapter 82 (Sec.
6901 et seq.) of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 6901 of
this title and Tables.
-MISC1-
SUPERFUND RECYCLING EQUITY; PURPOSES
Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title VI, Sec.
6001(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A-598, provided that:
"The purposes of this section [enacting this section] are -
"(1) to promote the reuse and recycling of scrap material in
furtherance of the goals of waste minimization and natural
resource conservation while protecting human health and the
environment;
"(2) to create greater equity in the statutory treatment of
recycled versus virgin materials; and
"(3) to remove the disincentives and impediments to recycling
created as an unintended consequence of the 1980 Superfund
liability provisions."
-FOOTNOTE-
)1(! So in original. Probably should be "subsection".
-End-
-CITE-
42 USC Sec. 9628 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9628. State response programs
-STATUTE-
(a) Assistance to States
(1) In general
(A) States
The Administrator may award a grant to a State or Indian
tribe that -
(i) has a response program that includes each of the
elements, or is taking reasonable steps to include each of
the elements, listed in paragraph (2); or
(ii) is a party to a memorandum of agreement with the
Administrator for voluntary response programs.
(B) Use of grants by States
(i) In general
A State or Indian tribe may use a grant under this
subsection to establish or enhance the response program of
the State or Indian tribe.
(ii) Additional uses
In addition to the uses under clause (i), a State or Indian
tribe may use a grant under this subsection to -
(I) capitalize a revolving loan fund for brownfield
remediation under section 9604(k)(3) of this title; or
(II) purchase insurance or develop a risk sharing pool,
an indemnity pool, or insurance mechanism to provide
financing for response actions under a State response
program.
(2) Elements
The elements of a State or Indian tribe response program
referred to in paragraph (1)(A)(i) are the following:
(A) Timely survey and inventory of brownfield sites in the
State.
(B) Oversight and enforcement authorities or other
mechanisms, and resources, that are adequate to ensure that -
(i) a response action will -
(I) protect human health and the environment; and
(II) be conducted in accordance with applicable Federal
and State law; and
(ii) if the person conducting the response action fails to
complete the necessary response activities, including
operation and maintenance or long-term monitoring activities,
the necessary response activities are completed.
(C) Mechanisms and resources to provide meaningful
opportunities for public participation, including -
(i) public access to documents that the State, Indian
tribe, or party conducting the cleanup is relying on or
developing in making cleanup decisions or conducting site
activities;
(ii) prior notice and opportunity for comment on proposed
cleanup plans and site activities; and
(iii) a mechanism by which -
(I) a person that is or may be affected by a release or
threatened release of a hazardous substance, pollutant, or
contaminant at a brownfield site located in the community
in which the person works or resides may request the
conduct of a site assessment; and
(II) an appropriate State official shall consider and
appropriately respond to a request under subclause (I).
(D) Mechanisms for approval of a cleanup plan, and a
requirement for verification by and certification or similar
documentation from the State, an Indian tribe, or a licensed
site professional to the person conducting a response action
indicating that the response is complete.
(3) Funding
There is authorized to be appropriated to carry out this
subsection $50,000,000 for each of fiscal years 2002 through
2006.
(b) Enforcement in cases of a release subject to State program
(1) Enforcement
(A) In general
Except as provided in subparagraph (B) and subject to
subparagraph (C), in the case of an eligible response site at
which -
(i) there is a release or threatened release of a hazardous
substance, pollutant, or contaminant; and
(ii) a person is conducting or has completed a response
action regarding the specific release that is addressed by
the response action that is in compliance with the State
program that specifically governs response actions for the
protection of public health and the environment,
the President may not use authority under this chapter to take
an administrative or judicial enforcement action under section
9606(a) of this title or to take a judicial enforcement action
to recover response costs under section 9607(a) of this title
against the person regarding the specific release that is
addressed by the response action.
(B) Exceptions
The President may bring an administrative or judicial
enforcement action under this chapter during or after
completion of a response action described in subparagraph (A)
with respect to a release or threatened release at an eligible
response site described in that subparagraph if -
(i) the State requests that the President provide
assistance in the performance of a response action;
(ii) the Administrator determines that contamination has
migrated or will migrate across a State line, resulting in
the need for further response action to protect human health
or the environment, or the President determines that
contamination has migrated or is likely to migrate onto
property subject to the jurisdiction, custody, or control of
a department, agency, or instrumentality of the United States
and may impact the authorized purposes of the Federal
property;
(iii) after taking into consideration the response
activities already taken, the Administrator determines that -
(I) a release or threatened release may present an
imminent and substantial endangerment to public health or
welfare or the environment; and
(II) additional response actions are likely to be
necessary to address, prevent, limit, or mitigate the
release or threatened release; or
(iv) the Administrator, after consultation with the State,
determines that information, that on the earlier of the date
on which cleanup was approved or completed, was not known by
the State, as recorded in documents prepared or relied on in
selecting or conducting the cleanup, has been discovered
regarding the contamination or conditions at a facility such
that the contamination or conditions at the facility present
a threat requiring further remediation to protect public
health or welfare or the environment. Consultation with the
State shall not limit the ability of the Administrator to
make this determination.
(C) Public record
The limitations on the authority of the President under
subparagraph (A) apply only at sites in States that maintain,
update not less than annually, and make available to the public
a record of sites, by name and location, at which response
actions have been completed in the previous year and are
planned to be addressed under the State program that
specifically governs response actions for the protection of
public health and the environment in the upcoming year. The
public record shall identify whether or not the site, on
completion of the response action, will be suitable for
unrestricted use and, if not, shall identify the institutional
controls relied on in the remedy. Each State and tribe
receiving financial assistance under subsection (a) of this
section shall maintain and make available to the public a
record of sites as provided in this paragraph.
(D) EPA notification
(i) In general
In the case of an eligible response site at which there is
a release or threatened release of a hazardous substance,
pollutant, or contaminant and for which the Administrator
intends to carry out an action that may be barred under
subparagraph (A), the Administrator shall -
(I) notify the State of the action the Administrator
intends to take; and
(II)(aa) wait 48 hours for a reply from the State under
clause (ii); or
(bb) if the State fails to reply to the notification or
if the Administrator makes a determination under clause
(iii), take immediate action under that clause.
(ii) State reply
Not later than 48 hours after a State receives notice from
the Administrator under clause (i), the State shall notify
the Administrator if -
(I) the release at the eligible response site is or has
been subject to a cleanup conducted under a State program;
and
(II) the State is planning to abate the release or
threatened release, any actions that are planned.
(iii) Immediate Federal action
The Administrator may take action immediately after giving
notification under clause (i) without waiting for a State
reply under clause (ii) if the Administrator determines that
one or more exceptions under subparagraph (B) are met.
(E) Report to Congress
Not later than 90 days after the date of initiation of any
enforcement action by the President under clause (ii), (iii),
or (iv) of subparagraph (B), the President shall submit to
Congress a report describing the basis for the enforcement
action, including specific references to the facts
demonstrating that enforcement action is permitted under
subparagraph (B).
(2) Savings provision
(A) Costs incurred prior to limitations
Nothing in paragraph (1) precludes the President from seeking
to recover costs incurred prior to January 11, 2002, or during
a period in which the limitations of paragraph (1)(A) were not
applicable.
(B) Effect on agreements between States and EPA
Nothing in paragraph (1) -
(i) modifies or otherwise affects a memorandum of
agreement, memorandum of understanding, or any similar
agreement relating to this chapter between a State agency or
an Indian tribe and the Administrator that is in effect on or
before January 11, 2002 (which agreement shall remain in
effect, subject to the terms of the agreement); or
(ii) limits the discretionary authority of the President to
enter into or modify an agreement with a State, an Indian
tribe, or any other person relating to the implementation by
the President of statutory authorities.
(3) Effective date
This subsection applies only to response actions conducted
after February 15, 2001.
(c) Effect on Federal laws
Nothing in this section affects any liability or response
authority under any Federal law, including -
(1) this chapter, except as provided in subsection (b) of this
section;
(2) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);
(3) the Federal Water Pollution Control Act (33 U.S.C. 1251 et
seq.);
(4) the Toxic Substances Control Act (15 U.S.C. 2601 et seq.);
and
(5) the Safe Drinking Water Act (42 U.S.C. 300f et seq.).
-SOURCE-
(Pub. L. 96-510, title I, Sec. 128, as added Pub. L. 107-118, title
II, Sec. 231(b), Jan. 11, 2002, 115 Stat. 2375.)
-REFTEXT-
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsec. (c)(2), is
title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795,
which is classified generally to chapter 82 (Sec. 6901 et seq.) of
this title. For complete classification of this Act to the Code,
see Short Title note set out under section 6901 of this title and
Tables.
The Federal Water Pollution Control Act, referred to in subsec.
(c)(3), is act June 30, 1948, ch. 758, as amended generally by Pub.
L. 92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 816, which is classified
generally to chapter 26 (Sec. 1251 et seq.) of Title 33, Navigation
and Navigable Waters. For complete classification of this Act to
the Code, see Short Title note set out under section 1251 of Title
33 and Tables.
The Toxic Substances Control Act, referred to in subsec. (c)(4),
is Pub. L. 94-469, Oct. 11, 1976, 90 Stat. 2003, as amended, which
is classified generally to chapter 53 (Sec. 2601 et seq.) of Title
15, Commerce and Trade. For complete classification of this Act to
the Code, see Short Title note set out under section 2601 of Title
15 and Tables.
The Safe Drinking Water Act, referred to in subsec. (c)(5), is
title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L.
93-523, Sec. 2(a), 88 Stat. 1660, as amended, which is classified
generally to subchapter XII (Sec. 300f et seq.) of chapter 6A of
this title. For complete classification of this Act to the Code,
see Short Title note set out under section 201 of this title and
Tables.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 9601 of this title.
-End-
-CITE-
42 USC SUBCHAPTER II - HAZARDOUS SUBSTANCE RESPONSE
REVENUE 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER II - HAZARDOUS SUBSTANCE RESPONSE REVENUE
-HEAD-
SUBCHAPTER II - HAZARDOUS SUBSTANCE RESPONSE REVENUE
-End-
-CITE-
42 USC Part A - Hazardous Substance Response Trust Fund 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER II - HAZARDOUS SUBSTANCE RESPONSE REVENUE
Part A - Hazardous Substance Response Trust Fund
-HEAD-
PART A - HAZARDOUS SUBSTANCE RESPONSE TRUST FUND
-End-
-CITE-
42 USC Secs. 9631 to 9633 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER II - HAZARDOUS SUBSTANCE RESPONSE REVENUE
Part A - Hazardous Substance Response Trust Fund
-HEAD-
Secs. 9631 to 9633. Repealed. Pub. L. 99-499, title V, Sec.
517(c)(1), Oct. 17, 1986, 100 Stat. 1774
-MISC1-
Section 9631, Pub. L. 96-510, title II, Sec. 221, Dec. 11, 1980,
94 Stat. 2801; Pub. L. 99-499, title II, Sec. 204, Oct. 17, 1986,
100 Stat. 1696, provided for establishment of a Hazardous
Substances Superfund, so redesignated by section 204 of Pub. L.
