--- kind: "range" citation: "42 U.S.C. §§ 9601–9657" title: "42" from: "9601" to: "9657" count: 37 release: "119-102" url: "https://uscodex.org/usc/42/9601..9657" --- # §9601. Definitions For purpose of this subchapter— - (1) The term “act of God” means an unanticipated grave [natural disaster](/usc/42/18711.md?p=a-3) 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](#27) Environmental Protection Agency. - (3) The term “barrel” means forty-two [United States](#27) 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](#21) who presents a [claim](#4) for compensation under this chapter. - (6) The term “damages” means damages for injury or loss of [natural resources](#16) as set forth in section [9607(a)](/usc/42/9607.md?p=a) or [9611(b)](/usc/42/9611.md?p=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](/usc/42/300f.md) et seq.]) or as drinking water by one or more individuals. - (8) The term “environment” means (A) the [navigable waters](#15), the waters of the [contiguous zone](#30), and the ocean waters of which the [natural resources](#16) are under the exclusive management authority of the [United States](#27) under the Magnuson-Stevens Fishery Conservation and Management Act [[16 U.S.C. 1801](/usc/16/1801.md) et seq.], and (B) any other surface water, [ground water](#12), [drinking water supply](#7), land surface or subsurface strata, or ambient air within the [United States](#27) or under the jurisdiction of the [United States](#27). - (9) The term “facility” means (A) any [building](/usc/42/6881.md?p=i-3), structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned [treatment](#29) works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, [motor vehicle](/usc/42/13211.md?p=13), rolling stock, or aircraft, or (B) any site or area where a [hazardous substance](/usc/42/1397h.md?p=c-4) has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any [consumer product](/usc/42/6311.md?p=7) in consumer use or any [vessel](#28). - (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](/usc/33/1342.md)], (B) discharges resulting from circumstances identified and reviewed and made part of the public record with respect to a permit issued or [modified](/usc/42/7501.md?p=4) 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](#29) 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](/usc/33/1344.md)], (E) [releases](#22) in compliance with a legally enforceable final permit issued pursuant to section 3005(a) through (d) of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6925(a)](/usc/42/6925.md?p=a)–(d)] from a [hazardous waste](#29) [treatment](#29), storage, or [disposal](#29) [facility](#9) when such permit specifically identifies the [hazardous substances](/usc/42/1397h.md?p=c-4) and makes such substances subject to a [standard](/usc/42/1320d.md?p=7) of practice, control procedure or bioassay limitation or condition, or other control on the [hazardous substances](/usc/42/1397h.md?p=c-4) in such [releases](#22), (F) any [release](#22) in compliance with a legally enforceable permit issued under [section 1412 of title 33](/usc/33/1412.md) of[^1] [section 1413 of title 33](/usc/33/1413.md), (G) any injection of fluids authorized under Federal underground injection control [programs](/usc/42/274l–1.md?p=4) or [State](#27) [programs](/usc/42/274l–1.md?p=4) submitted for Federal approval (and not disapproved by the [Administrator](#2) of the Environmental Protection Agency) pursuant to part C of the Safe Drinking Water Act [[42 U.S.C. 300h](/usc/42/300h.md) et seq.], (H) any emission into the air subject to a permit or control regulation under [section 111](/usc/42/111.md) [[42 U.S.C. 7411](/usc/42/7411.md)], [section 112](/usc/42/112.md) [[42 U.S.C. 7412](/usc/42/7412.md)], title I part C [[42 U.S.C. 7470](/usc/42/7470.md) et seq.], title I part D [[42 U.S.C. 7501](/usc/42/7501.md) et seq.], or [State](#27) implementation plans submitted in accordance with section 110 of the Clean Air Act [[42 U.S.C. 7410](/usc/42/7410.md)] (and not disapproved by the [Administrator](#2) 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](#27) 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](/usc/42/1397h.md?p=c-4) into a publicly owned [treatment](#29) works when such [pollutant](/usc/42/1397h.md?p=c-4) is specified in and in compliance with applicable pretreatment [standards](/usc/42/1320d.md?p=7) of section 307(b) or (c) of the Clean Water Act [[33 U.S.C. 1317(b)](/usc/33/1317.md?p=b), (c)] and enforceable requirements in a pretreatment [program](/usc/42/274l–1.md?p=4) submitted by a [State](#27) or municipality for Federal approval under [section 402](/usc/42/402.md) of such Act [[33 U.S.C. 1342](/usc/33/1342.md)], and (K) any [release](#22) of source, special nuclear, or byproduct material, as those terms are defined in the Atomic Energy Act of 1954 [[42 U.S.C. 2011](/usc/42/2011.md) et seq.], in compliance with a legally enforceable license, permit, regulation, or order issued pursuant to the Atomic Energy Act of 1954. - (11) The term “Fund” or “Trust Fund” means the [Hazardous Substance](/usc/42/1397h.md?p=c-4) Superfund established by [section 9507 of title 26](/usc/26/9507.md). - (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](#21), other than the [owner or operator](#20-A), who provides evidence of financial responsibility for an [owner or operator](#20-A) 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)](/usc/33/1321.md?p=b-2-A)], (B) any element, compound, mixture, solution, or substance designated pursuant to [section 9602 of this title](/usc/42/9602.md), (C) any [hazardous waste](#29) having the characteristics identified under or listed pursuant to section 3001 of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md)] (but not including any waste the regulation of which under the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6901](/usc/42/6901.md) et seq.] has been suspended by Act of Congress), (D) any toxic [pollutant](/usc/42/1397h.md?p=c-4) listed under section 307(a) of the Federal Water Pollution Control Act [[33 U.S.C. 1317(a)](/usc/33/1317.md?p=a)], (E) any hazardous air [pollutant](/usc/42/1397h.md?p=c-4) listed under section 112 of the Clean Air Act [[42 U.S.C. 7412](/usc/42/7412.md)], and (F) any imminently [hazardous chemical](/usc/42/11049.md?p=5) substance or mixture with respect to which the [Administrator](#2) has taken action pursuant to section 7 of the Toxic Substances Control Act [[15 U.S.C. 2606](/usc/15/2606.md)]. 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)](#A..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](#27), including the [territorial seas](#30). - (16) The term “natural resources” means land, fish, wildlife, biota, air, water, [ground water](#12), [drinking water supplies](#7), and other such resources belonging to, managed by, held in [trust](/usc/42/12854.md?p=6) by, appertaining to, or otherwise controlled by the [United States](#27) (including the resources of the fishery conservation zone established by the Magnuson-Stevens Fishery Conservation and Management Act [[16 U.S.C. 1801](/usc/16/1801.md) et seq.]), any [State](#27) or [local government](/usc/42/8401a.md), any foreign government, any [Indian tribe](#36), or, if such resources are subject to a [trust](/usc/42/12854.md?p=6) restriction on alienation, any member of an [Indian tribe](#36). - (17) The term “offshore facility” means any [facility](#9) of any kind located in, on, or under, any of the [navigable waters of the United States](#15), and any [facility](#9) of any kind which is subject to the jurisdiction of the [United States](#27) and is located in, on, or under any other waters, other than a [vessel](#28) or a public [vessel](#28). - (18) The term “onshore facility” means any [facility](#9) (including, but not limited to, [motor vehicles](/usc/42/13211.md?p=13) and rolling stock) of any kind located in, on, or under, any land or nonnavigable waters within the [United States](#27). - (19) The term “otherwise subject to the jurisdiction of the United States” means subject to the jurisdiction of the [United States](#27) by virtue of [United States](#27) citizenship, [United States](#27) [vessel](#28) documentation or numbering, or as provided by international [agreement](/usc/42/1320b–8.md?p=a-3-A) to which the [United States](#27) is a party. - (20) - (A) The term “owner or operator” means (i) in the case of a [vessel](#28), any [person](#21) owning, operating, or chartering by demise, such [vessel](#28), (ii) in the case of an [onshore facility](#18) or an [offshore facility](#17), any [person](#21) owning or operating such [facility](#9), and (iii) in the case of any [facility](#9), title or control of which was conveyed due to bankruptcy, [foreclosure](#20-H-iii), tax delinquency, abandonment, or similar means to a [unit](/usc/42/1395w–114b.md?p=g-2) of [State](#27) or [local government](/usc/42/8401a.md), any [person](#21) who owned, operated, or otherwise controlled activities at such [facility](#9) immediately beforehand. Such term does not include a [person](#21), who, without participating in the management of a [vessel](#28) or [facility](#9), holds indicia of ownership primarily to protect his [security interest](#20-H-vi) in the [vessel](#28) or [facility](#9). - (B) In the case of a [hazardous substance](/usc/42/1397h.md?p=c-4) which has been accepted for [transportation](#26) by a common or contract carrier and except as provided in section [9607(a)(3)](/usc/42/9607.md?p=a-3) or [(4)](/usc/42/9607.md?p=a-4) of this title, (i) the term “[owner or operator](#20-A)” shall mean such common carrier or other bona fide for hire carrier acting as an independent contractor during such [transportation](#26), (ii) the shipper of such [hazardous substance](/usc/42/1397h.md?p=c-4) shall not be considered to have caused or contributed to any [release](#22) during such [transportation](#26) which resulted solely from circumstances or conditions beyond his control. - (C) In the case of a [hazardous substance](/usc/42/1397h.md?p=c-4) which has been delivered by a common or contract carrier to a [disposal](#29) or [treatment](#29) [facility](#9) and except as provided in section [9607(a)(3)](/usc/42/9607.md?p=a-3) or [(4)](/usc/42/9607.md?p=a-4) of this title, (i) the term “[owner or operator](#20-A)” 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](#22) at such [disposal](#29) or [treatment](#29) [facility](#9) resulting from circumstances or conditions beyond its control. - (D) The term “owner or operator” does not include a [unit](/usc/42/1395w–114b.md?p=g-2) of [State](#27) or [local government](/usc/42/8401a.md) which acquired ownership or control through seizure or otherwise in connection with law enforcement activity, or through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government acquires title by virtue of its function as sovereign. The exclusion provided under this paragraph shall not apply to any [State](#27) or [local government](/usc/42/8401a.md) which has caused or contributed to the [release](#22) or threatened [release](#22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) from the [facility](#9), and such a [State](#27) or [local government](/usc/42/8401a.md) 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](#32) under [section 9607 of this title](/usc/42/9607.md). - (E) **Exclusion of certain alaska native villages and native corporations.—** - (i) **In general.—** The term “[owner or operator](#20-A)” does not include, with respect to a [facility](#9) conveyed to a Native village or Native [Corporation](/usc/42/2296b–7.md?p=1) (as those terms are defined in section 3 of the Alaska Native [Claims](#4) Settlement Act [[43 U.S.C. 1602](/usc/43/1602.md)]) under the Alaska Native [Claims](#4) Settlement Act [[43 U.S.C. 1601](/usc/43/1601.md) et seq.]— - (I) the Native village or Native [Corporation](/usc/42/2296b–7.md?p=1) that received the [facility](#9) from the [United States](#27) Government; or - (II) a successor in interest to which the [facility](#9) was conveyed under section 14(c) of such Act [[43 U.S.C. 1613(c)](/usc/43/1613.md?p=c)]. - (ii) **Limitation.—** The exclusion provided under this subparagraph shall not apply to any entity described in [clause (i)](#20-E-i) that [causes](/usc/42/9908.md?p=c-2) or contributes to a [release](#22) or threatened [release](#22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) from the [facility](#9) conveyed as described in such clause. - (F) **Exclusion of lenders not participants in management.—** - (i) **Indicia of ownership to protect security.—** The term “[owner or operator](#20-A)” does not include a [person](#21) that is a [lender](#20-H-iv) that, without participating in the management of a [vessel](#28) or [facility](#9), holds indicia of ownership primarily to protect the [security interest](#20-H-vi) of the [person](#21) in the [vessel](#28) or [facility](#9). - (ii) **Foreclosure.—** The term “[owner or operator](#20-A)” does not include a [person](#21) that is a [lender](#20-H-iv) that did not [participate in management](#20-G-i) of a [vessel](#28) or [facility](#9) prior to [foreclosure](#20-H-iii), notwithstanding that the [person](#21)— - (I) [forecloses](#20-H-iii) on the [vessel](#28) or [facility](#9); and - (II) after [foreclosure](#20-H-iii), sells, re-leases (in the case of a lease finance transaction), or liquidates the [vessel](#28) or [facility](#9), maintains business activities, winds up operations, undertakes a [response](#25) action under [section 9607(d)(1) of this title](/usc/42/9607.md?p=d-1) or under the direction of an on-scene coordinator appointed under the [National Contingency Plan](#31), with respect to the [vessel](#28) or [facility](#9), or takes any other measure to preserve, protect, or prepare the [vessel](#28) or [facility](#9) prior to sale or disposition, if the [person](#21) seeks to sell, re-lease (in the case of a lease finance transaction), or otherwise divest the [person](#21) of the [vessel](#28) or [facility](#9) at the earliest practicable, commercially reasonable time, on commercially reasonable terms, taking into account market conditions and legal and regulatory requirements. - (G) **Participation in management.