SUBCHAPTER I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION
Sec. 9601. Definitions
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.
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\1\ So in original. Probably should be ``or.
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(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.
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\2\ So in original. Probably should be followed by a closing
parenthesis.
(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.].
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\3\ So in original. Probably should be ``mean.
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(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.
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\4\ So in original.
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(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.
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\5\ See References in Text note below.
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(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.
(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.)
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.
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.
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.
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.
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.
Section Referred to in Other Sections
This section is referred to in sections 300g-1, 6991, 6991b, 7274q,
9602, 9603, 9604, 9607, 9613, 9624, 9656, 11004 of this title; title 7
section 1985; title 10 sections 2692, 2701, 2703, 2707, 2708, 2810;
title 14 section 690; title 16 section 460lll; title 26 section 198;
title 33 section 2701.
Sec. 9602. Designation of additional hazardous substances and
establishment of reportable released quantities; regulations
(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.
(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.)
Amendments
1986--Subsec. (a). Pub. L. 99-499 inserted provisions setting
deadlines for promulgation of proposed and final regulations.
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.
Sec. 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
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.
(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.)
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.
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.
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.
Section Referred to in Other Sections
This section is referred to in sections 6937, 6991a, 9602, 9609,
9620, 9626, 11004 of this title.
Sec. 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
(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 Presidents
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.
---------------------------------------------------------------------------
\1\ So in original. Probably should be followed by a comma.
---------------------------------------------------------------------------
(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 the Davis-Bacon Act [40 U.S.C. 276a et seq.]. 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 276c 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 ATSDRs 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 employees 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.
(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.)
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.
The Davis-Bacon Act, referred to in subsec. (g)(1), is act Mar. 3,
1931, ch. 411, 46 Stat. 1494, as amended, which is classified generally
to sections 276a to 276a-5 of Title 40, Public Buildings, Property, and
Works. For complete classification of this Act to the Code, see Short
Title note set out under section 276a of Title 40 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.
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.
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.
Sec. 9605. National contingency plan
(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:
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\1\ See References in Text note below.
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(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.
(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.)
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.
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).
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.
Sec. 9606. Abatement actions
(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 Presidents 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.
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(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.)
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.
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.
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.
Sec. 9607. Liability
(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
States 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--
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\1\See References in Text note below.
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(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;
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\2\ See References in Text note below.
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(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 persons 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 persons 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 attorneys 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 purchasers 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.
(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.)
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.
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.
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.
Sec. 9608. Financial responsibility
(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.
(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.)
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.
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.
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.
Section Referred to in Other Sections
This section is referred to in section 9609 of this title.
Sec. 9609. Civil penalties and awards
(a) Class I administrative penalty
(1) Violations
A civil penalty of not more than $25,000 per violation may be
assessed by the President in the case of any of the following--
(A) A violation of the requirements of section 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 Presidents authority to enforce any provisions of
this chapter.
(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.)
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.
Section Referred to in Other Sections
This section is referred to in sections 9611, 9622 of this title.
Sec. 9610. Employee protection
(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 attorneys 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.
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\1\ So in original.
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(Pub. L. 96-510, title I, Sec. 110, Dec. 11, 1980, 94 Stat. 2787.)