99-499. See section 9507 of Title 26, Internal Revenue Code.
Section 9632, Pub. L. 96-510, title II, Sec. 222, Dec. 11, 1980,
94 Stat. 2802, limited liability of United States to amount in
Trust Fund.
Section 9633, Pub. L. 96-510, title II, Sec. 223, Dec. 11, 1980,
94 Stat. 2802, contained administrative provisions.
EFFECTIVE DATE OF REPEAL
Repeal by Pub. L. 99-499 effective Jan. 1, 1987, see section
517(e) of Pub. L. 99-499, set out as an Effective Date note under
section 9507 of Title 26, Internal Revenue Code.
-End-
-CITE-
42 USC Part B - Post-closure Liability Trust Fund 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER II - HAZARDOUS SUBSTANCE RESPONSE REVENUE
Part B - Post-closure Liability Trust Fund
-HEAD-
PART B - POST-CLOSURE LIABILITY TRUST FUND
-End-
-CITE-
42 USC Sec. 9641 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER II - HAZARDOUS SUBSTANCE RESPONSE REVENUE
Part B - Post-closure Liability Trust Fund
-HEAD-
Sec. 9641. Repealed. Pub. L. 99-499, title V, Sec. 514(b), Oct. 17,
1986, 100 Stat. 1767
-MISC1-
Section, Pub. L. 96-510, title II, Sec. 232, Dec. 11, 1980, 94
Stat. 2804, provided for establishment of the Post-closure
Liability Trust Fund in the Treasury of the United States.
EFFECTIVE DATE OF REPEAL
Section 514(c) of Pub. L. 99-499 provided that:
"(1) In general. - The amendments made by this section [repealing
this section and sections 4681 and 4682 of Title 26, Internal
Revenue Code] shall take effect on October 1, 1983.
"(2) Waiver of statute of limitations. - If on the date of the
enactment of this Act [Oct. 17, 1986] (or at any time within 1 year
after such date of enactment) refund or credit of any overpayment
of tax resulting from the application of this section is barred by
any law or rule of law, refund or credit of such overpayment shall,
nevertheless, be made or allowed if claim therefor is filed before
the date 1 year after the date of the enactment of this Act."
-End-
-CITE-
42 USC SUBCHAPTER III - MISCELLANEOUS PROVISIONS 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-End-
-CITE-
42 USC Sec. 9651 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9651. Reports and studies
-STATUTE-
(a) Implementation experiences; identification and disposal of
waste
(1) The President shall submit to the Congress, within four years
after December 11, 1980, a comprehensive report on experience with
the implementation of this chapter including, but not limited to -
(A) the extent to which the chapter and Fund are effective in
enabling Government to respond to and mitigate the effects of
releases of hazardous substances;
(B) a summary of past receipts and disbursements from the Fund;
(C) a projection of any future funding needs remaining after
the expiration of authority to collect taxes, and of the threat
to public health, welfare, and the environment posed by the
projected releases which create any such needs;
(D) the record and experience of the Fund in recovering Fund
disbursements from liable parties;
(E) the record of State participation in the system of
response, liability, and compensation established by this
chapter;
(F) the impact of the taxes imposed by subchapter II )1(! of
this chapter on the Nation's balance of trade with other
countries;
(G) an assessment of the feasibility and desirability of a
schedule of taxes which would take into account one or more of
the following: the likelihood of a release of a hazardous
substance, the degree of hazard and risk of harm to public
health, welfare, and the environment resulting from any such
release, incentives to proper handling, recycling, incineration,
and neutralization of hazardous wastes, and disincentives to
improper or illegal handling or disposal of hazardous materials,
administrative and reporting burdens on Government and industry,
and the extent to which the tax burden falls on the substances
and parties which create the problems addressed by this chapter.
In preparing the report, the President shall consult with
appropriate Federal, State, and local agencies, affected
industries and claimants, and such other interested parties as he
may find useful. Based upon the analyses and consultation
required by this subsection, the President shall also include in
the report any recommendations for legislative changes he may
deem necessary for the better effectuation of the purposes of
this chapter, including but not limited to recommendations
concerning authorization levels, taxes, State participation,
liability and liability limits, and financial responsibility
provisions for the Response Trust Fund and the Post-closure
Liability Trust Fund;
(H) an exemption from or an increase in the substances or the
amount of taxes imposed by section 4661 of title 26 for copper,
lead, and zinc oxide, and for feedstocks when used in the
manufacture and production of fertilizers, based upon the
expenditure experience of the Response Trust Fund;
(I) the economic impact of taxing coal-derived substances and
recycled metals.
(2) The Administrator of the Environmental Protection Agency (in
consultation with the Secretary of the Treasury) shall submit to
the Congress (i) within four years after December 11, 1980, a
report identifying additional wastes designated by rule as
hazardous after the effective date of this chapter and pursuant to
section 3001 of the Solid Waste Disposal Act [42 U.S.C. 6921] and
recommendations on appropriate tax rates for such wastes for the
Post-closure Liability Trust Fund. The report shall, in addition,
recommend a tax rate, considering the quantity and potential danger
to human health and the environment posed by the disposal of any
wastes which the Administrator, pursuant to subsection
3001(b)(2)(B) and subsection 3001(b)(3)(A) of the Solid Waste
Disposal Act of 1980 [42 U.S.C. 6921(b)(2)(B) and 6921(b)(3)(A)],
has determined should be subject to regulation under subtitle C of
such Act [42 U.S.C. 6921 et seq.], (ii) within three years after
December 11, 1980, a report on the necessity for and the adequacy
of the revenue raised, in relation to estimated future
requirements, of the Post-closure Liability Trust Fund.
(b) Private insurance protection
The President shall conduct a study to determine (1) whether
adequate private insurance protection is available on reasonable
terms and conditions to the owners and operators of vessels and
facilities subject to liability under section 9607 of this title,
and (2) whether the market for such insurance is sufficiently
competitive to assure purchasers of features such as a reasonable
range of deductibles, coinsurance provisions, and exclusions. The
President shall submit the results of his study, together with his
recommendations, within two years of December 11, 1980, and shall
submit an interim report on his study within one year of December
11, 1980.
(c) Regulations respecting assessment of damages to natural
resources
(1) The President, acting through Federal officials designated by
the National Contingency Plan published under section 9605 of this
title, shall study and, not later than two years after December 11,
1980, shall promulgate regulations for the assessment of damages
for injury to, destruction of, or loss of natural resources
resulting from a release of oil or a hazardous substance for the
purposes of this chapter and section 1321(f)(4) and (5) of title
33. Notwithstanding the failure of the President to promulgate the
regulations required under this subsection on the required date,
the President shall promulgate such regulations not later than 6
months after October 17, 1986.
(2) Such regulations shall specify (A) standard procedures for
simplified assessments requiring minimal field observation,
including establishing measures of damages based on units of
discharge or release or units of affected area, and (B) alternative
protocols for conducting assessments in individual cases to
determine the type and extent of short- and long-term injury,
destruction, or loss. Such regulations shall identify the best
available procedures to determine such damages, including both
direct and indirect injury, destruction, or loss and shall take
into consideration factors including, but not limited to,
replacement value, use value, and ability of the ecosystem or
resource to recover.
(3) Such regulations shall be reviewed and revised as appropriate
every two years.
(d) Issues, alternatives, and policy considerations involving
selection of locations for waste treatment, storage, and disposal
facilities
The Administrator of the Environmental Protection Agency shall,
in consultation with other Federal agencies and appropriate
representatives of State and local governments and nongovernmental
agencies, conduct a study and report to the Congress within two
years of December 11, 1980, on the issues, alternatives, and policy
considerations involved in the selection of locations for hazardous
waste treatment, storage, and disposal facilities. This study shall
include -
(A) an assessment of current and projected treatment, storage,
and disposal capacity needs and shortfalls for hazardous waste by
management category on a State-by-State basis;
(B) an evaluation of the appropriateness of a regional approach
to siting and designing hazardous waste management facilities and
the identification of hazardous waste management regions,
interstate or intrastate, or both, with similar hazardous waste
management needs;
(C) solicitation and analysis of proposals for the construction
and operation of hazardous waste management facilities by
nongovernmental entities, except that no proposal solicited under
terms of this subsection shall be analyzed if it involves cost to
the United States Government or fails to comply with the
requirements of subtitle C of the Solid Waste Disposal Act [42
U.S.C. 6921 et seq.] and other applicable provisions of law;
(D) recommendations on the appropriate balance between public
and private sector involvement in the siting, design, and
operation of new hazardous waste management facilities;
(E) documentation of the major reasons for public opposition to
new hazardous waste management facilities; and
(F) an evaluation of the various options for overcoming
obstacles to siting new facilities, including needed legislation
for implementing the most suitable option or options.
(e) Adequacy of existing common law and statutory remedies
(1) In order to determine the adequacy of existing common law and
statutory remedies in providing legal redress for harm to man and
the environment caused by the release of hazardous substances into
the environment, there shall be submitted to the Congress a study
within twelve months of December 11, 1980.
(2) This study shall be conducted with the assistance of the
American Bar Association, the American Law Institute, the
Association of American Trial Lawyers, and the National Association
of State Attorneys General with the President of each entity
selecting three members from each organization to conduct the
study. The study chairman and one reporter shall be elected from
among the twelve members of the study group.
(3) As part of their review of the adequacy of existing common
law and statutory remedies, the study group shall evaluate the
following:
(A) the nature, adequacy, and availability of existing remedies
under present law in compensating for harm to man from the
release of hazardous substances;
(B) the nature of barriers to recovery (particularly with
respect to burdens of going forward and of proof and relevancy)
and the role such barriers play in the legal system;
(C) the scope of the evidentiary burdens placed on the
plaintiff in proving harm from the release of hazardous
substances, particularly in light of the scientific uncertainty
over causation with respect to -
(i) carcinogens, mutagens, and teratogens, and
(ii) the human health effects of exposure to low doses of
hazardous substances over long periods of time;
(D) the nature and adequacy of existing remedies under present
law in providing compensation for damages to natural resources
from the release of hazardous substances;
(E) the scope of liability under existing law and the
consequences, particularly with respect to obtaining insurance,
of any changes in such liability;
(F) barriers to recovery posed by existing statutes of
limitations.
(4) The report shall be submitted to the Congress with
appropriate recommendations. Such recommendations shall explicitly
address -
(A) the need for revisions in existing statutory or common law,
and
(B) whether such revisions should take the form of Federal
statutes or the development of a model code which is recommended
for adoption by the States.
(5) The Fund shall pay administrative expenses incurred for the
study. No expenses shall be available to pay compensation, except
expenses on a per diem basis for the one reporter, but in no case
shall the total expenses of the study exceed $300,000.
(f) Modification of national contingency plan
The President, acting through the Administrator of the
Environmental Protection Agency, the Secretary of Transportation,
the Administrator of the Occupational Safety and Health
Administration, and the Director of the National Institute for
Occupational Safety and Health shall study and, not later than two
years after December 11, 1980, shall modify the national
contingency plan to provide for the protection of the health and
safety of employees involved in response actions.