—** For purposes of [subparagraph (F)](#20-F)— - (i) the term “participate in management”— - (I) means actually participating in the management or operational affairs of a [vessel](#28) or [facility](#9); and - (II) does not include merely having the capacity to influence, or the unexercised right to control, [vessel](#28) or [facility](#9) operations; - (ii) a [person](#21) that is a [lender](#20-H-iv) and that holds indicia of ownership primarily to protect a [security interest](#20-H-vi) in a [vessel](#28) or [facility](#9) shall be considered to [participate in management](#20-G-i) only if, while the borrower is still in possession of the [vessel](#28) or [facility](#9) encumbered by the [security interest](#20-H-vi), the [person](#21)— - (I) exercises decisionmaking control over the environmental compliance related to the [vessel](#28) or [facility](#9), such that the [person](#21) has undertaken responsibility for the [hazardous substance](/usc/42/1397h.md?p=c-4) handling or [disposal](#29) [practices](/usc/42/17061.md?p=19) related to the [vessel](#28) or [facility](#9); or - (II) exercises control at a level comparable to that of a manager of the [vessel](#28) or [facility](#9), such that the [person](#21) has assumed or manifested responsibility— - (aa) for the overall management of the [vessel](#28) or [facility](#9) encompassing day-to-day decisionmaking with respect to environmental compliance; or - (bb) over all or substantially all of the [operational functions](#20-H-v) (as distinguished from [financial or administrative functions](#20-H-ii)) of the [vessel](#28) or [facility](#9) other than the function of environmental compliance; - (iii) the term “[participate in management](#20-G-i)” does not include performing an act or failing to act prior to the time at which a [security interest](#20-H-vi) is created in a [vessel](#28) or [facility](#9); and - (iv) the term “[participate in management](#20-G-i)” does not include— - (I) holding a [security interest](#20-H-vi) or abandoning or releasing a [security interest](#20-H-vi); - (II) including in the terms of an [extension of credit](#20-H-i), or in a contract or security [agreement](/usc/42/1320b–8.md?p=a-3-A) 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](#20-H-i) or [security interest](#20-H-vi); - (IV) monitoring or undertaking 1 or more [inspections](/usc/42/4851b.md?p=12) of the [vessel](#28) or [facility](#9); - (V) requiring a [response](#25) action or other lawful means of addressing the [release](#22) or threatened [release](#22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) in connection with the [vessel](#28) or [facility](#9) prior to, during, or on the expiration of the term of the [extension of credit](#20-H-i); - (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](#28) or [facility](#9); - (VII) restructuring, renegotiating, or otherwise agreeing to alter the terms and conditions of the [extension of credit](#20-H-i) or [security interest](#20-H-vi), exercising forbearance; - (VIII) exercising other [remedies](#24) that may be available under applicable law for the breach of a term or condition of the [extension of credit](#20-H-i) or security [agreement](/usc/42/1320b–8.md?p=a-3-A); or - (IX) conducting a [response](#25) action under [section 9607(d) of this title](/usc/42/9607.md?p=d) or under the direction of an on-scene coordinator appointed under the [National Contingency Plan](#31), if the actions do not rise to the level of participating in management (within the meaning of clauses [(i)](#20-G-i) and [(ii)](#20-G-ii)). - (H) **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](#28) or [facility](#9) and does not during the lease term control the daily operations or maintenance of the [vessel](#28) or [facility](#9); or - (II) that conforms with regulations issued by the appropriate Federal banking agency or the appropriate [State](#27) bank supervisor (as those terms are defined in [section 1813 of title 12](/usc/12/1813.md)) or with regulations issued by the National Credit Union Administration [Board](/usc/42/10261.md?p=2), as appropriate. - (ii) **Financial or administrative function.—** The term “financial or administrative function” includes a function such as that of a credit manager, accounts payable officer, accounts receivable officer, personnel manager, comptroller, or chief financial officer, or a similar function. - (iii) **Foreclosure; foreclose.—** The terms “foreclosure” and “foreclose” mean, respectively, acquiring, and to acquire, a [vessel](#28) or [facility](#9) through— - (I) - (aa) purchase at sale under a judgment or decree, power of sale, or nonjudicial [foreclosure](#20-H-iii) sale; - (bb) a deed in lieu of [foreclosure](#20-H-iii), or similar conveyance from a trustee; or - (cc) repossession, if the [vessel](#28) or [facility](#9) was security for an [extension of credit](#20-H-i) previously contracted; - (II) conveyance pursuant to an [extension of credit](#20-H-i) previously contracted, including the termination of a lease [agreement](/usc/42/1320b–8.md?p=a-3-A); or - (III) any other formal or informal manner by which the [person](#21) acquires, for subsequent disposition, title to or possession of a [vessel](#28) or [facility](#9) in order to protect the [security interest](#20-H-vi) of the [person](#21). - (iv) **Lender.—** The term “lender” means— - (I) an insured depository institution (as defined in [section 1813 of title 12](/usc/12/1813.md)); - (II) an insured credit union (as defined in [section 1752 of title 12](/usc/12/1752.md)); - (III) a bank or association chartered under the Farm Credit Act of 1971 ([12 U.S.C. 2001](/usc/12/2001.md) et seq.); - (IV) a leasing or [trust](/usc/42/12854.md?p=6) company that is an affiliate of an insured depository institution; - (V) any [person](#21) (including a successor or assignee of any such [person](#21)) that makes a bona fide [extension of credit](#20-H-i) to or takes or acquires a [security interest](#20-H-vi) from a nonaffiliated [person](#21); - (VI) the Federal National Mortgage Association, the Federal Home Loan Mortgage [Corporation](/usc/42/2296b–7.md?p=1), the Federal Agricultural Mortgage [Corporation](/usc/42/2296b–7.md?p=1), or any other entity that in a bona fide manner buys or sells loans or interests in loans; - (VII) a [person](#21) that insures or guarantees against a default in the repayment of an [extension of credit](#20-H-i), or acts as a surety with respect to an [extension of credit](#20-H-i), to a nonaffiliated [person](#21); and - (VIII) a [person](#21) that provides title insurance and that acquires a [vessel](#28) or [facility](#9) as a result of assignment or conveyance in the course of underwriting [claims](#4) and [claims](#4) settlement. - (v) **Operational function.—** The term “operational function” includes a function such as that of a [facility](#9) or plant manager, operations manager, chief operating officer, or [chief executive officer](/usc/42/12511.md?p=9). - (vi) **Security interest.—** The term “security interest” includes a right under a mortgage, deed of [trust](/usc/42/12854.md?p=6), assignment, judgment lien, pledge, security [agreement](/usc/42/1320b–8.md?p=a-3-A), factoring [agreement](/usc/42/1320b–8.md?p=a-3-A), or lease and any other right accruing to a [person](#21) to secure the repayment of money, the performance of a duty, or any other obligation by a nonaffiliated [person](#21). - (21) The term “person” means an individual, firm, [corporation](/usc/42/2296b–7.md?p=1), association, partnership, [consortium](/usc/42/16282.md?p=d-4), joint venture, commercial entity, [United States](#27) Government, [State](#27), municipality, [commission](/usc/42/2000ff.md?p=1), political subdivision of a [State](#27), 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](#8) (including the abandonment or discarding of [barrels](#3), containers, and other closed receptacles containing any [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](#33)), but excludes (A) any release which results in exposure to [persons](#21) solely within a workplace, with respect to a [claim](#4) which such [persons](#21) may assert against the employer of such [persons](#21), (B) emissions from the engine exhaust of a [motor vehicle](/usc/42/13211.md?p=13), rolling stock, aircraft, [vessel](#28), or pipeline pumping station engine, (C) release of source, byproduct, or [special nuclear material](/usc/42/2014.md?p=aa) from a [nuclear incident](/usc/42/2014.md?p=q), as those terms are defined in the Atomic Energy Act of 1954 [[42 U.S.C. 2011](/usc/42/2011.md) et seq.], if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory [Commission](/usc/42/2000ff.md?p=1) under section 170 of such Act [[42 U.S.C. 2210](/usc/42/2210.md)], or, for the purposes of [section 9604 of this title](/usc/42/9604.md) or any other [response](#25) action, any release of source byproduct, or [special nuclear material](/usc/42/2014.md?p=aa) from any processing site designated under section [7912(a)(1)](/usc/42/7912.md?p=a-1) or [7942(a)](/usc/42/7942.md?p=a) of this title, and (D) the normal application of fertilizer. - (23) The terms “remove” or “[removal](#25)” means[^2] the cleanup or [removal](#25) of released [hazardous substances](/usc/42/1397h.md?p=c-4) from the [environment](#8), such actions as may be necessary taken in the event of the threat of [release](#22) of [hazardous substances](/usc/42/1397h.md?p=c-4) into the [environment](#8), such actions as may be necessary to monitor, assess, and evaluate the [release](#22) or threat of [release](#22) of [hazardous substances](/usc/42/1397h.md?p=c-4), the [disposal](#29) 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](#8), which may otherwise result from a [release](#22) or threat of [release](#22). The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of [alternative water supplies](#34), temporary evacuation and [housing](/usc/42/1490p–2.md?p=r-3) of threatened individuals not otherwise provided for, action taken under [section 9604(b) of this title](/usc/42/9604.md?p=b), and any emergency assistance which may be provided under the [Disaster](/usc/42/5204.md?p=2) Relief and Emergency Assistance Act [[42 U.S.C. 5121](/usc/42/5121.md) et seq.]. - (24) The terms “remedy” or “remedial action” means[^2] those actions consistent with permanent remedy taken instead of or in addition to [removal](#25) actions in the event of a [release](#22) or threatened [release](#22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) into the [environment](#8), to prevent or minimize the [release](#22) of [hazardous substances](/usc/42/1397h.md?p=c-4) so that they do not migrate to [cause](/usc/42/9908.md?p=c-2) substantial danger to present or future public health or welfare or the [environment](#8). The term includes, but is not limited to, such actions at the location of the [release](#22) as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released [hazardous substances](/usc/42/1397h.md?p=c-4) 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](#29) or incineration, provision of [alternative water supplies](#34), and any monitoring reasonably required to assure that such actions protect the public health and welfare and the [environment](#8). The term includes the costs of permanent relocation of residents and businesses and community [facilities](#9) where the President determines that, alone or in combination with other measures, such relocation is more [cost-effective](/usc/42/1396e.md?p=e-2) than and environmentally preferable to the [transportation](#26), storage, [treatment](#29), destruction, or secure disposition offsite of [hazardous substances](/usc/42/1397h.md?p=c-4), or may otherwise be necessary to protect the public health or welfare; the term includes offsite [transport](#26) and offsite storage, [treatment](#29), destruction, or secure disposition of [hazardous substances](/usc/42/1397h.md?p=c-4) and associated contaminated materials. - (25) The terms “respond” or “response” means[^2] [remove](#23), removal, [remedy](#24), and [remedial action](#24);,[^3] all such terms (including the terms “removal” and “[remedial action](#24)”) include enforcement activities related thereto. - (26) The terms “transport” or “transportation” means[^2] the movement of a [hazardous substance](/usc/42/1397h.md?p=c-4) by any mode, including a hazardous liquid pipeline [facility](#9) (as defined in [section 60101(a) of title 49](/usc/49/60101.md?p=a)), and in the case of a [hazardous substance](/usc/42/1397h.md?p=c-4) 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](/usc/42/1397h.md?p=c-4). - (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](#26) on water. - (29) The terms “disposal”, “hazardous waste”, and “treatment” shall have the meaning provided in section 1004 of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6903](/usc/42/6903.md)]. - (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](/usc/33/1362.md)]. - (31) The term “national contingency plan” means the national contingency plan published under section 311(c)[^4] of the Federal Water Pollution Control Act or revised pursuant to [section 9605 of this title](/usc/42/9605.md). - (32) The terms “liable” or “liability” under this subchapter shall be construed to be the [standard](/usc/42/1320d.md?p=7) of liability which obtains under section 311 of the Federal Water Pollution Control Act [[33 U.S.C. 1321](/usc/33/1321.md)]. - (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](#22) into the [environment](#8) and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the [environment](#8) or indirectly by ingestion through food chains, will or may reasonably be anticipated to [cause](/usc/42/9908.md?p=c-2) 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](/usc/42/1397h.md?p=c-4) under [subparagraphs (A) through (F)](#14-A..14-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](/usc/42/9607.md?p=b-3), 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](#9) concerned is located was acquired by the defendant after the [disposal](#29) or placement of the [hazardous substance](/usc/42/1397h.md?p=c-4) on, in, or at the [facility](#9), and one or more of the circumstances described in clause [(i)](#35-A-i), [(ii)](#35-A-ii), or [(iii)](#35-A-iii) is also established by the defendant by a preponderance of the evidence: - (i) At the time the defendant acquired the [facility](#9) the defendant did not know and had no reason to know that any [hazardous substance](/usc/42/1397h.md?p=c-4) which is the subject of the [release](#22) or threatened [release](#22) was disposed of on, in, or at the [facility](#9). - (ii) The defendant is a government entity which acquired the [facility](#9) 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](#9) 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)](/usc/42/9607.md) and [(b)](/usc/42/9607.md?p=b) of this title, provides full cooperation, assistance, and [facility](#9) access to the [persons](#21) that are authorized to conduct [response](#25) actions at the [facility](#9) (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial [response](#25) action at the [facility](#9)), is in compliance with any land use restrictions established or relied on in connection with the [response](#25) action at a [facility](#9), and does not impede the effectiveness or integrity of any institutional control employed at the [facility](#9) in connection with a [response](#25) 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)](#35-A-i), the defendant must demonstrate to a court that— - (I) on or before the date on which the defendant acquired the [facility](#9), the defendant carried out all appropriate inquiries, as provided in clauses [(ii)](#35-B-ii) and [(iv)](#35-B-iv), into the previous ownership and uses of the [facility](#9) in accordance with generally accepted good commercial and customary [standards](/usc/42/1320d.md?p=7) and [practices](/usc/42/17061.md?p=19); and - (II) the defendant took reasonable steps to— - (aa) stop any continuing [release](#22); - (bb) prevent any threatened future [release](#22); and - (cc) prevent or limit any human, environmental, or natural resource exposure to any previously released [hazardous substance](/usc/42/1397h.md?p=c-4). - (ii) **Standards and practices.—** Not later than 2 years after January 11, 2002, the [Administrator](#2) shall by regulation establish [standards](/usc/42/1320d.md?p=7) and [practices](/usc/42/17061.md?p=19) for the purpose of satisfying the requirement to carry out all appropriate inquiries under [clause (i)](#35-B-i). - (iii) **Criteria.—** In promulgating regulations that establish the [standards](/usc/42/1320d.md?p=7) and [practices](/usc/42/17061.md?p=19) referred to in [clause (ii)](#35-B-ii), the [Administrator](#2) shall include each of the following: - (I) The results of an inquiry by an environmental professional. - (II) Interviews with past and present [owners](/usc/42/13641.md?p=4), operators, and occupants of the [facility](#9) for the purpose of gathering information regarding the potential for contamination at the [facility](#9). - (III) Reviews of historical sources, such as chain of title documents, aerial photographs, [building](/usc/42/6881.md?p=i-3) 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](#9) that are filed under Federal, [State](#27), or local law. - (V) Reviews of Federal, [State](#27), and [local government](/usc/42/8401a.md) records, waste [disposal](#29) records, [underground storage tank](/usc/42/6991b.md?p=i-1-F-ii) records, and [hazardous waste](#29) handling, generation, [treatment](#29), [disposal](#29), and spill records, concerning contamination at or near the [facility](#9). - (VI) Visual [inspections](/usc/42/4851b.md?p=12) of the [facility](#9) 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)](#35-B-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](/usc/42/4851b.md?p=12). - (II) **Property purchased on or after may 31, 1997.