(g) Insurability study
(1) Study by Comptroller General
The Comptroller General of the United States, in consultation
with the persons described in paragraph (2), shall undertake a
study to determine the insurability, and effects on the standard
of care, of the liability of each of the following:
(A) Persons who generate hazardous substances: liability for
costs and damages under this chapter.
(B) Persons who own or operate facilities: liability for
costs and damages under this chapter.
(C) Persons liable for injury to persons or property caused
by the release of hazardous substances into the environment.
(2) Consultation
In conducting the study under this subsection, the Comptroller
General shall consult with the following:
(A) Representatives of the Administrator.
(B) Representatives of persons described in subparagraphs (A)
through (C) of the preceding paragraph.
(C) Representatives (i) of groups or organizations comprised
generally of persons adversely affected by releases or
threatened releases of hazardous substances and (ii) of groups
organized for protecting the interests of consumers.
(D) Representatives of property and casualty insurers.
(E) Representatives of reinsurers.
(F) Persons responsible for the regulation of insurance at
the State level.
(3) Items evaluated
The study under this section shall include, among other
matters, an evaluation of the following:
(A) Current economic conditions in, and the future outlook
for, the commercial market for insurance and reinsurance.
(B) Current trends in statutory and common law remedies.
(C) The impact of possible changes in traditional standards
of liability, proof, evidence, and damages on existing
statutory and common law remedies.
(D) The effect of the standard of liability and extent of the
persons upon whom it is imposed under this chapter on the
protection of human health and the environment and on the
availability, underwriting, and pricing of insurance coverage.
(E) Current trends, if any, in the judicial interpretation
and construction of applicable insurance contracts, together
with the degree to which amendments in the language of such
contracts and the description of the risks assumed, could
affect such trends.
(F) The frequency and severity of a representative sample of
claims closed during the calendar year immediately preceding
October 17, 1986.
(G) Impediments to the acquisition of insurance or other
means of obtaining liability coverage other than those referred
to in the preceding subparagraphs.
(H) The effects of the standards of liability and financial
responsibility requirements imposed pursuant to this chapter on
the cost of, and incentives for, developing and demonstrating
alternative and innovative treatment technologies, as well as
waste generation minimization.
(4) Submission
The Comptroller General shall submit a report on the results of
the study to Congress with appropriate recommendations within 12
months after October 17, 1986.
-SOURCE-
(Pub. L. 96-510, title III, Sec. 301, Dec. 11, 1980, 94 Stat. 2805;
Pub. L. 99-499, title I, Sec. 107(d)(3), title II, Secs. 208, 212,
Oct. 17, 1986, 100 Stat. 1630, 1707, 1726; Pub. L. 99-514, Sec. 2,
Oct. 22, 1986, 100 Stat. 2095.)
-REFTEXT-
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a)(1)(A), (E), (G),
(c)(1), and (g), was in the original "this Act", meaning Pub. L.
96-510, Dec. 11, 1980, 94 Stat. 2767, as amended, known as the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, which enacted this chapter, section 6911a of this
title, and sections 4611, 4612, 4661, 4662, 4681, and 4682 of Title
26, Internal Revenue Code, amended section 6911 of this title,
section 1364 of Title 33, Navigation and Navigable Waters, and
section 11901 of Title 49, Transportation, and enacted provisions
set out as notes under section 6911 of this title and sections 1
and 4611 of Title 26. For complete classification of this Act to
the Code, see Short Title note set out under section 9601 of this
title and Tables.
Subchapter II of this chapter, referred to in subsec. (a)(1)(F),
was in the original "title II of this Act", meaning title II of
Pub. L. 96-510, Dec. 11, 1980, 94 Stat. 2796, known as the
Hazardous Substance Response Revenue Act of 1980, which enacted
subchapter II of this chapter and sections 4611, 4612, 4661, 4662,
4681, and 4682 of Title 26. Sections 221 to 223 and 232 of Pub. L.
96-510, which were classified to sections 9631 to 9633 and 9641 of
this title, comprising subchapter II of this chapter, were repealed
by Pub. L. 99-499, title V, Secs. 514(b), 517(c)(1), Oct. 17, 1986,
100 Stat. 1767, 1774. For complete classification of title II to
the Code, see Short Title of 1980 Amendment note set out under
section 1 of Title 26 and Tables.
For effective date of this chapter, referred to in subsec.
(a)(2), see section 9652 of this title.
Subsection 3001(b)(2)(B) and subsection 3001(b)(3)(A) of the
Solid Waste Disposal Act of 1980, referred to in subsec. (a)(2),
probably mean section 3001(b)(2)(B) and (3)(A) of the Solid Waste
Disposal Act, as amended by the Solid Waste Disposal Act Amendments
of 1980, which enacted section 6921(b)(2)(B) and (3)(A) of this
title.
The Solid Waste Disposal Act, referred to in subsecs. (a)(2) and
(d)(C), is title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997,
as amended generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90
Stat. 2795. Subtitle C of the Solid Waste Disposal Act is
classified generally to subchapter III (Sec. 6921 et seq.) of
chapter 82 of this title. For complete classification of this Act
to the Code, see Short Title note set out under section 6901 of
this title and Tables.
-COD-
CODIFICATION
Subsec. (h) of this section, which required the Administrator of
the Environmental Protection Agency to submit an annual report to
Congress of such Agency on the progress achieved in implementing
this chapter during the preceding fiscal year, required the
Inspector General of the Agency to review the report for
reasonableness and accuracy and submit to Congress, as a part of
that report, a report on the results of the review, and required
the appropriate authorizing committees of Congress, after receiving
those reports, to conduct oversight hearings to ensure that this
chapter is being implemented according to the purposes of this
chapter and congressional intent in enacting this chapter,
terminated, effective May 15, 2000, pursuant to section 3003 of
Pub. L. 104-66, as amended, set out as a note under section 1113 of
Title 31, Money and Finance. See, also, the 5th item on page 164 of
House Document No. 103-7.
-MISC1-
AMENDMENTS
1986 - Subsec. (a)(1)(H). Pub. L. 99-514 substituted "Internal
Revenue Code of 1986" for "Internal Revenue Code of 1954", which
for purposes of codification was translated as "title 26" thus
requiring no change in text.
Subsec. (c)(1). Pub. L. 99-499, Sec. 107(d)(3), inserted at end
"Notwithstanding the failure of the President to promulgate the
regulations required under this subsection on the required date,
the President shall promulgate such regulations not later than 6
months after October 17, 1986."
Subsec. (g). Pub. L. 99-499, Sec. 208, added subsec. (g).
Subsec. (h). Pub. L. 99-499, Sec. 212, added subsec. (h).
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9604, 9607, 9612, 9613 of
this title.
-FOOTNOTE-
)1(! See References in Text note below.
-End-
-CITE-
42 USC Sec. 9652 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9652. Effective dates; savings provisions
-STATUTE-
(a) Unless otherwise provided, all provisions of this chapter
shall be effective on December 11, 1980.
(b) Any regulation issued pursuant to any provisions of section
1321 of title 33 which is repealed or superseded by this chapter
and which is in effect on the date immediately preceding the
effective date of this chapter shall be deemed to be a regulation
issued pursuant to the authority of this chapter and shall remain
in full force and effect unless or until superseded by new
regulations issued thereunder.
(c) Any regulation -
(1) respecting financial responsibility,
(2) issued pursuant to any provision of law repealed or
superseded by this chapter, and
(3) in effect on the date immediately preceding the effective
date of this chapter shall be deemed to be a regulation issued
pursuant to the authority of this chapter and shall remain in
full force and effect unless or until superseded by new
regulations issued thereunder.
(d) Nothing in this chapter shall affect or modify in any way the
obligations or liabilities of any person under other Federal or
State law, including common law, with respect to releases of
hazardous substances or other pollutants or contaminants. The
provisions of this chapter shall not be considered, interpreted, or
construed in any way as reflecting a determination, in part or
whole, of policy regarding the inapplicability of strict liability,
or strict liability doctrines, to activities relating to hazardous
substances, pollutants, or contaminants or other such activities.
-SOURCE-
(Pub. L. 96-510, title III, Sec. 302, Dec. 11, 1980, 94 Stat.
2808.)
-End-
-CITE-
42 USC Sec. 9653 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9653. Repealed. Pub. L. 99-499, title V, Sec. 511(b), Oct. 17,
1986, 100 Stat. 1761
-MISC1-
Section, Pub. L. 96-510, title III, Sec. 303, Dec. 11, 1980, 94
Stat. 2808, provided for termination of authority to collect taxes
under this chapter.
EFFECTIVE DATE OF REPEAL
Repeal effective Jan. 1, 1987, see section 511(c) of Pub. L.
99-499, set out as an Effective Date of 1986 Amendment note under
section 4611 of Title 26, Internal Revenue Code.
-End-
-CITE-
42 USC Sec. 9654 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9654. Applicability of Federal water pollution control
funding, etc., provisions
-STATUTE-
(a) Omitted
(b) One-half of the unobligated balance remaining before December
11, 1980, under subsection (k) )1(! of section 1321 of title 33 and
all sums appropriated under section 1364(b) )1(! of title 33 shall
be transferred to the Fund established under subchapter II )1(! of
this chapter.
(c) In any case in which any provision of section 1321 of title
33 is determined to be in conflict with any provisions of this
chapter, the provisions of this chapter shall apply.
-SOURCE-
(Pub. L. 96-510, title III, Sec. 304, Dec. 11, 1980, 94 Stat.
2809.)
-REFTEXT-
REFERENCES IN TEXT
Subsection (k) of section 1321 of title 33, referred to in
subsec. (b), was repealed by Pub. L. 101-380, title II, Sec.
2002(b)(2), Aug. 18, 1990, 104 Stat. 507.
Section 1364(b) of title 33, referred to in subsec. (b), was
repealed by Pub. L. 96-510, title III, Sec. 304(a), Dec. 11, 1980,
94 Stat. 2809.
Subchapter II of this chapter, referred to in subsec. (b), was in
the original "title II of this Act", meaning title II of Pub. L.
96-510, Dec. 11, 1980, 94 Stat. 2796, known as the Hazardous
Substance Response Revenue Act of 1980, which enacted subchapter II
of this chapter and sections 4611, 4612, 4661, 4662, 4681, and 4682
of Title 26, Internal Revenue Code. Sections 221 to 223 and 232 of
Pub. L. 96-510, which were classified to sections 9631 to 9633 and
9641 of this title, comprising subchapter II of this chapter, were
repealed by Pub. L. 99-499, title V, Secs. 514(b), 517(c)(1), Oct.
17, 1986, 100 Stat. 1767, 1774. For complete classification of
title II to the Code, see Short Title of 1980 Amendment note set
out under section 1 of Title 26 and Tables.
-COD-
CODIFICATION
Subsec. (a) of this section repealed section 1364(b) of Title 33,
Navigation and Navigable Waters.
-FOOTNOTE-
)1(! See References in Text note below.
-End-
-CITE-
42 USC Sec. 9655 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9655. Legislative veto of rule or regulation
-STATUTE-
(a) Transmission to Congress upon promulgation or repromulgation of
rule or regulation; disapproval procedures
Notwithstanding any other provision of law, simultaneously with
promulgation or repromulgation of any rule or regulation under
authority of subchapter I of this chapter, the head of the
department, agency, or instrumentality promulgating such rule or
regulation shall transmit a copy thereof to the Secretary of the
Senate and the Clerk of the House of Representatives. Except as
provided in subsection (b) of this section, the rule or regulation
shall not become effective, if -
(1) within ninety calendar days of continuous session of
Congress after the date of promulgation, both Houses of Congress
adopt a concurrent resolution, the matter after the resolving
clause of which is as follows: "That Congress disapproves the
rule or regulation promulgated by the dealing with the
matter of , which rule or regulation was transmitted to
Congress on .", the blank spaces therein being
appropriately filled; or
(2) within sixty calendar days of continuous session of
Congress after the date of promulgation, one House of Congress
adopts such a concurrent resolution and transmits such resolution
to the other House, and such resolution is not disapproved by
such other House within thirty calendar days of continuous
session of Congress after such transmittal.
(b) Approval; effective dates
If, at the end of sixty calendar days of continuous session of
Congress after the date of promulgation of a rule or regulation, no
committee of either House of Congress has reported or been
discharged from further consideration of a concurrent resolution
disapproving the rule or regulation and neither House has adopted
such a resolution, the rule or regulation may go into effect
immediately. If, within such sixty calendar days, such a committee
has reported or been discharged from further consideration of such
a resolution, or either House has adopted such a resolution, the
rule or regulation may go into effect not sooner than ninety
calendar days of continuous session of Congress after such rule is
prescribed unless disapproved as provided in subsection (a) of this
section.
(c) Sessions of Congress as applicable
For purposes of subsections (a) and (b) of this section -
(1) continuity of session is broken only by an adjournment of
Congress sine die; and
(2) the days on which either House is not in session because of
an adjournment of more than three days to a day certain are
excluded in the computation of thirty, sixty, and ninety calendar
days of continuous session of Congress.
(d) Congressional inaction on, or rejection of, resolution of
disapproval
Congressional inaction on, or rejection of, a resolution of
disapproval shall not be deemed an expression of approval of such
rule or regulation.
-SOURCE-
(Pub. L. 96-510, title III, Sec. 305, Dec. 11, 1980, 94 Stat.
2809.)
-End-
-CITE-
42 USC Sec. 9656 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9656. Transportation of hazardous substances; listing as
hazardous material; liability for release
-STATUTE-
(a) Each hazardous substance which is listed or designated as
provided in section 9601(14) of this title shall, within 30 days
after October 17, 1986, or at the time of such listing or
designation, whichever is later, be listed and regulated as a
hazardous material under chapter 51 of title 49.
(b) A common or contract carrier shall be liable under other law
in lieu of section 9607 of this title for damages or remedial
action resulting from the release of a hazardous substance during
the course of transportation which commenced prior to the effective
date of the listing and regulation of such substance as a hazardous
material under chapter 51 of title 49, or for substances listed
pursuant to subsection (a) of this section, prior to the effective
date of such listing: Provided, however, That this subsection shall
not apply where such a carrier can demonstrate that he did not have
actual knowledge of the identity or nature of the substance
released.
-SOURCE-
(Pub. L. 96-510, title III, Sec. 306(a), (b), Dec. 11, 1980, 94
Stat. 2810; Pub. L. 99-499, title II, Sec. 202, Oct. 17, 1986, 100
Stat. 1695.)
-COD-
CODIFICATION
In subsecs. (a) and (b), "chapter 51 of title 49" substituted for
"the Hazardous Materials Transportation Act [49 App. U.S.C. 1801 et
seq.]" on authority of Pub. L. 103-272, Sec. 6(b), July 5, 1994,
108 Stat. 1378, the first section of which enacted subtitles II,
III, and V to X of Title 49, Transportation.
-MISC1-
AMENDMENTS
1986 - Subsec. (a). Pub. L. 99-499, Sec. 202(a), substituted
"within 30 days after October 17, 1986" for "within ninety days
after December 11, 1980" and inserted "and regulated" before "as a
hazardous material".
Subsec. (b). Pub. L. 99-499, Sec. 202(b), inserted "and
regulation" after "prior to the effective date of the listing".
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 49 section 31301.
-End-
-CITE-
42 USC Sec. 9657 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9657. Separability; contribution
-STATUTE-
If any provision of this chapter, or the application of any
provision of this chapter to any person or circumstance, is held
invalid, the application of such provision to other persons or
circumstances and the remainder of this chapter shall not be
affected thereby. If an administrative settlement under section
9622 of this title has the effect of limiting any person's right to
obtain contribution from any party to such settlement, and if the
effect of such limitation would constitute a taking without just
compensation in violation of the fifth amendment of the
Constitution of the United States, such person shall not be
entitled, under other laws of the United States, to recover
compensation from the United States for such taking, but in any
such case, such limitation on the right to obtain contribution
shall be treated as having no force and effect.
-SOURCE-
(Pub. L. 96-510, title III, Sec. 308, Dec. 11, 1980, 94 Stat. 2811;
Pub. L. 99-499, title I, Sec. 122(b), Oct. 17, 1986, 100 Stat.
1688.)
-REFTEXT-
REFERENCES IN TEXT
This chapter, referred to in text, was in the original "this
Act", meaning Pub. L. 96-510, Dec. 11, 1980, 94 Stat. 2767, as
amended, known as the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, which enacted this
chapter, section 6911a of this title, and sections 4611, 4612,
4661, 4662, 4681, and 4682 of Title 26, Internal Revenue Code,
amended section 6911 of this title, section 1364 of Title 33,
Navigation and Navigable Waters, and section 11901 of Title 49,
Transportation, and enacted provisions set out as notes under
section 6911 of this title and sections 1 and 4611 of Title 26. For
complete classification of this Act to the Code, see Short Title
note set out under section 9601 of this title and Tables.
-MISC1-
AMENDMENTS
1986 - Pub. L. 99-499 inserted sentence at end relating to
administrative settlements under section 9622 of this title which
have effect of limiting any person's right to obtain contribution
from any party to such settlement.
-End-
-CITE-
42 USC Sec. 9658 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9658. Actions under State law for damages from exposure to
hazardous substances
-STATUTE-
(a) State statutes of limitations for hazardous substance cases
(1) Exception to State statutes
In the case of any action brought under State law for personal
injury, or property damages, which are caused or contributed to
by exposure to any hazardous substance, or pollutant or
contaminant, released into the environment from a facility, if
the applicable limitations period for such action (as specified
in the State statute of limitations or under common law) provides
a commencement date which is earlier than the federally required
commencement date, such period shall commence at the federally
required commencement date in lieu of the date specified in such
State statute.
(2) State law generally applicable
Except as provided in paragraph (1), the statute of limitations
established under State law shall apply in all actions brought
under State law for personal injury, or property damages, which
are caused or contributed to by exposure to any hazardous
substance, or pollutant or contaminant, released into the
environment from a facility.
(3) Actions under section 9607
Nothing in this section shall apply with respect to any cause
of action brought under section 9607 of this title.
(b) Definitions
As used in this section -
(1) Subchapter I terms
The terms used in this section shall have the same meaning as
when used in subchapter I of this chapter.
(2) Applicable limitations period
The term "applicable limitations period" means the period
specified in a statute of limitations during which a civil action
referred to in subsection (a)(1) of this section may be brought.
(3) Commencement date
The term "commencement date" means the date specified in a
statute of limitations as the beginning of the applicable
limitations period.
(4) Federally required commencement date
(A) In general
Except as provided in subparagraph (B), the term "federally
required commencement date" means the date the plaintiff knew
(or reasonably should have known) that the personal injury or
property damages referred to in subsection (a)(1) of this
section were caused or contributed to by the hazardous
substance or pollutant or contaminant concerned.
(B) Special rules
In the case of a minor or incompetent plaintiff, the term
"federally required commencement date" means the later of the
date referred to in subparagraph (A) or the following:
(i) In the case of a minor, the date on which the minor
reaches the age of majority, as determined by State law, or
has a legal representative appointed.
(ii) In the case of an incompetent individual, the date on
which such individual becomes competent or has had a legal
representative appointed.
-SOURCE-
(Pub. L. 96-510, title III, Sec. 309, as added Pub. L. 99-499,
title II, Sec. 203(a), Oct. 17, 1986, 100 Stat. 1695.)
-MISC1-
EFFECTIVE DATE
Section 203(b) of Pub. L. 99-499 provided that: "The amendment
made by subsection (a) of this section [enacting this section]
shall take effect with respect to actions brought after December
11, 1980."
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 9659 of this title.
-End-
-CITE-
42 USC Sec. 9659 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9659. Citizens suits
-STATUTE-
(a) Authority to bring civil actions
Except as provided in subsections (d) and (e) of this section and
in section 9613(h) of this title (relating to timing of judicial
review), any person may commence a civil action on his own behalf -
(1) against any person (including the United States and any
other governmental instrumentality or agency, to the extent
permitted by the eleventh amendment to the Constitution) who is
alleged to be in violation of any standard, regulation,
condition, requirement, or order which has become effective
pursuant to this chapter (including any provision of an agreement
under section 9620 of this title, relating to Federal
facilities); or
(2) against the President or any other officer of the United
States (including the Administrator of the Environmental
Protection Agency and the Administrator of the ATSDR) where there
is alleged a failure of the President or of such other officer to
perform any act or duty under this chapter, including an act or
duty under section 9620 of this title (relating to Federal
facilities), which is not discretionary with the President or
such other officer.
Paragraph (2) shall not apply to any act or duty under the
provisions of section 9660 of this title (relating to research,
development, and demonstration).
(b) Venue
(1) Actions under subsection (a)(1)
Any action under subsection (a)(1) of this section shall be
brought in the district court for the district in which the
alleged violation occurred.
(2) Actions under subsection (a)(2)
Any action brought under subsection (a)(2) of this section may
be brought in the United States District Court for the District
of Columbia.
(c) Relief
The district court shall have jurisdiction in actions brought
under subsection (a)(1) of this section to enforce the standard,
regulation, condition, requirement, or order concerned (including
any provision of an agreement under section 9620 of this title), to
order such action as may be necessary to correct the violation, and
to impose any civil penalty provided for the violation. The
district court shall have jurisdiction in actions brought under
subsection (a)(2) of this section to order the President or other
officer to perform the act or duty concerned.
(d) Rules applicable to subsection (a)(1) actions
(1) Notice
No action may be commenced under subsection (a)(1) of this
section before 60 days after the plaintiff has given notice of
the violation to each of the following:
(A) The President.
(B) The State in which the alleged violation occurs.
(C) Any alleged violator of the standard, regulation,
condition, requirement, or order concerned (including any
provision of an agreement under section 9620 of this title).
Notice under this paragraph shall be given in such manner as the
President shall prescribe by regulation.