—** With respect to property purchased on or after May 31, 1997, and until the [Administrator](#2) promulgates the regulations described in [clause (ii)](#35-B-ii), the procedures of the American Society for Testing and Materials, including the document known as “[Standard](/usc/42/1320d.md?p=7) E1527–97”, entitled “[Standard](/usc/42/1320d.md?p=7) Practice for Environmental Site Assessment: Phase 1 Environmental Site Assessment Process”, shall satisfy the requirements in [clause (i)](#35-B-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](#9) [inspection](/usc/42/4851b.md?p=12) 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](/usc/42/9607.md?p=b-3) shall diminish the [liability](#32) of any previous [owner or operator](#20-A) of such [facility](#9) who would otherwise be [liable](#32) under this chapter. Notwithstanding this paragraph, if the defendant obtained actual knowledge of the [release](#22) or threatened [release](#22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) at such [facility](#9) when the defendant owned the real property and then subsequently transferred ownership of the property to another [person](#21) without disclosing such knowledge, such defendant shall be treated as [liable](#32) under [section 9607(a)(1) of this title](/usc/42/9607.md?p=a-1) and no defense under [section 9607(b)(3) of this title](/usc/42/9607.md?p=b-3) shall be available to such defendant. - (D) Nothing in this paragraph shall affect the [liability](#32) under this chapter of a defendant who, by any act or omission, caused or contributed to the [release](#22) or threatened [release](#22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) which is the subject of the action relating to the [facility](#9). - (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](/usc/42/2296b–7.md?p=1), which is recognized as eligible for the special [programs](/usc/42/274l–1.md?p=4) and services provided by the [United States](#27) to [Indians](/usc/42/6862.md?p=6) because of their status as [Indians](/usc/42/6862.md?p=6). - (37) - (A) The term “service station dealer” means any [person](#21)— - (i) who owns or operates a [motor vehicle](/usc/42/13211.md?p=13) service station, filling station, garage, or similar retail establishment engaged in the business of selling, repairing, or servicing [motor vehicles](/usc/42/13211.md?p=13), where a significant percentage of the gross revenue of the establishment is derived from the fueling, repairing, or servicing of [motor vehicles](/usc/42/13211.md?p=13), and - (ii) who accepts for collection, accumulation, and delivery to an oil recycling [facility](#9), recycled oil that (I) has been removed from the engine of a [light duty motor vehicle](/usc/42/13211.md?p=11) or household appliances by the [owner](/usc/42/13641.md?p=4) of such vehicle or appliances, and (II) is presented, by such [owner](/usc/42/13641.md?p=4), to such [person](#21) for collection, accumulation, and delivery to an oil recycling [facility](#9). - (B) For purposes of [section 9614(c) of this title](/usc/42/9614.md?p=c), the term “[service station dealer](#37-A)” shall, notwithstanding the provisions of [subparagraph (A)](#37-A), include any government agency that establishes a [facility](#9) 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](/usc/42/13641.md?p=4) or operators of refuse collection services who are compelled by [State](#27) law to collect, accumulate, and deliver such oil to an oil recycling [facility](#9). - (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](#28) which carries [hazardous substances](/usc/42/1397h.md?p=c-4) for the purpose of incineration of such substances, so long as such substances or residues of such substances are on [board](/usc/42/10261.md?p=2). - (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](/usc/42/1397h.md?p=c-4), [pollutant](/usc/42/1397h.md?p=c-4), or [contaminant](/usc/42/1397h.md?p=c-4). - (B) **Exclusions.—** The term “[brownfield site](#39-A)” does not include— - (i) a [facility](#9) that is the subject of a planned or ongoing [removal](#25) action under this subchapter; - (ii) a [facility](#9) that is listed on the National Priorities List or is proposed for listing; - (iii) a [facility](#9) 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](#9) 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](#9) to which a permit has been issued by the [United States](#27) or an authorized [State](#27) under the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act ([42 U.S.C. 6901](/usc/42/6901.md) et seq.), the Federal Water Pollution Control Act ([33 U.S.C. 1321](/usc/33/1321.md)) [[33 U.S.C. § 1251](/usc/33/1251.md) et seq.], the Toxic Substances Control Act ([15 U.S.C. 2601](/usc/15/2601.md) et seq.), or the Safe Drinking Water Act ([42 U.S.C. 300f](/usc/42/300f.md) et seq.); - (v) a [facility](#9) that— - (I) is subject to corrective action under section 3004(u) or 3008(h) of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act ([42 U.S.C. 6924(u)](/usc/42/6924.md?p=u), 6928(h)); and - (II) to which a corrective action permit or order has been issued or [modified](/usc/42/7501.md?p=4) to require the implementation of corrective measures; - (vi) a land [disposal](#29) [unit](/usc/42/1395w–114b.md?p=g-2) with respect to which— - (I) a closure notification under subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act ([42 U.S.C. 6921](/usc/42/6921.md) et seq.) has been submitted; and - (II) closure requirements have been specified in a closure plan or permit; - (vii) a [facility](#9) that is subject to the jurisdiction, custody, or control of a department, agency, or instrumentality of the [United States](#27), except for land held in [trust](/usc/42/12854.md?p=6) by the [United States](#27) for an [Indian tribe](#36); - (viii) a portion of a [facility](#9)— - (I) at which there has been a [release](#22) of polychlorinated biphenyls; and - (II) that is subject to remediation under the Toxic Substances Control Act ([15 U.S.C. 2601](/usc/15/2601.md) et seq.); or - (ix) a portion of a [facility](#9), for which portion, assistance for [response](#25) activity has been obtained under subtitle I of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act ([42 U.S.C. 6991](/usc/42/6991.md) et seq.) from the Leaking [Underground Storage Tank](/usc/42/6991b.md?p=i-1-F-ii) [Trust Fund](#11) established under [section 9508 of title 26](/usc/26/9508.md). - (C) **Site-by-site determinations.—** Notwithstanding [subparagraph (B)](#39-B) and on a site-by-site basis, the President may authorize financial assistance under [section 9604(k) of this title](/usc/42/9604.md?p=k) to an [eligible entity](/usc/42/256a.md?p=l-1) at a site included in clause [(i)](#39-B-i), [(iv)](#39-B-iv), [(v)](#39-B-v), [(vi)](#39-B-vi), [(viii)](#39-B-viii), or [(ix)](#39-B-ix) of subparagraph (B) if the President finds that financial assistance will protect human health and the [environment](#8), 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](/usc/42/9604.md?p=k), the term “[brownfield site](#39-A)” includes a site that— - (i) meets the definition of “[brownfield site](#39-A)” under [subparagraphs (A) through (C)](#39-A..39-C); and - (ii) - (I) is contaminated by a [controlled substance](/usc/42/11851.md?p=2) (as defined in [section 802 of title 21](/usc/21/802.md)); - (II) - (aa) is contaminated by petroleum or a petroleum product excluded from the definition of “[hazardous substance](/usc/42/1397h.md?p=c-4)” under this section; and - (bb) is a site for which there is no viable responsible party and that is determined by the [Administrator](#2) or the [State](#27), as appropriate, to be a site that will be assessed, investigated, or cleaned up by a [person](#21) that is not potentially [liable](#32) for cleaning up the site under this chapter or any other law pertaining to the cleanup of petroleum products; and - (cc) is not subject to any order issued under section 9003(h) of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act ([42 U.S.C. 6991b(h)](/usc/42/6991b.md?p=h)); or - (III) is mine-scarred land. - (40) **Bona fide prospective purchaser.—** - (A) **In general.—** The term “bona fide prospective purchaser” means, with respect to a [facility](#9)— - (i) a [person](#21) who— - (I) acquires ownership of the [facility](#9) after January 11, 2002; and - (II) establishes by a preponderance of the evidence each of the criteria described in [clauses (i) through (viii)](#40-B-i..40-B-viii) of subparagraph (B); and - (ii) a [person](#21)— - (I) who acquires a leasehold interest in the [facility](#9) after January 11, 2002; - (II) who establishes by a preponderance of the evidence that the leasehold interest is not designed to avoid [liability](#32) under this chapter by any [person](#21); and - (III) with respect to whom any of the following conditions apply: - (aa) The [owner](/usc/42/13641.md?p=4) of the [facility](#9) that is subject to the leasehold interest is a [person](#21) described in [clause (i)](#40-A-i). - (bb) - (AA) The [owner](/usc/42/13641.md?p=4) of the [facility](#9) that is subject to the leasehold interest was a [person](#21) described in [clause (i)](#40-A-i) at the time the leasehold interest was acquired, but can no longer establish by a preponderance of the evidence each of the criteria described in [clauses (i) through (viii)](#40-B-i..40-B-viii) of subparagraph (B) due to circumstances unrelated to any action of the [person](#21) who holds the leasehold interest; and - (BB) the [person](#21) who holds the leasehold interest establishes by a preponderance of the evidence each of the criteria described in clauses [(i)](#40-B-i), [(iii)](#40-B-iii), [(iv)](#40-B-iv), [(v)](#40-B-v), [(vi)](#40-B-vi), [(vii)](#40-B-vii), and [(viii)](#40-B-viii) of subparagraph (B). - (cc) The [person](#21) who holds the leasehold interest establishes by a preponderance of the evidence each of the criteria described in [clauses (i) through (viii)](#40-B-i..40-B-viii) of subparagraph (B). - (B) **Criteria.—** The criteria described in this subparagraph are as follows: - (i) **Disposal prior to acquisition.—** All [disposal](#29) of [hazardous substances](/usc/42/1397h.md?p=c-4) at the [facility](#9) occurred before the [person](#21) acquired the [facility](#9). - (ii) **Inquiries.—** - (I) **In general.—** The [person](#21) made all appropriate inquiries into the previous ownership and uses of the [facility](#9) in accordance with generally accepted good commercial and customary [standards](/usc/42/1320d.md?p=7) and [practices](/usc/42/17061.md?p=19) in accordance with subclauses [(II)](#40-B-ii-II) and [(III)](#40-B-ii-III). - (II) **Standards and practices.—** The [standards](/usc/42/1320d.md?p=7) and [practices](/usc/42/17061.md?p=19) referred to in clauses [(ii)](#35-B-ii) and [(iv)](#35-B-iv) of paragraph (35)(B) shall be considered to satisfy the requirements of this clause. - (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](#9) [inspection](/usc/42/4851b.md?p=12) and title search that reveal no basis for further investigation shall be considered to satisfy the requirements of this clause. - (iii) **Notices.—** The [person](#21) provides all legally required notices with respect to the discovery or [release](#22) of any [hazardous substances](/usc/42/1397h.md?p=c-4) at the [facility](#9). - (iv) **Care.—** The [person](#21) exercises appropriate care with respect to [hazardous substances](/usc/42/1397h.md?p=c-4) found at the [facility](#9) by taking reasonable steps to— - (I) stop any continuing [release](#22); - (II) prevent any threatened future [release](#22); and - (III) prevent or limit human, environmental, or natural resource exposure to any previously released [hazardous substance](/usc/42/1397h.md?p=c-4). - (v) **Cooperation, assistance, and access.—** The [person](#21) provides full cooperation, assistance, and access to [persons](#21) that are authorized to conduct [response](#25) actions or natural resource restoration at a [vessel](#28) or [facility](#9) (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial [response](#25) actions or natural resource restoration at the [vessel](#28) or [facility](#9)). - (vi) **Institutional control.—** The [person](#21)— - (I) is in compliance with any land use restrictions established or relied on in connection with the [response](#25) action at a [vessel](#28) or [facility](#9); and - (II) does not impede the effectiveness or integrity of any institutional control employed at the [vessel](#28) or [facility](#9) in connection with a [response](#25) action. - (vii) **Requests; subpoenas.—** The [person](#21) complies with any request for information or administrative subpoena issued by the President under this chapter. - (viii) **No affiliation.—** The [person](#21) is not— - (I) potentially [liable](#32), or affiliated with any other [person](#21) that is potentially [liable](#32), for [response](#25) costs at a [facility](#9) through— - (aa) any direct or indirect familial relationship; or - (bb) 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](#9) is conveyed or financed, by a tenancy, by the instruments by which a leasehold interest in the [facility](#9) is created, 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](#32). - (41) **Eligible response site.—** - (A) **In general.—** The term “eligible response site” means a site that meets the definition of a [brownfield site](#39-A) in subparagraphs [(A)](#39-A) and [(B)](#39-B) of paragraph (39), as [modified](/usc/42/7501.md?p=4) by subparagraphs (B) and (C) of this paragraph. - (B) **Inclusions.