(2) Diligent prosecution
No action may be commenced under paragraph (1) of subsection
(a) of this section if the President has commenced and is
diligently prosecuting an action under this chapter, or under the
Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] to require
compliance with the standard, regulation, condition, requirement,
or order concerned (including any provision of an agreement under
section 9620 of this title).
(e) Rules applicable to subsection (a)(2) actions
No action may be commenced under paragraph (2) of subsection (a)
of this section before the 60th day following the date on which the
plaintiff gives notice to the Administrator or other department,
agency, or instrumentality that the plaintiff will commence such
action. Notice under this subsection shall be given in such manner
as the President shall prescribe by regulation.
(f) Costs
The court, in issuing any final order in any action brought
pursuant to this section, may award costs of litigation (including
reasonable attorney and expert witness fees) to the prevailing or
the substantially prevailing party whenever the court determines
such an award is appropriate. The court may, if a temporary
restraining order or preliminary injunction is sought, require the
filing of a bond or equivalent security in accordance with the
Federal Rules of Civil Procedure.
(g) Intervention
In any action under this section, the United States or the State,
or both, if not a party may intervene as a matter of right. For
other provisions regarding intervention, see section 9613 of this
title.
(h) Other rights
This chapter does not affect or otherwise impair the rights of
any person under Federal, State, or common law, except with respect
to the timing of review as provided in section 9613(h) of this
title or as otherwise provided in section 9658 of this title
(relating to actions under State law).
(i) Definitions
The terms used in this section shall have the same meanings as
when used in subchapter I of this chapter.
-SOURCE-
(Pub. L. 96-510, title III, Sec. 310, as added Pub. L. 99-499,
title II, Sec. 206, Oct. 17, 1986, 100 Stat. 1703.)
-REFTEXT-
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsec. (d)(2), is
title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795,
which is classified generally to chapter 82 (Sec. 6901 et seq.) of
this title. For complete classification of this Act to the Code,
see Short Title note set out under section 6901 of this title and
Tables.
The Federal Rules of Civil Procedure, referred to in subsec. (f),
are set out in the Appendix to Title 28, Judiciary and Judicial
Procedure.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 9613 of this title.
-End-
-CITE-
42 USC Sec. 9660 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9660. Research, development, and demonstration
-STATUTE-
(a) Hazardous substance research and training
(1) Authorities of Secretary
The Secretary of Health and Human Services (hereinafter in this
subsection referred to as the Secretary), in consultation with
the Administrator, shall establish and support a basic research
and training program (through grants, cooperative agreements, and
contracts) consisting of the following:
(A) Basic research (including epidemiologic and ecologic
studies) which may include each of the following:
(i) Advanced techniques for the detection, assessment, and
evaluation of the effects on human health of hazardous
substances.
(ii) Methods to assess the risks to human health presented
by hazardous substances.
(iii) Methods and technologies to detect hazardous
substances in the environment and basic biological, chemical,
and physical methods to reduce the amount and toxicity of
hazardous substances.
(B) Training, which may include each of the following:
(i) Short courses and continuing education for State and
local health and environment agency personnel and other
personnel engaged in the handling of hazardous substances, in
the management of facilities at which hazardous substances
are located, and in the evaluation of the hazards to human
health presented by such facilities.
(ii) Graduate or advanced training in environmental and
occupational health and safety and in the public health and
engineering aspects of hazardous waste control.
(iii) Graduate training in the geosciences, including
hydrogeology, geological engineering, geophysics,
geochemistry, and related fields necessary to meet
professional personnel needs in the public and private
sectors and to effectuate the purposes of this chapter.
(2) Director of NIEHS
The Director of the National Institute for Environmental Health
Sciences shall cooperate fully with the relevant Federal agencies
referred to in subparagraph (A) of paragraph (5) in carrying out
the purposes of this section.
(3) Recipients of grants, etc.
A grant, cooperative agreement, or contract may be made or
entered into under paragraph (1) with an accredited institution
of higher education. The institution may carry out the research
or training under the grant, cooperative agreement, or contract
through contracts, including contracts with any of the following:
(A) Generators of hazardous wastes.
(B) Persons involved in the detection, assessment,
evaluation, and treatment of hazardous substances.
(C) Owners and operators of facilities at which hazardous
substances are located.
(D) State and local governments.
(4) Procedures
In making grants and entering into cooperative agreements and
contracts under this subsection, the Secretary shall act through
the Director of the National Institute for Environmental Health
Sciences. In considering the allocation of funds for training
purposes, the Director shall ensure that at least one grant,
cooperative agreement, or contract shall be awarded for training
described in each of clauses (i), (ii), and (iii) of paragraph
(1)(B). Where applicable, the Director may choose to operate
training activities in cooperation with the Director of the
National Institute for Occupational Safety and Health. The
procedures applicable to grants and contracts under title IV of
the Public Health Service Act [42 U.S.C. 281 et seq.] shall be
followed under this subsection.
(5) Advisory council
To assist in the implementation of this subsection and to aid
in the coordination of research and demonstration and training
activities funded from the Fund under this section, the Secretary
shall appoint an advisory council (hereinafter in this subsection
referred to as the "Advisory Council") which shall consist of
representatives of the following:
(A) The relevant Federal agencies.
(B) The chemical industry.
(C) The toxic waste management industry.
(D) Institutions of higher education.
(E) State and local health and environmental agencies.
(F) The general public.
(6) Planning
Within nine months after October 17, 1986, the Secretary,
acting through the Director of the National Institute for
Environmental Health Sciences, shall issue a plan for the
implementation of paragraph (1). The plan shall include
priorities for actions under paragraph (1) and include research
and training relevant to scientific and technological issues
resulting from site specific hazardous substance response
experience. The Secretary shall, to the maximum extent
practicable, take appropriate steps to coordinate program
activities under this plan with the activities of other Federal
agencies in order to avoid duplication of effort. The plan shall
be consistent with the need for the development of new
technologies for meeting the goals of response actions in
accordance with the provisions of this chapter. The Advisory
Council shall be provided an opportunity to review and comment on
the plan and priorities and assist appropriate coordination among
the relevant Federal agencies referred to in subparagraph (A) of
paragraph (5).
(b) Alternative or innovative treatment technology research and
demonstration program
(1) Establishment
The Administrator is authorized and directed to carry out a
program of research, evaluation, testing, development, and
demonstration of alternative or innovative treatment technologies
(hereinafter in this subsection referred to as the "program")
which may be utilized in response actions to achieve more
permanent protection of human health and welfare and the
environment.
(2) Administration
The program shall be administered by the Administrator, acting
through an office of technology demonstration and shall be
coordinated with programs carried out by the Office of Solid
Waste and Emergency Response and the Office of Research and
Development.
(3) Contracts and grants
In carrying out the program, the Administrator is authorized to
enter into contracts and cooperative agreements with, and make
grants to, persons, public entities, and nonprofit private
entities which are exempt from tax under section 501(c)(3) of
title 26. The Administrator shall, to the maximum extent
possible, enter into appropriate cost sharing arrangements under
this subsection.
(4) Use of sites
In carrying out the program, the Administrator may arrange for
the use of sites at which a response may be undertaken under
section 9604 of this title for the purposes of carrying out
research, testing, evaluation, development, and demonstration
projects. Each such project shall be carried out under such terms
and conditions as the Administrator shall require to assure the
protection of human health and the environment and to assure
adequate control by the Administrator of the research, testing,
evaluation, development, and demonstration activities at the
site.
(5) Demonstration assistance
(A) Program components
The demonstration assistance program shall include the
following:
(i) The publication of a solicitation and the evaluation of
applications for demonstration projects utilizing alternative
or innovative technologies.
(ii) The selection of sites which are suitable for the
testing and evaluation of innovative technologies.
(iii) The development of detailed plans for innovative
technology demonstration projects.
(iv) The supervision of such demonstration projects and the
providing of quality assurance for data obtained.
(v) The evaluation of the results of alternative innovative
technology demonstration projects and the determination of
whether or not the technologies used are effective and
feasible.
(B) Solicitation
Within 90 days after October 17, 1986, and no less often than
once every 12 months thereafter, the Administrator shall
publish a solicitation for innovative or alternative
technologies at a stage of development suitable for full-scale
demonstrations at sites at which a response action may be
undertaken under section 9604 of this title. The purpose of any
such project shall be to demonstrate the use of an alternative
or innovative treatment technology with respect to hazardous
substances or pollutants or contaminants which are located at
the site or which are to be removed from the site. The
solicitation notice shall prescribe information to be included
in the application, including technical and economic data
derived from the applicant's own research and development
efforts, and other information sufficient to permit the
Administrator to assess the technology's potential and the
types of remedial action to which it may be applicable.
(C) Applications
Any person and any public or private nonprofit entity may
submit an application to the Administrator in response to the
solicitation. The application shall contain a proposed
demonstration plan setting forth how and when the project is to
be carried out and such other information as the Administrator
may require.
(D) Project selection
In selecting technologies to be demonstrated, the
Administrator shall fully review the applications submitted and
shall consider at least the criteria specified in paragraph
(7). The Administrator shall select or refuse to select a
project for demonstration under this subsection within 90 days
of receiving the completed application for such project. In the
case of a refusal to select the project, the Administrator
shall notify the applicant within such 90-day period of the
reasons for his refusal.
(E) Site selection
The Administrator shall propose 10 sites at which a response
may be undertaken under section 9604 of this title to be the
location of any demonstration project under this subsection
within 60 days after the close of the public comment period.
After an opportunity for notice and public comment, the
Administrator shall select such sites and projects. In
selecting any such site, the Administrator shall take into
account the applicant's technical data and preferences either
for onsite operation or for utilizing the site as a source of
hazardous substances or pollutants or contaminants to be
treated offsite.
(F) Demonstration plan
Within 60 days after the selection of the site under this
paragraph to be the location of a demonstration project, the
Administrator shall establish a final demonstration plan for
the project, based upon the demonstration plan contained in the
application for the project. Such plan shall clearly set forth
how and when the demonstration project will be carried out.
(G) Supervision and testing
Each demonstration project under this subsection shall be
performed by the applicant, or by a person satisfactory to the
applicant, under the supervision of the Administrator. The
Administrator shall enter into a written agreement with each
applicant granting the Administrator the responsibility and
authority for testing procedures, quality control, monitoring,
and other measurements necessary to determine and evaluate the
results of the demonstration project. The Administrator may pay
the costs of testing, monitoring, quality control, and other
measurements required by the Administrator to determine and
evaluate the results of the demonstration project, and the
limitations established by subparagraph (J) shall not apply to
such costs.
(H) Project completion
Each demonstration project under this subsection shall be
completed within such time as is established in the
demonstration plan.
(I) Extensions
The Administrator may extend any deadline established under
this paragraph by mutual agreement with the applicant
concerned.
(J) Funding restrictions
The Administrator shall not provide any Federal assistance
for any part of a full-scale field demonstration project under
this subsection to any applicant unless such applicant can
demonstrate that it cannot obtain appropriate private financing
on reasonable terms and conditions sufficient to carry out such
demonstration project without such Federal assistance. The
total Federal funds for any full-scale field demonstration
project under this subsection shall not exceed 50 percent of
the total cost of such project estimated at the time of the
award of such assistance. The Administrator shall not expend
more than $10,000,000 for assistance under the program in any
fiscal year and shall not expend more than $3,000,000 for any
single project.
(6) Field demonstrations
In carrying out the program, the Administrator shall initiate
or cause to be initiated at least 10 field demonstration projects
of alternative or innovative treatment technologies at sites at
which a response may be undertaken under section 9604 of this
title, in fiscal year 1987 and each of the succeeding three
fiscal years. If the Administrator determines that 10 field
demonstration projects under this subsection cannot be initiated
consistent with the criteria set forth in paragraph (7) in any of
such fiscal years, the Administrator shall transmit to the
appropriate committees of Congress a report explaining the
reasons for his inability to conduct such demonstration projects.
(7) Criteria
In selecting technologies to be demonstrated under this
subsection, the Administrator shall, consistent with the
protection of human health and the environment, consider each of
the following criteria:
(A) The potential for contributing to solutions to those
waste problems which pose the greatest threat to human health,
which cannot be adequately controlled under present
technologies, or which otherwise pose significant management
difficulties.
(B) The availability of technologies which have been
sufficiently developed for field demonstration and which are
likely to be cost-effective and reliable.
(C) The availability and suitability of sites for
demonstrating such technologies, taking into account the
physical, biological, chemical, and geological characteristics
of the sites, the extent and type of contamination found at the
site, and the capability to conduct demonstration projects in
such a manner as to assure the protection of human health and
the environment.
(D) The likelihood that the data to be generated from the
demonstration project at the site will be applicable to other
sites.
(8) Technology transfer
In carrying out the program, the Administrator shall conduct a
technology transfer program including the development,
collection, evaluation, coordination, and dissemination of
information relating to the utilization of alternative or
innovative treatment technologies for response actions. The
Administrator shall establish and maintain a central reference
library for such information. The information maintained by the
Administrator shall be made available to the public, subject to
the provisions of section 552 of title 5 and section 1905 of
title 18, and to other Government agencies in a manner that will
facilitate its dissemination; except, that upon a showing
satisfactory to the Administrator by any person that any
information or portion thereof obtained under this subsection by
the Administrator directly or indirectly from such person, would,
if made public, divulge -
(A) trade secrets; or
(B) other proprietary information of such person,
the Administrator shall not disclose such information and
disclosure thereof shall be punishable under section 1905 of
title 18. This subsection is not authority to withhold
information from Congress or any committee of Congress upon the
request of the chairman of such committee.
(9) Training
The Administrator is authorized and directed to carry out,
through the Office of Technology Demonstration, a program of
training and an evaluation of training needs for each of the
following:
(A) Training in the procedures for the handling and removal
of hazardous substances for employees who handle hazardous
substances.
(B) Training in the management of facilities at which
hazardous substances are located and in the evaluation of the
hazards to human health presented by such facilities for State
and local health and environment agency personnel.
(10) Definition
For purposes of this subsection, the term "alternative or
innovative treatment technologies" means those technologies,
including proprietary or patented methods, which permanently
alter the composition of hazardous waste through chemical,
biological, or physical means so as to significantly reduce the
toxicity, mobility, or volume (or any combination thereof) of the
hazardous waste or contaminated materials being treated. The term
also includes technologies that characterize or assess the extent
of contamination, the chemical and physical character of the
contaminants, and the stresses imposed by the contaminants on
complex ecosystems at sites.
(c) Hazardous substance research
The Administrator may conduct and support, through grants,
cooperative agreements, and contracts, research with respect to the
detection, assessment, and evaluation of the effects on and risks
to human health of hazardous substances and detection of hazardous
substances in the environment. The Administrator shall coordinate
such research with the Secretary of Health and Human Services,
acting through the advisory council established under this section,
in order to avoid duplication of effort.
(d) University hazardous substance research centers
(1) Grant program
The Administrator shall make grants to institutions of higher
learning to establish and operate not fewer than 5 hazardous
substance research centers in the United States. In carrying out
the program under this subsection, the Administrator should seek
to have established and operated 10 hazardous substance research
centers in the United States.
(2) Responsibilities of centers
The responsibilities of each hazardous substance research
center established under this subsection shall include, but not
be limited to, the conduct of research and training relating to
the manufacture, use, transportation, disposal, and management of
hazardous substances and publication and dissemination of the
results of such research.
(3) Applications
Any institution of higher learning interested in receiving a
grant under this subsection shall submit to the Administrator an
application in such form and containing such information as the
Administrator may require by regulation.
(4) Selection criteria
The Administrator shall select recipients of grants under this
subsection on the basis of the following criteria:
(A) The hazardous substance research center shall be located
in a State which is representative of the needs of the region
in which such State is located for improved hazardous waste
management.
(B) The grant recipient shall be located in an area which has
experienced problems with hazardous substance management.
(C) There is available to the grant recipient for carrying
out this subsection demonstrated research resources.
(D) The capability of the grant recipient to provide
leadership in making national and regional contributions to the
solution of both long-range and immediate hazardous substance
management problems.
(E) The grant recipient shall make a commitment to support
ongoing hazardous substance research programs with budgeted
institutional funds of at least $100,000 per year.
(F) The grant recipient shall have an interdisciplinary staff
with demonstrated expertise in hazardous substance management
and research.
(G) The grant recipient shall have a demonstrated ability to
disseminate results of hazardous substance research and
educational programs through an interdisciplinary continuing
education program.
(H) The projects which the grant recipient proposes to carry
out under the grant are necessary and appropriate.
(5) Maintenance of effort
No grant may be made under this subsection in any fiscal year
unless the recipient of such grant enters into such agreements
with the Administrator as the Administrator may require to ensure
that such recipient will maintain its aggregate expenditures from
all other sources for establishing and operating a regional
hazardous substance research center and related research
activities at or above the average level of such expenditures in
its 2 fiscal years preceding October 17, 1986.
(6) Federal share
The Federal share of a grant under this subsection shall not
exceed 80 percent of the costs of establishing and operating the
regional hazardous substance research center and related research
activities carried out by the grant recipient.
(7) Limitation on use of funds
No funds made available to carry out this subsection shall be
used for acquisition of real property (including buildings) or
construction of any building.
(8) Administration through the Office of the Administrator
Administrative responsibility for carrying out this subsection
shall be in the Office of the Administrator.
(9) Equitable distribution of funds
The Administrator shall allocate funds made available to carry
out this subsection equitably among the regions of the United
States.
(10) Technology transfer activities
Not less than five percent of the funds made available to carry
out this subsection for any fiscal year shall be available to
carry out technology transfer activities.
(e) Report to Congress
At the time of the submission of the annual budget request to
Congress, the Administrator shall submit to the appropriate
committees of the House of Representatives and the Senate and to
the advisory council established under subsection (a) of this
section, a report on the progress of the research, development, and
demonstration program authorized by subsection (b) of this section,
including an evaluation of each demonstration project completed in
the preceding fiscal year, findings with respect to the efficacy of
such demonstrated technologies in achieving permanent and
significant reductions in risk from hazardous wastes, the costs of
such demonstration projects, and the potential applicability of,
and projected costs for, such technologies at other hazardous
substance sites.
(f) Saving provision
Nothing in this section shall be construed to affect the
provisions of the Solid Waste Disposal Act [42 U.S.C. 6901 et
seq.].
(g) Small business participation
The Administrator shall ensure, to the maximum extent
practicable, an adequate opportunity for small business
participation in the program established by subsection (b) of this
section.
-SOURCE-
(Pub. L. 96-510, title III, Sec. 311, as added Pub. L. 99-499,
title II, Sec. 209(b), Oct. 17, 1986, 100 Stat. 1708; amended Pub.
L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095.)
-REFTEXT-
REFERENCES IN TEXT
The Public Health Service Act, referred to in subsec. (a)(4), is
act July 1, 1944, ch. 373, 58 Stat. 682, as amended. Title IV of
the Public Health Service Act is classified generally to subchapter
III (Sec. 281 et seq.) of chapter 6A of this title. For complete
classification of this Act to the Code, see Short Title note set
out under section 201 of this title and Tables.
The Solid Waste Disposal Act, referred to in subsec. (f), is
title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795,
which is classified generally to chapter 82 (Sec. 6901 et seq.) of
this title. For complete classification of this Act to the Code,
see Short Title note set out under section 6901 of this title and
Tables.
-MISC1-
AMENDMENTS
1986 - Subsec. (b)(3). Pub. L. 99-514 substituted "Internal
Revenue Code of 1986" for "Internal Revenue Code of 1954", which
for purposes of codification was translated as "title 26" thus
requiring no change in text.
GULF COAST HAZARDOUS SUBSTANCE RESEARCH, DEVELOPMENT, AND
DEMONSTRATION CENTER
Section 118(l) of Pub. L. 99-499 provided that:
"(1) Establishment of hazardous substance research, development,
and demonstration center. - The Administrator shall establish a
hazardous substance research, development, and demonstration center
(hereinafter in this subsection referred to as the 'Center') for
the purpose of conducting research to aid in more effective
hazardous substance response and waste management throughout the
Gulf Coast.
"(2) Purposes of the center. - The Center shall carry out a
program of research, evaluation, testing, development, and
demonstration of alternative or innovative technologies which may
be utilized in response actions or in normal handling of hazardous
wastes to achieve better protection of human health and the
environment.
"(3) Operation of center. - (A) For purposes of operating the
Center, the Administrator is authorized to enter into contracts and
cooperative agreements with, and make grants to, a university
related institute involved with the improvement of waste
management. Such institute shall be located in Jefferson County,
Texas.
"(B) The Center shall be authorized to make grants, accept
contributions, and enter into agreements with universities located
in the States of Texas, Louisiana, Mississippi, Alabama, and
Florida in order to carry out the purposes of the Center.
"(4) Authorization of appropriations. - There are authorized to
be appropriated to the Administrator for purposes of carrying out
this subsection for fiscal years beginning after September 30,
1986, not more than $5,000,000."
PACIFIC NORTHWEST HAZARDOUS SUBSTANCE RESEARCH, DEVELOPMENT, AND
DEMONSTRATION CENTER
Section 118(o) of Pub. L. 99-499 provided that:
"(1) Establishment. - The Administrator shall establish a
hazardous substance research, development, and demonstration center
(hereinafter in this subsection referred to as the 'Center') for
the purpose of conducting research to aid in more effective
hazardous substance response in the Pacific Northwest.
"(2) Purposes of center. - The Center shall carry out a program
of research, evaluation, testing, development, and demonstration of
alternative or innovative technologies which may be utilized in
response actions to achieve more permanent protection of human
health and welfare and the environment.