—** The term “eligible response site” includes— - (i) notwithstanding [paragraph (39)(B)(ix)](#39-B-ix), a portion of a [facility](#9), for which portion assistance for [response](#25) activity has been obtained under subtitle I of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act ([42 U.S.C. 6991](/usc/42/6991.md) et seq.) from the Leaking [Underground Storage Tank](/usc/42/6991b.md?p=i-1-F-ii) [Trust Fund](#11) established under [section 9508 of title 26](/usc/26/9508.md); or - (ii) a site for which, notwithstanding the exclusions provided in [subparagraph (C)](#41-C) or [paragraph (39)(B)](#39-B), the President determines, on a site-by-site basis and after consultation with the [State](#27), that limitations on enforcement under [section 9628 of this title](/usc/42/9628.md) at sites specified in clause [(iv)](#39-B-iv), [(v)](#39-B-v), [(vi)](#39-B-vi) or [(viii)](#39-B-viii) of paragraph (39)(B) would be appropriate and will— - (I) protect human health and the [environment](#8); 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](#41-B)” does not include— - (i) a [facility](#9) for which the President— - (I) conducts or has conducted a preliminary assessment or site [inspection](/usc/42/4851b.md?p=12); and - (II) after consultation with the [State](#27), 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](#9) 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. # §9602. Designation of additional hazardous substances and establishment of reportable released quantities; regulations - (a) The [Administrator](/usc/42/9601.md?p=2) shall promulgate and revise as may be appropriate, regulations designating as [hazardous substances](/usc/42/1397h.md?p=c-4), in addition to those referred to in [section 9601(14) of this title](/usc/42/9601.md?p=14), such elements, compounds, mixtures, solutions, and substances which, when released into the [environment](/usc/42/9601.md?p=8) may present substantial danger to the public health or welfare or the [environment](/usc/42/9601.md?p=8), and shall promulgate regulations establishing that quantity of any [hazardous substance](/usc/42/1397h.md?p=c-4) the [release](/usc/42/9601.md?p=22) of which shall be reported pursuant to [section 9603 of this title](/usc/42/9603.md). The [Administrator](/usc/42/9601.md?p=2) may determine that one [single](/usc/42/2304.md?p=m) quantity shall be the reportable quantity for any [hazardous substance](/usc/42/1397h.md?p=c-4), regardless of the medium into which the [hazardous substance](/usc/42/1397h.md?p=c-4) is released. For all [hazardous substances](/usc/42/1397h.md?p=c-4) for which proposed regulations establishing reportable quantities were published in the Federal Register under this subsection on or before March 1, 1986, the [Administrator](/usc/42/9601.md?p=2) shall promulgate under this subsection final regulations establishing reportable quantities not later than December 31, 1986. For all [hazardous substances](/usc/42/1397h.md?p=c-4) 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](/usc/42/9601.md?p=2) 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)](#a) of this section for any [hazardous substance](/usc/42/1397h.md?p=c-4) as defined in [section 9601(14) of this title](/usc/42/9601.md?p=14), (1) a quantity of one pound, or (2) for those [hazardous substances](/usc/42/1397h.md?p=c-4) for which reportable quantities have been established pursuant to [section 1321(b)(4) of title 33](/usc/33/1321.md?p=b-4), such reportable quantity, shall be deemed that quantity, the [release](/usc/42/9601.md?p=22) of which requires notification pursuant to section [9603(a)](/usc/42/9603.md?p=a) or [(b)](/usc/42/9603.md?p=b) of this title. # §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](/usc/42/9601.md?p=21) in charge of a [vessel](/usc/42/9601.md?p=28) or an offshore or an [onshore facility](/usc/42/9601.md?p=18) shall, as soon as he has knowledge of any [release](/usc/42/9601.md?p=22) (other than a [federally permitted release](/usc/42/9601.md?p=10)) of a [hazardous substance](/usc/42/1397h.md?p=c-4) from such [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) in quantities equal to or greater than those determined pursuant to [section 9602 of this title](/usc/42/9602.md), immediately notify the National [Response](/usc/42/9601.md?p=25) Center established under the Clean Water Act [[33 U.S.C. 1251](/usc/33/1251.md) et seq.] of such [release](/usc/42/9601.md?p=22). The National [Response](/usc/42/9601.md?p=25) Center shall convey the notification expeditiously to all appropriate Government agencies, including the [Governor](/usc/42/6372.md?p=1) of any affected [State](/usc/42/9601.md?p=27). - (b) **Penalties for failure to notify; use of notice or information pursuant to notice in criminal case—** Any [person](/usc/42/9601.md?p=21)— - (1) in charge of a [vessel](/usc/42/9601.md?p=28) from which a [hazardous substance](/usc/42/1397h.md?p=c-4) is released, other than a [federally permitted release](/usc/42/9601.md?p=10), into or upon the [navigable waters of the United States](/usc/42/9601.md?p=15), adjoining shorelines, or into or upon the waters of the [contiguous zone](/usc/42/9601.md?p=30), or - (2) in charge of a [vessel](/usc/42/9601.md?p=28) from which a [hazardous substance](/usc/42/1397h.md?p=c-4) is released, other than a [federally permitted release](/usc/42/9601.md?p=10), which may affect [natural resources](/usc/42/9601.md?p=16) belonging to, appertaining to, or under the exclusive management authority of the [United States](/usc/42/9601.md?p=27) (including resources under the Magnuson-Stevens Fishery Conservation and Management Act [[16 U.S.C. 1801](/usc/16/1801.md) et seq.]), and who is [otherwise subject to the jurisdiction of the United States](/usc/42/9601.md?p=19) at the time of the [release](/usc/42/9601.md?p=22), or - (3) in charge of a [facility](/usc/42/9601.md?p=9) from which a [hazardous substance](/usc/42/1397h.md?p=c-4) is released, other than a [federally permitted release](/usc/42/9601.md?p=10), in a quantity equal to or greater than that determined pursuant to [section 9602 of this title](/usc/42/9602.md) who fails to notify immediately the appropriate agency of the [United States](/usc/42/9601.md?p=27) Government as soon as he has knowledge of such [release](/usc/42/9601.md?p=22) 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](/usc/18.md) 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](/usc/42/9601.md?p=21) 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](/usc/42/9601.md?p=21) who owns or operates or who at the time of [disposal](/usc/42/9601.md?p=29) owned or operated, or who accepted [hazardous substances](/usc/42/1397h.md?p=c-4) for [transport](/usc/42/9601.md?p=26) and selected, a [facility](/usc/42/9601.md?p=9) at which [hazardous substances](/usc/42/1397h.md?p=c-4) (as defined in [section 9601(14)(C) of this title](/usc/42/9601.md)) are or have been stored, treated, or disposed of shall, unless such [facility](/usc/42/9601.md?p=9) has a permit issued under, or has been accorded interim status under, subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq.], notify the [Administrator](/usc/42/9601.md?p=2) of the Environmental Protection Agency of the existence of such [facility](/usc/42/9601.md?p=9), specifying the amount and type of any [hazardous substance](/usc/42/1397h.md?p=c-4) to be found there, and any known, suspected, or likely [releases](/usc/42/9601.md?p=22) of such substances from such [facility](/usc/42/9601.md?p=9). The [Administrator](/usc/42/9601.md?p=2) may prescribe in greater detail the manner and form of the notice and the information included. The [Administrator](/usc/42/9601.md?p=2) shall notify the affected [State agency](/usc/42/1396r–8.md?p=k-9), or any department designated by the [Governor](/usc/42/6372.md?p=1) to receive such notice, of the existence of such [facility](/usc/42/9601.md?p=9). Any [person](/usc/42/9601.md?p=21) who knowingly fails to notify the [Administrator](/usc/42/9601.md?p=2) of the existence of any such [facility](/usc/42/9601.md?p=9) 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](/usc/42/9601.md?p=21) who knowingly fails to provide the notice required by this subsection shall not be entitled to any limitation of [liability](/usc/42/9601.md?p=32) or to any defenses to [liability](/usc/42/9601.md?p=32) set out in [section 9607 of this title](/usc/42/9607.md): Provided, however, That notification under this subsection is not required for any [facility](/usc/42/9601.md?p=9) which would be reportable hereunder solely as a result of any stoppage in transit which is temporary, incidental to the [transportation](/usc/42/9601.md?p=26) 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](/usc/42/1397h.md?p=c-4). Notification received pursuant to this subsection or information obtained by the exploitation of such notification shall not be used against any such [person](/usc/42/9601.md?p=21) 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](/usc/42/9601.md?p=2) 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](/usc/42/9601.md?p=9), and - (B) the identity, characteristics, quantity, origin, or condition (including containerization and previous [treatment](/usc/42/9601.md?p=29)) of any [hazardous substances](/usc/42/1397h.md?p=c-4) contained or deposited in a [facility](/usc/42/9601.md?p=9); the records which shall be retained by any [person](/usc/42/9601.md?p=21) required to provide the notification of a [facility](/usc/42/9601.md?p=9) set out in [subsection (c)](#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](/usc/42/9601.md?p=21) 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](/usc/42/9601.md?p=21) who violates this paragraph shall, upon conviction, be fined in accordance with the applicable provisions of [title 18](/usc/18.md) 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](/usc/42/9601.md?p=21) identified under paragraph (1) of this subsection may apply to the [Administrator](/usc/42/9601.md?p=2) of the Environmental Protection Agency for a waiver of the provisions of the first sentence of paragraph (2) of this subsection. The [Administrator](/usc/42/9601.md?p=2) 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](/usc/42/9601.md?p=2) 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](/usc/42/9601.md?p=2) of the Environmental Protection Agency may in his discretion require any such [person](/usc/42/9601.md?p=21) 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](/usc/42/9601.md?p=2) determines to be necessary to protect the public health or welfare. - (e) **Applicability to registered pesticide products and air emissions from animal waste at farms—** - (1) **In general—** This section shall not apply to— - (A) the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act ([7 U.S.C. 136](/usc/7/136.md) et seq.) or the handling and storage of such a pesticide product by an agricultural producer; or - (B) air emissions from [animal waste](#e-2-A-i) (including decomposing [animal waste](#e-2-A-i)) at a farm. - (2) **Definitions—** In this subsection: - (A) **Animal waste—** - (i) **In general—** The term “animal waste” means feces, urine, or other excrement, digestive emission, urea, or similar substances emitted by animals (including any form of livestock, poultry, or fish). - (ii) **Inclusions—** The term “[animal waste](#e-2-A-i)” includes [animal waste](#e-2-A-i) that is mixed or commingled with bedding, compost, feed, soil, or any other material typically found with such waste. - (B) **Farm—** The term “farm” means a site or area (including associated structures) that— - (i) is used for— - (I) the production of a crop; or - (II) the raising or selling of animals (including any form of livestock, poultry, or fish); and - (ii) under normal conditions, produces during a farm year any agricultural products with a total value equal to not less than $1,000. - (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)](#a) or [(b)](#b) of this section for any [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4)— - (1) which is required to be reported (or specifically exempted from a requirement for reporting) under subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq.] or regulations thereunder and which has been reported to the National [Response](/usc/42/9601.md?p=25) Center, or - (2) which is a continuous [release](/usc/42/9601.md?p=22), stable in quantity and rate, and is— - (A) from a [facility](/usc/42/9601.md?p=9) for which notification has been given under [subsection (c)](#c) of this section, or - (B) a [release](/usc/42/9601.md?p=22) of which notification has been given under subsections [(a)](#a) and [(b)](#b) of this section for a period sufficient to establish the continuity, quantity, and regularity of such [release](/usc/42/9601.md?p=22): # §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](/usc/42/1397h.md?p=c-4) is released or there is a substantial threat of such a [release](/usc/42/9601.md?p=22) into the [environment](/usc/42/9601.md?p=8), or (B) there is a [release](/usc/42/9601.md?p=22) or substantial threat of [release](/usc/42/9601.md?p=22) into the [environment](/usc/42/9601.md?p=8) of any [pollutant or contaminant](/usc/42/9601.md?p=33) 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](/usc/42/9601.md?p=31), to [remove](/usc/42/9601.md?p=23) or arrange for the [removal](/usc/42/9601.md?p=25) of, and provide for [remedial action](/usc/42/9601.md?p=24) relating to such [hazardous substance](/usc/42/1397h.md?p=c-4), [pollutant](/usc/42/1397h.md?p=c-4), or [contaminant](/usc/42/1397h.md?p=c-4) at any time (including its [removal](/usc/42/9601.md?p=25) from any contaminated natural resource), or take any other [response](/usc/42/9601.md?p=25) measure consistent with the [national contingency plan](/usc/42/9601.md?p=31) which the President deems necessary to protect the public health or welfare or the [environment](/usc/42/9601.md?p=8). When the President determines that such action will be done properly and promptly by the [owner or operator](/usc/42/9601.md?p=20-A) of the [facility](/usc/42/9601.md?p=9) or [vessel](/usc/42/9601.md?p=28) or by any other responsible party, the President may allow such [person](/usc/42/9601.md?p=21) to carry out the action, conduct the remedial investigation, or conduct the feasibility study in accordance with [section 9622 of this title](/usc/42/9622.md). 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](/usc/42/9601.md?p=21) to assist the President in overseeing and reviewing the conduct of such RI/FS and if the responsible party agrees to reimburse the [Fund](/usc/42/9601.md?p=11) 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](/usc/42/1320d.md?p=7) of [liability](/usc/42/9601.md?p=32), receive preferential [treatment](/usc/42/9601.md?p=29), or in any other way, whether direct or indirect, benefit from any such arrangements as a [response](/usc/42/9601.md?p=25) action contractor, or as a [person](/usc/42/9601.md?p=21) hired or retained by such a [response](/usc/42/9601.md?p=25) action contractor, with respect to the [release](/usc/42/9601.md?p=22) or [facility](/usc/42/9601.md?p=9) in question. The President shall give primary attention to those [releases](/usc/42/9601.md?p=22) which the President deems may present a public health threat. - (2) **Removal Action.—** Any [removal](/usc/42/9601.md?p=25) action undertaken by the President under this subsection (or by any other [person](/usc/42/9601.md?p=21) referred to in [section 9622 of this title](/usc/42/9622.md)) should, to the extent the President deems practicable, contribute to the efficient performance of any long term [remedial action](/usc/42/9601.md?p=24) with respect to the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) concerned. - (3) **Limitations on Response.—** The President shall not provide for a [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) under this section in [response](/usc/42/9601.md?p=25) to a [release](/usc/42/9601.md?p=22) or threat of [release](/usc/42/9601.md?p=22)— - (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](/usc/42/6881.md?p=i-3) or business or community structures; or - (C) into public or private [drinking water supplies](/usc/42/9601.md?p=7) 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](/usc/42/9601.md?p=25) to any [release](/usc/42/9601.md?p=22) or threat of [release](/usc/42/9601.md?p=22) if in the President’s discretion, it constitutes a public health or environmental emergency and no other [person](/usc/42/9601.md?p=21) with the authority and capability to [respond](/usc/42/9601.md?p=25) 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)](#a) of this section, or whenever the President has reason to believe that a [release](/usc/42/9601.md?p=22) has occurred or is about to occur, or that illness, disease, or complaints thereof may be attributable to exposure to a [hazardous substance](/usc/42/1397h.md?p=c-4), [pollutant](/usc/42/1397h.md?p=c-4), or [contaminant](/usc/42/1397h.md?p=c-4) and that a [release](/usc/42/9601.md?p=22) 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](/usc/42/9601.md?p=22) or threat thereof, the source and nature of the [hazardous substances](/usc/42/1397h.md?p=c-4), [pollutants](/usc/42/1397h.md?p=c-4) or [contaminants](/usc/42/1397h.md?p=c-4) involved, and the extent of danger to the public health or welfare or to the [environment](/usc/42/9601.md?p=8). 