"(3) Operation of center. -
"(A) Nonprofit entity. - For the purposes of operating the
Center, the Administrator is authorized to enter into contracts
and cooperative agreements with, and make grants to, a nonprofit
private entity as defined in section 201(i) of Public Law 96-517
[probably means section 201(i) of Title 35, Patents, which was
enacted by section 6(a) of Pub. L. 96-517, Dec. 12, 1980, 94
Stat. 3020] which entity shall agree to provide the basic
technical and management personnel. Such nonprofit private entity
shall also agree to provide at least two permanent research
facilities, one of which shall be located in Benton County,
Washington, and one of which shall be located in Clallam County,
Washington.
"(B) Authorities. - The Center shall be authorized to make
grants, accept contributions, and enter into agreements with
universities located in the States of Washington, Oregon, Idaho,
and Montana in order to carry out the purposes of the Center.
"(4) Hazardous waste research at the hanford site. -
"(A) Interagency agreements. - The Administrator and the
Secretary of Energy are authorized to enter into interagency
agreements with one another for the purpose of providing for
research, evaluation, testing, development, and demonstration
into alternative or innovative technologies to characterize and
assess the nature and extent of hazardous waste (including
radioactive mixed waste) contamination at the Hanford site, in
the State of Washington.
"(B) Funding. - There is authorized to be appropriated to the
Secretary of Energy for purposes of carrying out this paragraph
for fiscal years beginning after September 30, 1986, not more
than $5,000,000. All sums appropriated under this subparagraph
shall be provided to the Administrator by the Secretary of
Energy, pursuant to the interagency agreement entered into under
subparagraph (A), for the purpose of the Administrator entering
into contracts and cooperative agreements with, and making grants
to, the Center in order to carry out the research, evaluation,
testing, development, and demonstration described in paragraph
(1).
"(5) Authorization of appropriations. - There is authorized to be
appropriated to the Administrator for purposes of carrying out this
subsection (other than paragraph (4)) for fiscal years beginning
after September 30, 1986, not more than $5,000,000."
CONGRESSIONAL STATEMENT OF PURPOSE
Section 209(a) of Pub. L. 99-499 provided that: "The purposes of
this section [enacting this section] are as follows:
"(1) To establish a comprehensive and coordinated Federal
program of research, development, demonstration, and training for
the purpose of promoting the development of alternative and
innovative treatment technologies that can be used in response
actions under the CERCLA program, to provide incentives for the
development and use of such technologies, and to improve the
scientific capability to assess, detect and evaluate the effects
on and risks to human health from hazardous substances.
"(2) To establish a basic university research and education
program within the Department of Health and Human Services and a
research, demonstration, and training program within the
Environmental Protection Agency.
"(3) To reserve certain funds from the Hazardous Substance
Trust Fund to support a basic research program within the
Department of Health and Human Services, and an applied and
developmental research program within the Environmental
Protection Agency.
"(4) To enhance the Environmental Protection Agency's internal
research capabilities related to CERCLA activities, including
site assessment and technology evaluation.
"(5) To provide incentives for the development of alternative
and innovative treatment technologies in a manner that
supplements or coordinates with, but does not compete with or
duplicate, private sector development of such technologies."
TERMINATION OF ADVISORY COUNCILS
Advisory councils established after Jan. 5, 1973, to terminate
not later than the expiration of the 2-year period beginning on the
date of their establishment, unless, in the case of a council
established by the President or an officer of the Federal
Government, such council is renewed by appropriate action prior to
the expiration of such 2-year period, or in the case of a council
established by the Congress, its duration is otherwise provided by
law. See sections 3(2) and 14 of Pub. L. 92-463, Oct. 6, 1972, 86
Stat. 770, 776, set out in the Appendix to Title 5, Government
Organization and Employees.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9611, 9619, 9659 of this
title; title 10 section 2702.
-End-
-CITE-
42 USC Sec. 9660a 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9660a. Grant program
-STATUTE-
(1) Grant purposes
Grants for the training and education of workers who are or may
be engaged in activities related to hazardous waste removal or
containment or emergency response may be made under this section.
(2) Administration
Grants under this section shall be administered by the National
Institute of Environmental Health Sciences.
(3) Grant recipients
Grants shall be awarded to nonprofit organizations which
demonstrate experience in implementing and operating worker health
and safety training and education programs and demonstrate the
ability to reach and involve in training programs target
populations of workers who are or will be engaged in hazardous
waste removal or containment or emergency response operations.
-SOURCE-
(Pub. L. 99-499, title I, Sec. 126(g), Oct. 17, 1986, 100 Stat.
1692.)
-COD-
CODIFICATION
Section was enacted as part of the Superfund Amendments and
Reauthorization Act of 1986, and not as part of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
which comprises this chapter.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9611, 9619 of this title;
title 49 section 5115; title 50 section 2731.
-End-
-CITE-
42 USC Sec. 9661 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9661. Love Canal property acquisition
-STATUTE-
(a) Acquisition of property in Emergency Declaration Area
The Administrator of the Environmental Protection Agency
(hereinafter referred to as the "Administrator") may make grants
not to exceed $2,500,000 to the State of New York (or to any duly
constituted public agency or authority thereof) for purposes of
acquisition of private property in the Love Canal Emergency
Declaration Area. Such acquisition shall include (but shall not be
limited to) all private property within the Emergency Declaration
Area, including non-owner occupied residential properties,
commercial, industrial, public, religious, non-profit, and vacant
properties.
(b) Procedures for acquisition
No property shall be acquired pursuant to this section unless the
property owner voluntarily agrees to such acquisition. Compensation
for any property acquired pursuant to this section shall be based
upon the fair market value of the property as it existed prior to
the emergency declaration. Valuation procedures for property
acquired with funds provided under this section shall be in
accordance with those set forth in the agreement entered into
between the New York State Disaster Preparedness Commission and the
Love Canal Revitalization Agency on October 9, 1980.
(c) State ownership
The Administrator shall not provide any funds under this section
for the acquisition of any properties pursuant to this section
unless a public agency or authority of the State of New York first
enters into a cooperative agreement with the Administrator
providing assurances deemed adequate by the Administrator that the
State or an agency created under the laws of the State shall take
title to the properties to be so acquired.
(d) Maintenance of property
The Administrator shall enter into a cooperative agreement with
an appropriate public agency or authority of the State of New York
under which the Administrator shall maintain or arrange for the
maintenance of all properties within the Emergency Declaration Area
that have been acquired by any public agency or authority of the
State. Ninety (90) percent of the costs of such maintenance shall
be paid by the Administrator. The remaining portion of such costs
shall be paid by the State (unless a credit is available under
section 9604(c) of this title). The Administrator is authorized, in
his discretion, to provide technical assistance to any public
agency or authority of the State of New York in order to implement
the recommendations of the habitability and land-use study in order
to put the land within the Emergency Declaration Area to its best
use.
(e) Habitability and land use study
The Administrator shall conduct or cause to be conducted a
habitability and land-use study. The study shall -
(1) assess the risks associated with inhabiting of the Love
Canal Emergency Declaration Area;
(2) compare the level of hazardous waste contamination in that
Area to that present in other comparable communities; and
(3) assess the potential uses of the land within the Emergency
Declaration Area, including but not limited to residential,
industrial, commercial and recreational, and the risks associated
with such potential uses.
The Administrator shall publish the findings of such study and
shall work with the State of New York to develop recommendations
based upon the results of such study.
(f) Funding
For purposes of section 9611 of this title [and 9631(c) )1(! of
this title], the expenditures authorized by this section shall be
treated as a cost specified in section 9611(c) of this title.
(g) Response
The provisions of this section shall not affect the
implementation of other response actions within the Emergency
Declaration Area that the Administrator has determined (before
October 17, 1986) to be necessary to protect the public health or
welfare or the environment.
(h) Definitions
For purposes of this section:
(1) Emergency Declaration Area
The terms "Emergency Declaration Area" and "Love Canal
Emergency Declaration Area" mean the Emergency Declaration Area
as defined in section 950, paragraph (2) of the General Municipal
Law of the State of New York, Chapter 259, Laws of 1980, as in
effect on October 17, 1986.
(2) Private property
As used in subsection (a) of this section, the term "private
property" means all property which is not owned by a department,
agency, or instrumentality of -
(A) the United States, or
(B) the State of New York (or any public agency or authority
thereof).
-SOURCE-
(Pub. L. 96-510, title III, Sec. 312, as added Pub. L. 99-499,
title II, Sec. 213(b), Oct. 17, 1986, 100 Stat. 1727.)
-REFTEXT-
REFERENCES IN TEXT
Section 9631 of this title, referred to in subsec. (f), was
repealed by Pub. L. 99-499, title V, Sec. 517(c)(1), Oct. 17, 1986,
100 Stat. 1774.
-MISC1-
LOVE CANAL PROPERTY ACQUISITION; CONGRESSIONAL FINDINGS
Section 213(a) of Pub. L. 99-499 provided that:
"(1) The area known as Love Canal located in the city of Niagara
Falls and the town of Wheatfield, New York, was the first toxic
waste site to receive national attention. As a result of that
attention Congress investigated the problems associated with toxic
waste sites and enacted CERCLA [Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601
et seq.)] to deal with these problems.
"(2) Because Love Canal came to the Nation's attention prior to
the passage of CERCLA and because the fund under CERCLA was not
available to compensate for all of the hardships endured by the
citizens in the area, Congress has determined that special
provisions are required. These provisions do not affect the
lawfulness, implementation, or selection of any other response
actions at Love Canal or at any other facilities."
COORDINATION OF TITLES I TO IV OF PUB. L. 99-499
Any provision of titles I to IV of Pub. L. 99-499, imposing any
tax, premium, or fee; establishing any trust fund; or authorizing
expenditures from any trust fund, to have no force or effect, see
section 531 of Pub. L. 99-499, set out as a note under section 1 of
Title 26, Internal Revenue Code.
-FOOTNOTE-
)1(! See References in Text note below.
-End-
-CITE-
42 USC Sec. 9662 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER III - MISCELLANEOUS PROVISIONS
-HEAD-
Sec. 9662. Limitation on contract and borrowing authority
-STATUTE-
Any authority provided by this Act, including any amendment made
by this Act, to enter into contracts to obligate the United States
or to incur indebtedness for the repayment of which the United
States is liable shall be effective only to such extent or in such
amounts as are provided in appropriation Acts.
-SOURCE-
(Pub. L. 99-499, Sec. 3, Oct. 17, 1986, 100 Stat. 1614.)
-REFTEXT-
REFERENCES IN TEXT
This Act, referred to in text, is Pub. L. 99-499, Oct. 17, 1986,
100 Stat. 1613, as amended, known as the Superfund Amendments and
Reauthorization Act of 1986. For complete classification of this
Act to the Code, see Short Title of 1986 Amendment note set out
under section 9601 of this title and Tables.
-COD-
CODIFICATION
Section was enacted as part of the Superfund Amendments and
Reauthorization Act of 1986, and not as part of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
which comprises this chapter.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 9619 of this title.