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](/usc/42/9601.md?p=25) 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](/usc/42/9601.md?p=27) natural resource trustees of potential [damages](/usc/42/9601.md?p=6) to [natural resources](/usc/42/9601.md?p=16) resulting from [releases](/usc/42/9601.md?p=22) under investigation pursuant to this section and shall seek to coordinate the assessments, investigations, and planning under this section with such Federal and [State](/usc/42/9601.md?p=27) 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](/usc/42/9601.md?p=25) 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](/usc/42/9601.md?p=8), and (iii) such assistance will not otherwise be provided on a timely basis, or (B) the President has determined the appropriate [remedial actions](/usc/42/9601.md?p=24) pursuant to paragraph (2) of this subsection and the [State](/usc/42/9601.md?p=27) or [States](/usc/42/9601.md?p=27) in which the source of the [release](/usc/42/9601.md?p=22) is located have complied with the requirements of paragraph (3) of this subsection, or (C) continued [response](/usc/42/9601.md?p=25) action is otherwise appropriate and consistent with the [remedial action](/usc/42/9601.md?p=24) to be taken[^1] obligations from the [Fund](/usc/42/9601.md?p=11), other than those authorized by [subsection (b)](#b) of this section, shall not continue after $2,000,000 has been obligated for [response](/usc/42/9601.md?p=25) actions or 12 months has elapsed from the date of initial [response](/usc/42/9601.md?p=25) to a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4). - (2) The President shall consult with the affected [State](/usc/42/9601.md?p=27) or [States](/usc/42/9601.md?p=27) before determining any appropriate [remedial action](/usc/42/9601.md?p=24) to be taken pursuant to the authority granted under [subsection (a)](#a) of this section. - (3) The President shall not provide any [remedial actions](/usc/42/9601.md?p=24) pursuant to this section unless the [State](/usc/42/9601.md?p=27) in which the [release](/usc/42/9601.md?p=22) occurs first enters into a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) with the President providing assurances deemed adequate by the President that (A) the [State](/usc/42/9601.md?p=27) will assure all future maintenance of the [removal](/usc/42/9601.md?p=25) and [remedial actions](/usc/42/9601.md?p=24) provided for the expected life of such actions as determined by the President; (B) the [State](/usc/42/9601.md?p=27) will assure the availability of a [hazardous waste](/usc/42/9601.md?p=29) [disposal](/usc/42/9601.md?p=29) facility acceptable to the President and in compliance with the requirements of subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq.] for any necessary offsite storage, destruction, [treatment](/usc/42/9601.md?p=29), or secure disposition of the [hazardous substances](/usc/42/1397h.md?p=c-4); and (C) the [State](/usc/42/9601.md?p=27) will pay or assure payment of (i) 10 per centum of the costs of the [remedial action](/usc/42/9601.md?p=24), 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](/usc/42/9601.md?p=27) or political subdivision for the [release](/usc/42/9601.md?p=22)) of any sums expended in [response](/usc/42/9601.md?p=25) to a [release](/usc/42/9601.md?p=22) at a facility, that was operated by the [State](/usc/42/9601.md?p=27) or a political subdivision thereof, either directly or through a [contractual relationship](/usc/42/9601.md?p=35-A) or otherwise, at the time of any [disposal](/usc/42/9601.md?p=29) of [hazardous substances](/usc/42/1397h.md?p=c-4) therein. For the purpose of clause (ii) of this subparagraph, the term “facility” does not include [navigable waters](/usc/42/9601.md?p=15) or the beds underlying those waters. In the case of [remedial action](/usc/42/9601.md?p=24) to be taken on land or water held by an [Indian tribe](/usc/42/9601.md?p=36), held by the [United States](/usc/42/9601.md?p=27) in [trust](/usc/42/12854.md?p=6) for [Indians](/usc/42/6862.md?p=6), held by a member of an [Indian tribe](/usc/42/9601.md?p=36) (if such land or water is subject to a [trust](/usc/42/12854.md?p=6) restriction on alienation), or otherwise within the borders of an [Indian](/usc/42/6862.md?p=6) reservation, the requirements of this paragraph for assurances regarding future maintenance and [cost-sharing](/usc/42/18022.md?p=c-3-A) shall not apply, and the President shall provide the assurance required by this paragraph regarding the availability of a [hazardous waste](/usc/42/9601.md?p=29) [disposal](/usc/42/9601.md?p=29) facility. - (4) **Selection of Remedial Action.—** The President shall select [remedial actions](/usc/42/9601.md?p=24) to carry out this section in accordance with [section 9621 of this title](/usc/42/9621.md) (relating to cleanup [standards](/usc/42/1320d.md?p=7)). - (5) **State Credits.—** - (A) **Granting of credit.—** The President shall grant a [State](/usc/42/9601.md?p=27) a credit against the share of the costs, for which it is responsible under [paragraph (3)](#c-3) with respect to a [facility](/usc/42/9601.md?p=9) listed on the National Priorities List under the [National Contingency Plan](/usc/42/9601.md?p=31), for amounts expended by a [State](/usc/42/9601.md?p=27) for [remedial action](/usc/42/9601.md?p=24) at such [facility](/usc/42/9601.md?p=9) pursuant to a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) with the President. The credit under this paragraph shall be limited to those [State](/usc/42/9601.md?p=27) expenses which the President determines to be reasonable, documented, direct out-of-pocket expenditures of non-Federal [funds](/usc/42/9601.md?p=11). - (B) **Expenses before listing or agreement.—** The credit under this paragraph shall include expenses for [remedial action](/usc/42/9601.md?p=24) at a [facility](/usc/42/9601.md?p=9) incurred before the listing of the [facility](/usc/42/9601.md?p=9) on the National Priorities List or before a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) is entered into under [subsection (d)](#d) for the [facility](/usc/42/9601.md?p=9) if— - (i) after such expenses are incurred the [facility](/usc/42/9601.md?p=9) is listed on such list and a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) is entered into for the [facility](/usc/42/9601.md?p=9), and - (ii) the President determines that such expenses would have been credited to the [State](/usc/42/9601.md?p=27) under [subparagraph (A)](#c-5-A) had the expenditures been made after listing of the [facility](/usc/42/9601.md?p=9) on such list and after the date on which such contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) is entered into. - (C) **Response actions between 1978 and 1980.—** The credit under this paragraph shall include [funds](/usc/42/9601.md?p=11) expended or obligated by the [State](/usc/42/9601.md?p=27) or a political subdivision thereof after January 1, 1978, and before December 11, 1980, for cost-eligible [response](/usc/42/9601.md?p=25) actions and [claims](/usc/42/9601.md?p=4) for [damages](/usc/42/9601.md?p=6) compensable under [section 9611 of this title](/usc/42/9611.md). - (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](/usc/42/9601.md?p=27) expenses incurred at a [facility](/usc/42/9601.md?p=9) owned, but not operated, by such [State](/usc/42/9601.md?p=27) or by a political subdivision thereof. Such credit applies only to expenses incurred pursuant to a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) under [subsection (d)](#d) 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](/usc/42/9601.md?p=11) expended with respect to a [facility](/usc/42/9601.md?p=9) may be used by the [State](/usc/42/9601.md?p=27) to reduce all or part of the share of costs otherwise required to be paid by the [State](/usc/42/9601.md?p=27) under [paragraph (3)](#c-3) in connection with [remedial actions](/usc/42/9601.md?p=24) at such [facility](/usc/42/9601.md?p=9). If the amount of [funds](/usc/42/9601.md?p=11) for which credit is allowed under this paragraph exceeds such share of costs for such [facility](/usc/42/9601.md?p=9), the [State](/usc/42/9601.md?p=27) may use the amount of such excess to reduce all or part of the share of such costs at other [facilities](/usc/42/9601.md?p=9) in that [State](/usc/42/9601.md?p=27). A credit shall not entitle the [State](/usc/42/9601.md?p=27) 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](/usc/42/9601.md?p=24) includes the completion of [treatment](/usc/42/9601.md?p=29) 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](/usc/42/9601.md?p=8). With respect to such measures, the operation of such measures for a period of up to 10 years after the [construction](/usc/42/7479.md?p=2-C) or installation and commencement of operation shall be considered [remedial action](/usc/42/9601.md?p=24). Activities required to maintain the effectiveness of such measures following such period or the completion of [remedial action](/usc/42/9601.md?p=24), 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](/usc/42/9601.md?p=11) received by the [Hazardous Substance](/usc/42/1397h.md?p=c-4) Superfund established under subchapter A of [chapter 98](/usc/26/chstI-ch98.md) 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](/usc/42/9601.md?p=11) received by the [Hazardous Substance](/usc/42/1397h.md?p=c-4) Superfund from amounts recovered on behalf of such [fund](/usc/42/9601.md?p=11) under this chapter. - (8) **Recontracting.—** The President is authorized to undertake or continue whatever interim [remedial actions](/usc/42/9601.md?p=24) the President determines to be appropriate to reduce risks to public health or the [environment](/usc/42/9601.md?p=8) where the performance of a complete [remedial action](/usc/42/9601.md?p=24) requires recontracting because of the discovery of sources, types, or quantities of [hazardous substances](/usc/42/1397h.md?p=c-4) not known at the time of entry into the original contract. The total cost of interim actions undertaken at a [facility](/usc/42/9601.md?p=9) 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](/usc/42/9601.md?p=24) pursuant to this section unless the [State](/usc/42/9601.md?p=27) in which the [release](/usc/42/9601.md?p=22) occurs first enters into a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) with the President providing assurances deemed adequate by the President that the [State](/usc/42/9601.md?p=27) will assure the availability of [hazardous waste](/usc/42/9601.md?p=29) [treatment](/usc/42/9601.md?p=29) or [disposal](/usc/42/9601.md?p=29) [facilities](/usc/42/9601.md?p=9) which— - (A) have adequate capacity for the destruction, [treatment](/usc/42/9601.md?p=29), or secure disposition of all [hazardous wastes](/usc/42/9601.md?p=29) that are reasonably expected to be generated within the [State](/usc/42/9601.md?p=27) during the 20-year period following the date of such contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) and to be disposed of, treated, or destroyed, - (B) are within the [State](/usc/42/9601.md?p=27) or outside the [State](/usc/42/9601.md?p=27) in accordance with an interstate [agreement](/usc/42/1320b–8.md?p=a-3-A) or regional [agreement](/usc/42/1320b–8.md?p=a-3-A) or authority, - (C) are acceptable to the President, and - (D) are in compliance with the requirements of subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) 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](/usc/42/9601.md?p=27) or political subdivision thereof or [Indian tribe](/usc/42/9601.md?p=36) may apply to the President to carry out actions authorized in this section. If the President determines that the [State](/usc/42/9601.md?p=27) or political subdivision or [Indian tribe](/usc/42/9601.md?p=36) 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](/usc/42/9605.md?p=a-8) and to carry out related [enforcement actions](/usc/42/247d–6d.md?p=c-5-B-i), the President may enter into a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [State](/usc/42/9601.md?p=27) or political subdivision or [Indian tribe](/usc/42/9601.md?p=36) 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](/usc/42/1320b–8.md?p=a-3-A) under this paragraph shall be subject to such terms and conditions as the President may prescribe. The contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) may cover a specific [facility](/usc/42/9601.md?p=9) or specific [facilities](/usc/42/9601.md?p=9). - (C) **Reimbursements.—** Any [State](/usc/42/9601.md?p=27) which expended [funds](/usc/42/9601.md?p=11) during the period beginning September 30, 1985, and ending on October 17, 1986, for [response](/usc/42/9601.md?p=25) actions at any site included on the National Priorities List and subject to a cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) 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](/usc/42/18022.md?p=c-3-A) [agreement](/usc/42/1320b–8.md?p=a-3-A) pursuant to [subsection (c)](#c) of this section or a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) pursuant to this subsection, and the [State](/usc/42/9601.md?p=27) 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](/usc/42/9601.md?p=11) advanced or any costs incurred because of the breach of the contract by the [State](/usc/42/9601.md?p=27) or political subdivision. - (3) Where a [State](/usc/42/9601.md?p=27) 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](/usc/42/9601.md?p=25) 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](/usc/42/9601.md?p=9) 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](/usc/42/9601.md?p=8), the President may, in his discretion, treat these [related facilities](/usc/42/1486.md?p=g-2) as one for purposes of this section. - (e) **Information gathering and access—** - (1) **Action authorized—** Any officer, [employee](/usc/42/1320a–7h.md?p=e-7), or [representative](/usc/42/3058f.md?p=5) of the President, duly designated by the President, is authorized to take action under paragraph [(2)](#e-2), [(3)](#e-3), or [(4)](#e-4) (or any combination thereof) at a [vessel](/usc/42/9601.md?p=28), [facility](/usc/42/9601.md?p=9), establishment, place, property, or location or, in the case of paragraph [(3)](#e-3) or [(4)](#e-4), at any [vessel](/usc/42/9601.md?p=28), [facility](/usc/42/9601.md?p=9), establishment, place, property, or location which is adjacent to the [vessel](/usc/42/9601.md?p=28), [facility](/usc/42/9601.md?p=9), establishment, place, property, or location referred to in such paragraph [(3)](#e-3) or [(4)](#e-4). Any duly designated officer, [employee](/usc/42/1320a–7h.md?p=e-7), or [representative](/usc/42/3058f.md?p=5) of a [State](/usc/42/9601.md?p=27) or political subdivision under a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) under [subsection (d)(1)](#d-1) is also authorized to take such action. The authority of paragraphs [(3)](#e-3) and [(4)](#e-4) may be exercised only if there is a reasonable basis to believe there may be a [release](/usc/42/9601.md?p=22) or threat of [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33). The authority of this subsection may be exercised only for the purposes of determining the need for [response](/usc/42/9601.md?p=25), or choosing or taking any [response](/usc/42/9601.md?p=25) action under this subchapter, or otherwise enforcing the provisions of this subchapter. - (2) **Access to information—** Any officer, [employee](/usc/42/1320a–7h.md?p=e-7), or [representative](/usc/42/3058f.md?p=5) described in [paragraph (1)](#e-1) may require any [person](/usc/42/9601.md?p=21) 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](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) or transported to a [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9). - (B) The nature or extent of a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) at or from a [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9). - (C) Information relating to the ability of a [person](/usc/42/9601.md?p=21) to pay for or to perform a cleanup. In addition, upon reasonable notice, such [person](/usc/42/9601.md?p=21) either (i) shall grant any such officer, [employee](/usc/42/1320a–7h.md?p=e-7), or [representative](/usc/42/3058f.md?p=5) access at all reasonable times to any [vessel](/usc/42/9601.md?p=28), [facility](/usc/42/9601.md?p=9), 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](/usc/42/1320a–7h.md?p=e-7), or [representative](/usc/42/3058f.md?p=5) all such documents or records, at the option and expense of such [person](/usc/42/9601.md?p=21). - (3) **Entry—** Any officer, [employee](/usc/42/1320a–7h.md?p=e-7), or [representative](/usc/42/3058f.md?p=5) described in [paragraph (1)](#e-1) is authorized to enter at reasonable times any of the following: - (A) Any [vessel](/usc/42/9601.md?p=28), [facility](/usc/42/9601.md?p=9), establishment, or other place or property where any [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) may be or has been generated, stored, treated, disposed of, or transported from. - (B) Any [vessel](/usc/42/9601.md?p=28), [facility](/usc/42/9601.md?p=9), establishment, or other place or property from which or to which a [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) has been or may have been released. - (C) Any [vessel](/usc/42/9601.md?p=28), [facility](/usc/42/9601.md?p=9), establishment, or other place or property where such [release](/usc/42/9601.md?p=22) is or may be threatened. - (D) Any [vessel](/usc/42/9601.md?p=28), [facility](/usc/42/9601.md?p=9), establishment, or other place or property where entry is needed to determine the need for [response](/usc/42/9601.md?p=25) or the appropriate [response](/usc/42/9601.md?p=25) or to effectuate a [response](/usc/42/9601.md?p=25) action under this subchapter. - (4) **Inspection and samples—** - (A) **Authority—** Any officer, [employee](/usc/42/1320a–7h.md?p=e-7) or [representative](/usc/42/3058f.md?p=5) described in [paragraph (1)](#e-1) is authorized to inspect and obtain samples from any [vessel](/usc/42/9601.md?p=28), [facility](/usc/42/9601.md?p=9), establishment, or other place or property referred to in [paragraph (3)](#e-3) or from any location of any suspected [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33). Any such officer, [employee](/usc/42/1320a–7h.md?p=e-7), or [representative](/usc/42/3058f.md?p=5) is authorized to inspect and obtain samples of any containers or labeling for suspected [hazardous substances](/usc/42/1397h.md?p=c-4) or [pollutants](/usc/42/1397h.md?p=c-4) or [contaminants](/usc/42/1397h.md?p=c-4). Each such [inspection](/usc/42/4851b.md?p=12) shall be completed with reasonable promptness. - (B) **Samples—** If the officer, [employee](/usc/42/1320a–7h.md?p=e-7), or [representative](/usc/42/3058f.md?p=5) obtains any samples, before leaving the premises he shall give to the [owner](/usc/42/13641.md?p=4), operator, tenant, or other [person](/usc/42/9601.md?p=21) 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](/usc/42/13641.md?p=4), operator, tenant, or other [person](/usc/42/9601.md?p=21) in charge, if such [person](/usc/42/9601.md?p=21) can be located. - (5) **Compliance orders—** - (A) **Issuance—** If consent is not granted regarding any request made by an officer, [employee](/usc/42/1320a–7h.md?p=e-7), or [representative](/usc/42/3058f.md?p=5) under paragraph [(2)](#e-2), [(3)](#e-3), or [(4)](#e-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](/usc/42/14902.md?p=6) to commence a civil action to compel compliance with a request or order referred to in [subparagraph (A)](#e-5-A). Where there is a reasonable basis to believe there may be a [release](/usc/42/9601.md?p=22) or threat of a [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33), the court shall take the following actions: - (i) In the case of interference with entry or [inspection](/usc/42/4851b.md?p=12), the court shall enjoin such interference or direct compliance with orders to prohibit interference with entry or [inspection](/usc/42/4851b.md?p=12) unless under the circumstances of the case the demand for entry or [inspection](/usc/42/4851b.md?p=12) 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](/usc/42/9601.md?p=21) who unreasonably fails to comply with the provisions of paragraph [(2)](#e-2), [(3)](#e-3), or [(4)](#e-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](/usc/42/9601.md?p=21) under this section (including records, reports, or information obtained by [representatives](/usc/42/3058f.md?p=5) of the President) shall be available to the public, except that upon a showing satisfactory to the President (or the [State](/usc/42/9601.md?p=27), as the case may be) by any [person](/usc/42/9601.md?p=21) that records, reports, or information, or particular part thereof (other than health or safety effects data), to which the President (or the [State](/usc/42/9601.md?p=27), as the case may be) or any officer, [employee](/usc/42/1320a–7h.md?p=e-7), or [representative](/usc/42/3058f.md?p=5) has access under this section if made public would divulge information entitled to protection under [section 1905 of title 18](/usc/18/1905.md), 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](/usc/42/1320a–7h.md?p=e-7), or authorized [representatives](/usc/42/3058f.md?p=5) of the [United States](/usc/42/9601.md?p=27) concerned with carrying out this chapter, or when relevant in any proceeding under this chapter. - (B) Any [person](/usc/42/9601.md?p=21) not subject to the provisions of [section 1905 of title 18](/usc/18/1905.md) 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](/usc/42/9601.md?p=21) required to provide such data may (i) designate the data which such [person](/usc/42/9601.md?p=21) 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](/usc/42/3058f.md?p=5) 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](/usc/42/9601.md?p=21) required to provide information under this chapter may [claim](/usc/42/9601.md?p=4) that the information is entitled to protection under this paragraph unless such [person](/usc/42/9601.md?p=21) shows each of the following: - (i) Such [person](/usc/42/9601.md?p=21) has not disclosed the information to any other [person](/usc/42/9601.md?p=21), 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](/usc/42/11001.md) et seq.], an officer or [employee](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/9601.md?p=27) or a [State](/usc/42/9601.md?p=27) or [local government](/usc/42/8401a.md), an [employee](/usc/42/1320a–7h.md?p=e-7) of such [person](/usc/42/9601.md?p=21), or a [person](/usc/42/9601.md?p=21) who is bound by a confidentiality [agreement](/usc/42/1320b–8.md?p=a-3-A), and such [person](/usc/42/9601.md?p=21) 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](/usc/42/9601.md?p=27) law. - (iii) Disclosure of the information is likely to [cause](/usc/42/9908.md?p=c-2) substantial harm to the competitive position of such [person](/usc/42/9601.md?p=21). - (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](/usc/42/1397h.md?p=c-4) at the [facility](/usc/42/9601.md?p=9) or [vessel](/usc/42/9601.md?p=28) shall not be entitled to protection under this paragraph: - (i) The trade name, common name, or generic class or [category](/usc/42/1395w–4.md?p=j-1) of the [hazardous substance](/usc/42/1397h.md?p=c-4). - (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](/usc/42/5165f.md?p=a-3) to health and the [environment](/usc/42/9601.md?p=8) posed by the substance, including physical [hazards](/usc/42/5165f.md?p=a-3) (such as explosion) and potential acute and chronic health [hazards](/usc/42/5165f.md?p=a-3). - (iv) The potential routes of human exposure to the substance at the [facility](/usc/42/9601.md?p=9), establishment, place, or property being investigated, entered, or inspected under this subsection. - (v) The location of [disposal](/usc/42/9601.md?p=29) of any waste stream. - (vi) Any monitoring data or analysis of monitoring data pertaining to [disposal](/usc/42/9601.md?p=29) 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](/usc/42/9601.md?p=21) engaged in [response](/usc/42/9601.md?p=25) actions, the President or the [State](/usc/42/9601.md?p=27), in any case where it is awarding contracts pursuant to a contract entered into under [subsection (d)](#d) of this section, shall require compliance with Federal health and safety [standards](/usc/42/1320d.md?p=7) established under [section 9651(f) of this title](/usc/42/9651.md?p=f) 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](/usc/42/7479.md?p=2-C), repair, or alteration work funded in whole or in part under this section or [section 9628(a)(1)(B)(ii)(III) of this title](/usc/42/9628.md?p=a-1-B-ii-III) shall be paid wages at rates not less than those prevailing on [projects](/usc/42/11360.md?p=20) of a character similar in the locality as determined by the [Secretary](/usc/42/242q–4.md?p=2) of Labor in accordance with sections 3141–3144, [3146](/usc/40/3146.md), and [3147](/usc/40/3147.md) of title 40. The President shall not approve any such funding without first obtaining adequate assurance that required labor [standards](/usc/42/1320d.md?p=7) will be maintained upon the [construction](/usc/42/7479.md?p=2-C) work. - (2) The [Secretary](/usc/42/242q–4.md?p=2) of Labor shall have, with respect to the labor [standards](/usc/42/1320d.md?p=7) specified in [paragraph (1)](#g-1), the authority and functions set forth in Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176; 64 Stat. 1267) and [section 3145 of title 40](/usc/40/3145.md). - (h) **Emergency procurement powers; exercise by President—** Notwithstanding any other provision of law, subject to the provisions of [section 9611 of this title](/usc/42/9611.md), 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](/usc/42/6341.md?p=6), which shall report directly to the Surgeon General of the [United States](/usc/42/9601.md?p=27). The [Administrator](/usc/42/9601.md?p=2) of said Agency shall, with the cooperation of the [Administrator](/usc/42/9601.md?p=2) of the Environmental Protection Agency, the [Commissioner](/usc/42/12302.md?p=1) of the Food and [Drug](/usc/42/282.md?p=j-1-A-vii) Administration, the [Directors](/usc/42/5061.md?p=1) 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](/usc/42/9601.md?p=2) of the Occupational Safety and Health Administration, the [Administrator](/usc/42/9601.md?p=2) of the Social Security Administration, the [Secretary](/usc/42/242q–4.md?p=2) of [Transportation](/usc/42/9601.md?p=26), and appropriate [State](/usc/42/9601.md?p=27) and local health officials, effectuate and implement the health related authorities of this chapter. In addition, said [Administrator](/usc/42/9601.md?p=2) shall— - (A) in cooperation with the [States](/usc/42/9601.md?p=27), establish and maintain a national [registry](/usc/42/6341.md?p=6) of serious diseases and illnesses and a national [registry](/usc/42/6341.md?p=6) of [persons](/usc/42/9601.md?p=21) exposed to toxic substances; - (B) establish and maintain [inventory](/usc/42/4370m.md?p=14) of literature, research, and studies on the health effects of toxic substances; - (C) in cooperation with the [States](/usc/42/9601.md?p=27), 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](/usc/42/274l–1.md?p=4) to determine relationships between exposure to toxic substances and illness. In cases of public health emergencies, exposed [persons](/usc/42/9601.md?p=21) shall be eligible for admission to [hospitals](/usc/42/1395dd.md?p=e-5) and other [facilities](/usc/42/9601.md?p=9) and services operated or provided by the Public Health Service. - (2) - (A) Within 6 months after October 17, 1986, the [Administrator](/usc/42/9601.md?p=2) of the Agency for Toxic Substances and Disease [Registry](/usc/42/6341.md?p=6) (ATSDR) and the [Administrator](/usc/42/9601.md?p=2) of the Environmental Protection Agency (“EPA”) shall prepare a list, in order of priority, of at least 100 [hazardous substances](/usc/42/1397h.md?p=c-4) which are most commonly found at [facilities](/usc/42/9601.md?p=9) 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](/usc/42/9601.md?p=9) on the National Priorities List or at [facilities](/usc/42/9601.md?p=9) to which a [response](/usc/42/9601.md?p=25) to a [release](/usc/42/9601.md?p=22) or a threatened [release](/usc/42/9601.md?p=22) under this section is under consideration. - (B) Within 24 months after October 17, 1986, the [Administrator](/usc/42/9601.md?p=2) of ATSDR and the [Administrator](/usc/42/9601.md?p=2) of EPA shall revise the list prepared under [subparagraph (A)](#i-2-A). Such revision shall include, in order of priority, the addition of 100 or more such [hazardous substances](/usc/42/1397h.md?p=c-4). In each of the 3 consecutive 12-month periods that follow, the [Administrator](/usc/42/9601.md?p=2) of ATSDR and the [Administrator](/usc/42/9601.md?p=2) 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](/usc/42/1397h.md?p=c-4) per revision. The [Administrator](/usc/42/9601.md?p=2) of ATSDR and the [Administrator](/usc/42/9601.md?p=2) of EPA shall not less often than once every year thereafter revise such list to include additional [hazardous substances](/usc/42/1397h.md?p=c-4) in accordance with the criteria in [subparagraph (A)](#i-2-A). - (3) Based on all available information, including information maintained under [paragraph (1)(B)](#i-1-B) and data developed and collected on the health effects of [hazardous substances](/usc/42/1397h.md?p=c-4) under this paragraph, the [Administrator](/usc/42/9601.md?p=2) of ATSDR shall prepare toxicological profiles of each of the substances listed pursuant to [paragraph (2)](#i-2). The toxicological profiles shall be prepared in accordance with guidelines developed by the [Administrator](/usc/42/9601.md?p=2) of ATSDR and the [Administrator](/usc/42/9601.md?p=2) 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](/usc/42/1397h.md?p=c-4) 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](/usc/42/9601.md?p=2) of ATSDR’s assessment of all relevant toxicological testing which has been peer reviewed. The profiles required to be prepared under this paragraph for those [hazardous substances](/usc/42/1397h.md?p=c-4) listed under [subparagraph (A)](#i-2-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)](#i-2-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)](#i-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](/usc/42/9601.md?p=27) and made available to other interested parties. - (4) The [Administrator](/usc/42/9601.md?p=2) 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](/usc/42/9601.md?p=2) of EPA, [State](/usc/42/9601.md?p=27) officials, and local officials. Such consultations to individuals may be provided by [States](/usc/42/9601.md?p=27) under cooperative [agreements](/usc/42/1320b–8.md?p=a-3-A) established under this chapter. - (5) - (A) For each [hazardous substance](/usc/42/1397h.md?p=c-4) listed pursuant to [paragraph (2)](#i-2), the [Administrator](/usc/42/9601.md?p=2) of ATSDR (in consultation with the [Administrator](/usc/42/9601.md?p=2) of EPA and other agencies and [programs](/usc/42/274l–1.md?p=4) 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](/usc/42/9601.md?p=2) of ATSDR, in cooperation with the [Director](/usc/42/5061.md?p=1) of the National Toxicology [Program](/usc/42/274l–1.md?p=4), shall assure the initiation of a [program](/usc/42/274l–1.md?p=4) 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](/usc/42/274l–1.md?p=4) 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](/usc/42/274l–1.md?p=4), the [Administrator](/usc/42/9601.md?p=2) 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)](/usc/15/2603.md?p=e)] on the types of research that should be done. Such [program](/usc/42/274l–1.md?p=4) shall include, to the extent necessary to supplement existing information, but shall not be limited to— - (i) [laboratory](/usc/42/300jj.md?p=10) and other studies to determine short, intermediate, and long-term health effects; - (ii) [laboratory](/usc/42/300jj.md?p=10) and other studies to determine [organ](/usc/42/274b.md?p=d-2)-specific, site-specific, and system-specific acute and chronic toxicity; - (iii) [laboratory](/usc/42/300jj.md?p=10) 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](/usc/42/300jj.md?p=10) and other studies, as required by [subparagraph (A)](#i-5-A), the [Administrator](/usc/42/9601.md?p=2) 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)](#i-3); and - (iii) such other scientific and technical factors as the [Administrator](/usc/42/9601.md?p=2) of ATSDR may determine are necessary for the effective implementation of this subsection. - (C) In the development and implementation of any research [program](/usc/42/274l–1.md?p=4) under this paragraph, the [Administrator](/usc/42/9601.md?p=2) of ATSDR and the [Administrator](/usc/42/9601.md?p=2) of EPA shall coordinate such research [program](/usc/42/274l–1.md?p=4) implemented under this paragraph with the National Toxicology [Program](/usc/42/274l–1.md?p=4) and with [programs](/usc/42/274l–1.md?p=4) of toxicological testing established under the Toxic Substances Control Act [[15 U.S.C. 2601](/usc/15/2601.md) et seq.] and the Federal Insecticide, Fungicide and Rodenticide Act [[7 U.S.C. 136](/usc/7/136.md) et seq.]