-End-
-CITE-
42 USC SUBCHAPTER IV - POLLUTION INSURANCE 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER IV - POLLUTION INSURANCE
-HEAD-
SUBCHAPTER IV - POLLUTION INSURANCE
-End-
-CITE-
42 USC Sec. 9671 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER IV - POLLUTION INSURANCE
-HEAD-
Sec. 9671. Definitions
-STATUTE-
As used in this subchapter -
(1) Insurance
The term "insurance" means primary insurance, excess insurance,
reinsurance, surplus lines insurance, and any other arrangement
for shifting and distributing risk which is determined to be
insurance under applicable State or Federal law.
(2) Pollution liability
The term "pollution liability" means liability for injuries
arising from the release of hazardous substances or pollutants or
contaminants.
(3) Risk retention group
The term "risk retention group" means any corporation or other
limited liability association taxable as a corporation, or as an
insurance company, formed under the laws of any State -
(A) whose primary activity consists of assuming and spreading
all, or any portion, of the pollution liability of its group
members;
(B) which is organized for the primary purpose of conducting
the activity described under subparagraph (A);
(C) which is chartered or licensed as an insurance company
and authorized to engage in the business of insurance under the
laws of any State; and
(D) which does not exclude any person from membership in the
group solely to provide for members of such a group a
competitive advantage over such a person.
(4) Purchasing group
The term "purchasing group" means any group of persons which
has as one of its purposes the purchase of pollution liability
insurance on a group basis.
(5) State
The term "State" means any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam,
American Samoa, the Virgin Islands, the Commonwealth of the
Northern Marianas, and any other territory or possession over
which the United States has jurisdiction.
-SOURCE-
(Pub. L. 96-510, title IV, Sec. 401, as added Pub. L. 99-499, title
II, Sec. 210(a), formerly Sec. 210, Oct. 17, 1986, 100 Stat. 1716;
renumbered Sec. 210(a), Pub. L. 99-563, Sec. 11(c)(1), Oct. 27,
1986, 100 Stat. 3177.)
-MISC1-
STATE POWERS AND AUTHORITIES UNDER RISK RETENTION AMENDMENTS OF
1986
Section 210(b) of Pub. L. 99-499, as added by Pub. L. 99-563,
Sec. 11(c)(1), Oct. 27, 1986, 100 Stat. 3177, provided that: "For
purposes of subsection (a) of this section [enacting this
subchapter], the powers and authorities of States addressed by the
Risk Retention Amendments of 1986 [Pub. L. 99-563, see Short Title
of 1986 Amendment note set out under section 3901 of Title 15,
Commerce and Trade] are in addition to those of this Act [see Short
Title of 1986 Amendment note set out under section 9601 of this
title]."
-End-
-CITE-
42 USC Sec. 9672 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER IV - POLLUTION INSURANCE
-HEAD-
Sec. 9672. State laws; scope of subchapter
-STATUTE-
(a) State laws
Nothing in this subchapter shall be construed to affect either
the tort law or the law governing the interpretation of insurance
contracts of any State. The definitions of pollution liability and
pollution liability insurance under any State law shall not be
applied for the purposes of this subchapter, including recognition
or qualification of risk retention groups or purchasing groups.
(b) Scope of subchapter
The authority to offer or to provide insurance under this
subchapter shall be limited to coverage of pollution liability
risks and this subchapter does not authorize a risk retention group
or purchasing group to provide coverage of any other line of
insurance.
-SOURCE-
(Pub. L. 96-510, title IV, Sec. 402, as added Pub. L. 99-499, title
II, Sec. 210(a), formerly Sec. 210, Oct. 17, 1986, 100 Stat. 1716;
renumbered Sec. 210(a), Pub. L. 99-563, Sec. 11(c)(1), Oct. 27,
1986, 100 Stat. 3177.)
-End-
-CITE-
42 USC Sec. 9673 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER IV - POLLUTION INSURANCE
-HEAD-
Sec. 9673. Risk retention groups
-STATUTE-
(a) Exemption
Except as provided in this section, a risk retention group shall
be exempt from the following:
(1) A State law, rule, or order which makes unlawful, or
regulates, directly or indirectly, the operation of a risk
retention group.
(2) A State law, rule, or order which requires or permits a
risk retention group to participate in any insurance insolvency
guaranty association to which an insurer licensed in the State is
required to belong.
(3) A State law, rule, or order which requires any insurance
policy issued to a risk retention group or any member of the
group to be countersigned by an insurance agent or broker
residing in the State.
(4) A State law, rule, or order which otherwise discriminates
against a risk retention group or any of its members.
(b) Exceptions
(1) State laws generally applicable
Nothing in subsection (a) of this section shall be construed to
affect the applicability of State laws generally applicable to
persons or corporations. The State in which a risk retention
group is chartered may regulate the formation and operation of
the group.
(2) State regulations not subject to exemption
Subsection (a) of this section shall not apply to any State law
which requires a risk retention group to do any of the following:
(A) Comply with the unfair claim settlement practices law of
the State.
(B) Pay, on a nondiscriminatory basis, applicable premium and
other taxes which are levied on admitted insurers and surplus
line insurers, brokers, or policyholders under the laws of the
State.
(C) Participate, on a nondiscriminatory basis, in any
mechanism established or authorized under the law of the State
for the equitable apportionment among insurers of pollution
liability insurance losses and expenses incurred on policies
written through such mechanism.
(D) Submit to the appropriate authority reports and other
information required of licensed insurers under the laws of a
State relating solely to pollution liability insurance losses
and expenses.
(E) Register with and designate the State insurance
commissioner as its agent solely for the purpose of receiving
service of legal documents or process.
(F) Furnish, upon request, such commissioner a copy of any
financial report submitted by the risk retention group to the
commissioner of the chartering or licensing jurisdiction.
(G) Submit to an examination by the State insurance
commissioner in any State in which the group is doing business
to determine the group's financial condition, if -
(i) the commissioner has reason to believe the risk
retention group is in a financially impaired condition; and
(ii) the commissioner of the jurisdiction in which the
group is chartered has not begun or has refused to initiate
an examination of the group.
(H) Comply with a lawful order issued in a delinquency
proceeding commenced by the State insurance commissioner if the
commissioner of the jurisdiction in which the group is
chartered has failed to initiate such a proceeding after notice
of a finding of financial impairment under subparagraph (G).
(c) Application of exemptions
The exemptions specified in subsection (a) of this section apply
to -
(1) pollution liability insurance coverage provided by a risk
retention group for -
(A) such group; or
(B) any person who is a member of such group;
(2) the sale of pollution liability insurance coverage for a
risk retention group; and
(3) the provision of insurance related services or management
services for a risk retention group or any member of such a
group.
(d) Agents or brokers
A State may require that a person acting, or offering to act, as
an agent or broker for a risk retention group obtain a license from
that State, except that a State may not impose any qualification or
requirement which discriminates against a nonresident agent or
broker.
-SOURCE-
(Pub. L. 96-510, title IV, Sec. 403, as added Pub. L. 99-499, title
II, Sec. 210(a), formerly Sec. 210, Oct. 17, 1986, 100 Stat. 1717;
renumbered Sec. 210(a), Pub. L. 99-563, Sec. 11(c)(1), Oct. 27,
1986, 100 Stat. 3177.)
-End-
-CITE-
42 USC Sec. 9674 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER IV - POLLUTION INSURANCE
-HEAD-
Sec. 9674. Purchasing groups
-STATUTE-
(a) Exemption
Except as provided in this section, a purchasing group is exempt
from the following:
(1) A State law, rule, or order which prohibits the
establishment of a purchasing group.
(2) A State law, rule, or order which makes it unlawful for an
insurer to provide or offer to provide insurance on a basis
providing, to a purchasing group or its member, advantages, based
on their loss and expense experience, not afforded to other
persons with respect to rates, policy forms, coverages, or other
matters.
(3) A State law, rule, or order which prohibits a purchasing
group or its members from purchasing insurance on the group basis
described in paragraph (2) of this subsection.
(4) A State law, rule, or order which prohibits a purchasing
group from obtaining insurance on a group basis because the group
has not been in existence for a minimum period of time or because
any member has not belonged to the group for a minimum period of
time.
(5) A State law, rule, or order which requires that a
purchasing group must have a minimum number of members, common
ownership or affiliation, or a certain legal form.
(6) A State law, rule, or order which requires that a certain
percentage of a purchasing group must obtain insurance on a group
basis.
(7) A State law, rule, or order which requires that any
insurance policy issued to a purchasing group or any members of
the group be countersigned by an insurance agent or broker
residing in that State.
(8) A State law, rule, or order which otherwise discriminate
)1(! against a purchasing group or any of its members.
(b) Application of exemptions
The exemptions specified in subsection (a) of this section apply
to the following:
(1) Pollution liability insurance, and comprehensive general
liability insurance which includes this coverage, provided to -
(A) a purchasing group; or
(B) any person who is a member of a purchasing group.
(2) The sale of any one of the following to a purchasing group
or a member of the group:
(A) Pollution liability insurance and comprehensive general
liability coverage.
(B) Insurance related services.
(C) Management services.
(c) Agents or brokers
A State may require that a person acting, or offering to act, as
an agent or broker for a purchasing group obtain a license from
that State, except that a State may not impose any qualification or
requirement which discriminates against a nonresident agent or
broker.
-SOURCE-
(Pub. L. 96-510, title IV, Sec. 404, as added Pub. L. 99-499, title
II, Sec. 210(a), formerly Sec. 210, Oct. 17, 1986, 100 Stat. 1718;
renumbered Sec. 210(a), Pub. L. 99-563, Sec. 11(c)(1), Oct. 27,
1986, 100 Stat. 3177.)
-FOOTNOTE-
)1(! So in original. Probably should be "discriminates".
-End-
-CITE-
42 USC Sec. 9675 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER IV - POLLUTION INSURANCE
-HEAD-
Sec. 9675. Applicability of securities laws
-STATUTE-
(a) Ownership interests
The ownership interests of members of a risk retention group
shall be considered to be -
(1) exempted securities for purposes of section 77e of title 15
and for purposes of section 78l of title 15; and
(2) securities for purposes of the provisions of section 77q of
title 15 and the provisions of section 78j of title 15.
(b) Investment Company Act
A risk retention group shall not be considered to be an
investment company for purposes of the Investment Company Act of
1940 (15 U.S.C. 80a-1 et seq.).
(c) Blue sky law
The ownership interests of members in a risk retention group
shall not be considered securities for purposes of any State blue
sky law.
-SOURCE-
(Pub. L. 96-510, title IV, Sec. 405, as added Pub. L. 99-499, title
II, Sec. 210(a), formerly Sec. 210, Oct. 17, 1986, 100 Stat. 1719;
renumbered Sec. 210(a), Pub. L. 99-563, Sec. 11(c)(1), Oct. 27,
1986, 100 Stat. 3177.)
-REFTEXT-
REFERENCES IN TEXT
The Investment Company Act of 1940, referred to in subsec. (b),
is title I of act Aug. 22, 1940, ch. 686, 54 Stat. 789, as amended,
which is classified generally to subchapter I (Sec. 80a-1 et seq.)
of chapter 2D of Title 15, Commerce and Trade. For complete
classification of this Act to the Code, see section 80a-51 of Title
15 and Tables.
-End-