. The purpose of such coordination shall be to avoid duplication of effort and to assure that the [hazardous substances](/usc/42/1397h.md?p=c-4) listed pursuant to this subsection are tested thoroughly at the earliest practicable date. Where appropriate, consistent with such purpose, a research [program](/usc/42/274l–1.md?p=4) under this paragraph may be carried out using such [programs](/usc/42/274l–1.md?p=4) of toxicological testing. - (D) It is the sense of the Congress that the costs of research [programs](/usc/42/274l–1.md?p=4) under this paragraph be borne by the [manufacturers](/usc/42/300aa–33.md?p=3) and processors of the [hazardous substance](/usc/42/1397h.md?p=c-4) in question, as required in [programs](/usc/42/274l–1.md?p=4) of toxicological testing under the Toxic Substances Control Act [[15 U.S.C. 2601](/usc/15/2601.md) et seq.]. Within 1 year after October 17, 1986, the [Administrator](/usc/42/9601.md?p=2) of EPA shall promulgate regulations which provide, where appropriate, for payment of such costs by [manufacturers](/usc/42/300aa–33.md?p=3) and processors under the Toxic Substances Control Act, and registrants under the Federal Insecticide, Fungicide, and Rodenticide Act [[7 U.S.C. 136](/usc/7/136.md) et seq.], and recovery of such costs from responsible parties under this chapter. - (6) - (A) The [Administrator](/usc/42/9601.md?p=2) of ATSDR shall perform a health assessment for each [facility](/usc/42/9601.md?p=9) on the National Priorities List established under [section 9605 of this title](/usc/42/9605.md). Such health assessment shall be completed not later than December 10, 1988, for each [facility](/usc/42/9601.md?p=9) 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](/usc/42/9601.md?p=9) proposed for inclusion on such list after October 17, 1986. - (B) The [Administrator](/usc/42/9601.md?p=2) of ATSDR may perform [health assessments](#i-6-F) for [releases](/usc/42/9601.md?p=22) or [facilities](/usc/42/9601.md?p=9) where individual [persons](/usc/42/9601.md?p=21) or licensed [physicians](/usc/42/1395cc–4.md?p=a-2-E) provide information that individuals have been exposed to a [hazardous substance](/usc/42/1397h.md?p=c-4), for which the probable source of such exposure is a [release](/usc/42/9601.md?p=22). In addition to other methods (formal or informal) of providing such information, such individual [persons](/usc/42/9601.md?p=21) or licensed [physicians](/usc/42/1395cc–4.md?p=a-2-E) may submit a petition to the [Administrator](/usc/42/9601.md?p=2) of ATSDR providing such information and requesting a health assessment. If such a petition is submitted and the [Administrator](/usc/42/9601.md?p=2) of ATSDR does not initiate a health assessment, the [Administrator](/usc/42/9601.md?p=2) 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](#i-6-F) under this subsection, the [Administrator](/usc/42/9601.md?p=2) of ATSDR, in consultation with the [Administrator](/usc/42/9601.md?p=2) of EPA, shall give priority to those [facilities](/usc/42/9601.md?p=9) at which there is documented evidence of the [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4), at which the potential risk to human health appears highest, and for which in the judgment of the [Administrator](/usc/42/9601.md?p=2) of ATSDR existing health assessment data are inadequate to assess the potential risk to human health as provided in [subparagraph (F)](#i-6-F). In determining the priorities for conducting [health assessments](#i-6-F) under this subsection, the [Administrator](/usc/42/9601.md?p=2) 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](/usc/42/9601.md?p=2) 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](/usc/42/9601.md?p=9) concerned. - (E) Any [State](/usc/42/9601.md?p=27) or political subdivision carrying out a health assessment for a [facility](/usc/42/9601.md?p=9) shall report the results of the assessment to the [Administrator](/usc/42/9601.md?p=2) of ATSDR and the [Administrator](/usc/42/9601.md?p=2) of EPA and shall include recommendations with respect to further activities which need to be carried out under this section. The [Administrator](/usc/42/9601.md?p=2) of ATSDR shall [state](/usc/42/9601.md?p=27) such recommendation in any report on the results of any assessment carried out directly by the [Administrator](/usc/42/9601.md?p=2) of ATSDR for such [facility](/usc/42/9601.md?p=9) 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](/usc/42/9611.md?p=c-4), the term “health assessments” shall include preliminary assessments of the potential risk to human health posed by individual sites and [facilities](/usc/42/9601.md?p=9), 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](/usc/42/1397h.md?p=c-4) and any available recommended exposure or tolerance limits for such [hazardous substances](/usc/42/1397h.md?p=c-4), and the comparison of existing morbidity and mortality data on diseases that may be associated with the observed levels of exposure. The [Administrator](/usc/42/9601.md?p=2) of ATSDR shall use appropriate data, risk assessments, risk evaluations and studies available from the [Administrator](/usc/42/9601.md?p=2) of EPA. - (G) The purpose of [health assessments](#i-6-F) 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](/usc/42/1397h.md?p=c-4) from a [facility](/usc/42/9601.md?p=9) and whether additional information on human exposure and associated health risks is needed and should be acquired by conducting epidemiological studies under [paragraph (7)](#i-7), establishing a [registry](/usc/42/6341.md?p=6) under [paragraph (8)](#i-8), establishing a health surveillance [program](/usc/42/274l–1.md?p=4) under [paragraph (9)](#i-9), or through other means. In using the results of [health assessments](#i-6-F) for determining additional actions to be taken under this section, the [Administrator](/usc/42/9601.md?p=2) of ATSDR may consider additional information on the risks to the potentially affected population from all sources of such [hazardous substances](/usc/42/1397h.md?p=c-4) including known point or nonpoint sources other than those from the [facility](/usc/42/9601.md?p=9) in question. - (H) At the completion of each health assessment, the [Administrator](/usc/42/9601.md?p=2) of ATSDR shall provide the [Administrator](/usc/42/9601.md?p=2) of EPA and each affected [State](/usc/42/9601.md?p=27) 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](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) concerned may pose a serious threat to human health or the [environment](/usc/42/9601.md?p=8), the [Administrator](/usc/42/9601.md?p=2) of ATSDR shall so notify the [Administrator](/usc/42/9601.md?p=2) of EPA who shall promptly evaluate such [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) in accordance with the [hazard](/usc/42/5165f.md?p=a-3) ranking system referred to in [section 9605(a)(8)(A) of this title](/usc/42/9605.md?p=a-8-A) to determine whether the site shall be placed on the National Priorities List or, if the site is already on the list, the [Administrator](/usc/42/9601.md?p=2) of ATSDR may recommend to the [Administrator](/usc/42/9601.md?p=2) of EPA that the site be accorded a higher priority. - (7) - (A) Whenever in the judgment of the [Administrator](/usc/42/9601.md?p=2) of ATSDR it is appropriate on the basis of the results of a health assessment, the [Administrator](/usc/42/9601.md?p=2) 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](/usc/42/9601.md?p=2) of ATSDR it is appropriate on the basis of the results of such pilot study or other study or health assessment, the [Administrator](/usc/42/9601.md?p=2) 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](/usc/42/1397h.md?p=c-4) from a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22). 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](/usc/42/9601.md?p=22), 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](/usc/42/9601.md?p=2) of ATSDR shall consider whether the establishment of a [registry](/usc/42/6341.md?p=6) of exposed [persons](/usc/42/9601.md?p=21) would contribute to accomplishing the purposes of this subsection, taking into account circumstances bearing on the usefulness of such a [registry](/usc/42/6341.md?p=6), including the seriousness or unique character of identified diseases or the likelihood of population migration from the affected area. - (9) Where the [Administrator](/usc/42/9601.md?p=2) of ATSDR has determined that there is a significant increased risk of adverse health effects in humans from exposure to [hazardous substances](/usc/42/1397h.md?p=c-4) based on the results of a health assessment conducted under [paragraph (6)](#i-6), an epidemiologic study conducted under [paragraph (7)](#i-7), or an exposure [registry](/usc/42/6341.md?p=6) that has been established under [paragraph (8)](#i-8), and the [Administrator](/usc/42/9601.md?p=2) of ATSDR has determined that such exposure is the result of a [release](/usc/42/9601.md?p=22) from a [facility](/usc/42/9601.md?p=9), the [Administrator](/usc/42/9601.md?p=2) of ATSDR shall initiate a health surveillance [program](/usc/42/274l–1.md?p=4) for such population. This [program](/usc/42/274l–1.md?p=4) 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](/usc/42/9601.md?p=29) 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](/usc/42/9601.md?p=2) of ATSDR shall prepare and submit to the [Administrator](/usc/42/9601.md?p=2) of EPA and to the Congress a report on the results of the activities of ATSDR regarding— - (A) [health assessments](#i-6-F) and pilot health effects studies conducted; - (B) epidemiologic studies conducted; - (C) [hazardous substances](/usc/42/1397h.md?p=c-4) which have been listed under [paragraph (2)](#i-2), toxicological profiles which have been developed, and toxicologic testing which has been conducted or which is being conducted under this subsection; - (D) [registries](/usc/42/6341.md?p=6) established under [paragraph (8)](#i-8); and - (E) an overall assessment, based on the results of activities conducted by the [Administrator](/usc/42/9601.md?p=2) of ATSDR, of the linkage between human exposure to individual or combinations of [hazardous substances](/usc/42/1397h.md?p=c-4) due to [releases](/usc/42/9601.md?p=22) from [facilities](/usc/42/9601.md?p=9) covered by this chapter or the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6901](/usc/42/6901.md) 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](/usc/42/9601.md?p=34), and - (B) permanent or temporary relocation of individuals. In any case in which information is insufficient, in the judgment of the [Administrator](/usc/42/9601.md?p=2) of ATSDR or the President to determine a significant human exposure level with respect to a [hazardous substance](/usc/42/1397h.md?p=c-4), the President may take such steps as may be necessary to reduce the exposure of any [person](/usc/42/9601.md?p=21) to such [hazardous substance](/usc/42/1397h.md?p=c-4) 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](/usc/42/274l–1.md?p=4) under this subsection, nothing in this subsection shall be construed to delay or otherwise affect or impair the authority of the President, the [Administrator](/usc/42/9601.md?p=2) of ATSDR, or the [Administrator](/usc/42/9601.md?p=2) of EPA to exercise any authority vested in the President, the [Administrator](/usc/42/9601.md?p=2) of ATSDR or the [Administrator](/usc/42/9601.md?p=2) of EPA under any other provision of law (including, but not limited to, the imminent [hazard](/usc/42/5165f.md?p=a-3) authority of section 7003 of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6973](/usc/42/6973.md)]) or the [response](/usc/42/9601.md?p=25) and abatement authorities of this chapter. - (13) All studies and results of research conducted under this subsection (other than [health assessments](#i-6-F)) 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](/usc/42/274l–1.md?p=4), such peer review may be conducted by the [Board](/usc/42/10261.md?p=2) of Scientific Counselors. In the case of other research, such peer review shall be conducted by [panels](/usc/42/10362.md?p=16) consisting of no less than three nor more than seven members, who shall be disinterested scientific experts selected for such purpose by the [Administrator](/usc/42/9601.md?p=2) of ATSDR or the [Administrator](/usc/42/9601.md?p=2) of EPA, as appropriate, on the basis of their reputation for scientific objectivity and the lack of institutional ties with any [person](/usc/42/9601.md?p=21) involved in the conduct of the study or research under review. Support services for such [panels](/usc/42/10362.md?p=16) shall be provided by the Agency for Toxic Substances and Disease [Registry](/usc/42/6341.md?p=6), 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](/usc/42/9601.md?p=2) of ATSDR shall assemble, develop as necessary, and distribute to the [States](/usc/42/9601.md?p=27), and upon request to medical colleges, [physicians](/usc/42/1395cc–4.md?p=a-2-E), and other health professionals, appropriate educational materials (including short courses) on the medical surveillance, screening, and methods of diagnosis and [treatment](/usc/42/9601.md?p=29) of injury or disease related to exposure to [hazardous substances](/usc/42/1397h.md?p=c-4) (giving priority to those listed in [paragraph (2)](#i-2)), through such means as the [Administrator](/usc/42/9601.md?p=2) of ATSDR deems appropriate. - (15) The activities of the [Administrator](/usc/42/9601.md?p=2) of ATSDR described in this subsection and [section 9611(c)(4) of this title](/usc/42/9611.md?p=c-4) shall be carried out by the [Administrator](/usc/42/9601.md?p=2) of ATSDR, either directly or through cooperative [agreements](/usc/42/1320b–8.md?p=a-3-A) with [States](/usc/42/9601.md?p=27) (or political subdivisions thereof) which the [Administrator](/usc/42/9601.md?p=2) of ATSDR determines are capable of carrying out such activities. Such activities shall include provision of consultations on [health information](/usc/42/300jj.md?p=4), the conduct of [health assessments](#i-6-F), including those required under section 3019(b) of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6939a(b)](/usc/42/6939a.md?p=b)], health studies, [registries](/usc/42/6341.md?p=6), and health surveillance. - (16) The President shall provide adequate personnel for ATSDR, which shall not be fewer than 100 [employees](/usc/42/1320a–7h.md?p=e-7). For purposes of determining the number of [employees](/usc/42/1320a–7h.md?p=e-7) under this subsection, an [employee](/usc/42/1320a–7h.md?p=e-7) employed by ATSDR on a part-time career employment basis shall be counted as a fraction which is determined by dividing 40 hours into the average number of hours of such [employee](/usc/42/1320a–7h.md?p=e-7)’s regularly scheduled workweek. - (17) In accordance with [section 9620 of this title](/usc/42/9620.md) (relating to [Federal facilities](/usc/42/17061.md?p=8)), the [Administrator](/usc/42/9601.md?p=2) of ATSDR shall have the same authorities under this section with respect to [facilities](/usc/42/9601.md?p=9) owned or operated by a department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27) as the [Administrator](/usc/42/9601.md?p=2) of ATSDR has with respect to any nongovernmental entity. - (18) If the [Administrator](/usc/42/9601.md?p=2) of ATSDR determines that it is appropriate for purposes of this section to treat a [pollutant or contaminant](/usc/42/9601.md?p=33) as a [hazardous substance](/usc/42/1397h.md?p=c-4), such [pollutant or contaminant](/usc/42/9601.md?p=33) shall be treated as a [hazardous substance](/usc/42/1397h.md?p=c-4) 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](/usc/42/9601.md?p=24) under this chapter. There shall be no [cause](/usc/42/9908.md?p=c-2) 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)](#j-1) for a [remedial action](/usc/42/9601.md?p=24) only if, before an interest in real estate is acquired under this subsection, the [State](/usc/42/9601.md?p=27) in which the interest to be acquired is located assures the President, through a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) or otherwise, that the [State](/usc/42/9601.md?p=27) will accept transfer of the interest following completion of the [remedial action](/usc/42/9601.md?p=24). - (3) **Exemption—** No Federal, [State](/usc/42/9601.md?p=27), or [local government](/usc/42/8401a.md) agency shall be [liable](/usc/42/9601.md?p=32) 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](/usc/42/6372.md?p=2); - (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](/usc/42/6372.md?p=2); - (C) a government entity created by a [State](/usc/42/9601.md?p=27) legislature; - (D) a regional [council](/usc/42/300f.md?p=9) or group of general purpose [units](/usc/42/1395w–114b.md?p=g-2) of [local government](/usc/42/8401a.md); - (E) a redevelopment agency that is chartered or otherwise sanctioned by a [State](/usc/42/9601.md?p=27); - (F) a [State](/usc/42/9601.md?p=27); - (G) an [Indian Tribe](/usc/42/9601.md?p=36) other than in Alaska; - (H) an Alaska Native Regional [Corporation](/usc/42/2296b–7.md?p=1) and an Alaska Native Village [Corporation](/usc/42/2296b–7.md?p=1) as those terms are defined in the Alaska Native [Claims](/usc/42/9601.md?p=4) Settlement Act ([43 U.S.C. 1601](/usc/43/1601.md) and following) and the Metlakatla [Indian](/usc/42/6862.md?p=6) community; - (I) an organization described in [section 501(c)(3) of title 26](/usc/26/501.md?p=c-3) and exempt from taxation under [section 501(a)](/usc/42/501.md) of that title; - (J) a limited [liability](/usc/42/9601.md?p=32) [corporation](/usc/42/2296b–7.md?p=1) in which all managing members are organizations described in [subparagraph (I)](#k-1-I) or limited [liability](/usc/42/9601.md?p=32) [corporations](/usc/42/2296b–7.md?p=1) whose sole members are organizations described in [subparagraph (I)](#k-1-I); - (K) a limited partnership in which all general partners are organizations described in [subparagraph (I)](#k-1-I) or limited [liability](/usc/42/9601.md?p=32) [corporations](/usc/42/2296b–7.md?p=1) whose sole members are organizations described in [subparagraph (I)](#k-1-I); or - (L) a qualified community development entity (as defined in [section 45D(c)(1) of title 26](/usc/26/45D.md?p=c-1)). - (2) **Brownfield site characterization and assessment grant program—** - (A) **Establishment of program—** The [Administrator](/usc/42/9601.md?p=2) shall establish a [program](/usc/42/274l–1.md?p=4) to— - (i) provide grants to [inventory](/usc/42/4370m.md?p=14), characterize, assess, and conduct planning related to [brownfield sites](/usc/42/9601.md?p=39-A) under [subparagraph (B)](#k-2-B); and - (ii) perform targeted site assessments at [brownfield sites](/usc/42/9601.md?p=39-A). - (B) **Assistance for site characterization and assessment—** - (i) **In general—** On approval of an application made by an [eligible entity](#k-1), the [Administrator](/usc/42/9601.md?p=2) may make a grant to the [eligible entity](#k-1) to be used for [programs](/usc/42/274l–1.md?p=4) to [inventory](/usc/42/4370m.md?p=14), characterize, assess, and conduct planning related to one or more [brownfield sites](/usc/42/9601.md?p=39-A). - (ii) **Site characterization and assessment—** A site characterization and assessment carried out with the use of a grant under [clause (i)](#k-2-B-i) shall be performed in accordance with [section 9601(35)(B) of this title](/usc/42/9601.md?p=35-B). - (C) **Exemption for certain publicly owned brownfield sites—** Notwithstanding [paragraph (5)(B)(iii)](#k-5-B-iii), an [eligible entity](#k-1) described in any of [subparagraphs (A) through (H)](#k-1-A..k-1-H) of paragraph (1) may receive a grant under this paragraph for property acquired by that [eligible entity](#k-1) prior to January 11, 2002, even if the [eligible entity](#k-1) does not qualify as a [bona fide prospective purchaser](/usc/42/9601.md?p=40-A), so long as the [eligible entity](#k-1) has not caused or contributed to a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) at the property. - (3) **Grants and loans for brownfield remediation—** - (A) **Grants provided by the President—** Subject to paragraphs [(5)](#k-5) and [(6)](#k-6), the President shall establish a [program](/usc/42/274l–1.md?p=4) to provide grants to— - (i) [eligible entities](/usc/42/296.md?p=1), to be used for capitalization of revolving loan [funds](/usc/42/9601.md?p=11); and - (ii) [eligible entities](/usc/42/296.md?p=1) or nonprofit organizations, where warranted, as determined by the President based on considerations under [subparagraph (C)](#k-3-C), to be used directly for remediation of one or more [brownfield sites](/usc/42/9601.md?p=39-A) owned by the entity or organization that receives the grant and in amounts not to exceed $500,000 for each site to be remediated, which limit may be waived by the [Administrator](/usc/42/9601.md?p=2), but not to exceed a total of $650,000 for each site, based on the anticipated level of contamination, size, or ownership status of the site. - (B) **Loans and grants provided by eligible entities—** An [eligible entity](#k-1) that receives a grant under [subparagraph (A)(i)](#k-3-A-i) shall use the [grant funds](/usc/42/5106a.md?p=f-1-B) to provide assistance for the remediation of [brownfield sites](/usc/42/9601.md?p=39-A) in the form of— - (i) one or more loans to an [eligible entity](#k-1), a site [owner](/usc/42/13641.md?p=4), a site developer, or another [person](/usc/42/9601.md?p=21); or - (ii) one or more grants to an [eligible entity](#k-1) or other nonprofit organization, where warranted, as determined by the [eligible entity](#k-1) that is providing the assistance, based on considerations under [subparagraph (C)](#k-3-C), to remediate sites owned by the [eligible entity](#k-1) or nonprofit organization that receives the grant. - (C) **Considerations—** In determining whether a grant under subparagraph [(A)(ii)](#k-3-A-ii) or [(B)(ii)](#k-3-B-ii) is warranted, the President or the [eligible entity](#k-1), 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](/usc/42/9601.md?p=39-A) is located because of the small population or [low income](/usc/42/701.md?p=b-2) 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](/usc/42/9601.md?p=11) from a revolving loan [fund](/usc/42/9601.md?p=11) for brownfield remediation; and - (v) such other similar factors as the [Administrator](/usc/42/9601.md?p=2) considers appropriate to consider for the purposes of this subsection. - (D) **Transition—** Revolving loan [funds](/usc/42/9601.md?p=11) that have been established before January 11, 2002, may be used in accordance with this paragraph. - (E) **Exemption for certain publicly owned brownfield sites—** Notwithstanding [paragraph (5)(B)(iii)](#k-5-B-iii), an [eligible entity](#k-1) described in any of [subparagraphs (A) through (H)](#k-1-A..k-1-H) of paragraph (1) may receive a grant or loan under this paragraph for property acquired by that [eligible entity](#k-1) prior to January 11, 2002, even if the [eligible entity](#k-1) does not qualify as a [bona fide prospective purchaser](/usc/42/9601.md?p=40-A), so long as the [eligible entity](#k-1) has not caused or contributed to a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) at the property. - (4) **Multipurpose brownfields grants—** - (A) **In general—** Subject to [subparagraph (D)](#k-4-D) and paragraphs [(5)](#k-5) and [(6)](#k-6), the [Administrator](/usc/42/9601.md?p=2) shall establish a [program](/usc/42/274l–1.md?p=4) to provide multipurpose grants to an [eligible entity](#k-1) based on the criteria under [subparagraph (C)](#k-4-C) and the considerations under [paragraph (3)(C)](#k-3-C), to carry out [inventory](/usc/42/4370m.md?p=14), characterization, assessment, planning, or remediation activities at 1 or more [brownfield sites](/usc/42/9601.md?p=39-A) in an area proposed by the [eligible entity](#k-1). - (B) **Grant amounts—** - (i) **Individual grant amounts—** Each grant awarded under this paragraph shall not exceed $1,000,000. - (ii) **Cumulative grant amounts—** The total amount of grants awarded for each fiscal year under this paragraph may not exceed 15 percent of the [funds](/usc/42/9601.md?p=11) made available for the fiscal year to carry out this subsection. - (C) **Criteria—** In awarding a grant under this paragraph, the [Administrator](/usc/42/9601.md?p=2) shall consider the extent to which the [eligible entity](#k-1) is able— - (i) to provide an overall plan for revitalization of the 1 or more [brownfield sites](/usc/42/9601.md?p=39-A) in the proposed area in which the multipurpose grant will be used; - (ii) to demonstrate a capacity to conduct the range of eligible activities that will be funded by the multipurpose grant; and - (iii) to demonstrate that a multipurpose grant will meet the needs of the 1 or more [brownfield sites](/usc/42/9601.md?p=39-A) in the proposed area. - (D) **Condition—** As a condition of receiving a grant under this paragraph, each [eligible entity](#k-1) shall expend the full amount of the grant by not later than the date that is 5 years after the date on which the grant is awarded to the [eligible entity](#k-1), unless the [Administrator](/usc/42/9601.md?p=2) provides an extension. - (E) **Ownership—** An [eligible entity](#k-1) that receives a grant under this paragraph may not expend any of the [grant funds](/usc/42/5106a.md?p=f-1-B) for the remediation of a [brownfield site](/usc/42/9601.md?p=39-A) unless the [eligible entity](#k-1) owns the [brownfield site](/usc/42/9601.md?p=39-A). - (5) **General provisions—** - (A) **Maximum grant amount—** - (i) **Brownfield site characterization and assessment—** - (I) **In general—** A grant under [paragraph (2)](#k-2) may be awarded to an [eligible entity](#k-1) on a community-wide or site-by-site basis, and shall not exceed, for any individual [brownfield site](/usc/42/9601.md?p=39-A) covered by the grant, $200,000. - (II) **Waiver—** The [Administrator](/usc/42/9601.md?p=2) may waive the $200,000 limitation under [subclause (I)](#k-5-A-i-I) to permit the [brownfield site](/usc/42/9601.md?p=39-A) 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)](#k-3-A-i) may be awarded to an [eligible entity](#k-1) on a community-wide or site-by-site basis, not to exceed $1,000,000 per [eligible entity](#k-1). The [Administrator](/usc/42/9601.md?p=2) may make an additional grant to an [eligible entity](#k-1) 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](/usc/42/9601.md?p=11); - (II) the demand for funding by [eligible entities](/usc/42/296.md?p=1) that have not previously received a grant under this subsection; - (III) the demonstrated ability of the [eligible entity](#k-1) to use the revolving loan [fund](/usc/42/9601.md?p=11) to enhance remediation and provide [funds](/usc/42/9601.md?p=11) on a continuing basis; and - (IV) such other similar factors as the [Administrator](/usc/42/9601.md?p=2) considers appropriate to carry out this subsection. - (B) **Prohibition—** 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) a [response](/usc/42/9601.md?p=25) cost at a [brownfield site](/usc/42/9601.md?p=39-A) for which the [recipient](/usc/42/2996a.md?p=6) of the grant or loan is potentially [liable](/usc/42/9601.md?p=32) under [section 9607 of this title](/usc/42/9607.md); or - (iv) a cost of compliance with any Federal law (including a Federal law specified in [section 9601(39)(B) of this title](/usc/42/9601.md?p=39-B)), excluding the cost of compliance with laws applicable to the cleanup. - (C) **Assistance for development of local government site remediation programs—** A [local government](/usc/42/8401a.md) that receives a grant under this subsection may use not to exceed 10 percent of the [grant funds](/usc/42/5106a.md?p=f-1-B) to develop and implement a brownfields [program](/usc/42/274l–1.md?p=4) that may include— - (i) monitoring the health of populations exposed to one or more [hazardous substances](/usc/42/1397h.md?p=c-4) from a [brownfield site](/usc/42/9601.md?p=39-A); and - (ii) monitoring and enforcement of any institutional control used to prevent human exposure to any [hazardous substance](/usc/42/1397h.md?p=c-4) from a [brownfield site](/usc/42/9601.md?p=39-A). - (D) **Insurance—** A [recipient](/usc/42/2996a.md?p=6) of a grant or loan awarded under paragraph [(2)](#k-2), [(3)](#k-3), or [(4)](#k-4) that performs a characterization, assessment, or remediation of a [brownfield site](/usc/42/9601.md?p=39-A) may use a portion of the grant or loan to purchase insurance for the characterization, assessment, or remediation of that site. - (E) **Administrative costs—** - (i) **In general—** An [eligible entity](#k-1) may use up to 5 percent of the amounts made available under a grant or loan under this subsection for [administrative costs](#k-5-E-ii). - (ii) **Restriction—** For purposes of [clause (i)](#k-5-E-i), the term “administrative costs” does not include— - (I) investigation and identification of the extent of contamination of a [brownfield site](/usc/42/9601.md?p=39-A); - (II) design and performance of a [response](/usc/42/9601.md?p=25) action; or - (III) monitoring of a natural resource. - (6) **Grant applications—** - (A) **Submission—** - (i) **In general—** - (I) **Application—** An [eligible entity](#k-1) may submit to the [Administrator](/usc/42/9601.md?p=2), through a regional [office](/usc/42/3058f.md?p=1) of the Environmental Protection Agency and in such form as the [Administrator](/usc/42/9601.md?p=2) may require, an application for a grant under this subsection for one or more [brownfield sites](/usc/42/9601.md?p=39-A) (including information on the criteria used by the [Administrator](/usc/42/9601.md?p=2) to rank applications under [subparagraph (C)](#k-6-C), to the extent that the information is available). - (II) **NCP requirements—** The [Administrator](/usc/42/9601.md?p=2) may include in any requirement for submission of an application under [subclause (I)](#k-6-A-i-I) a requirement of the [National Contingency Plan](/usc/42/9601.md?p=31) only to the extent that the requirement is relevant and appropriate to the [program](/usc/42/274l–1.md?p=4) under this subsection. - (ii) **Coordination—** The [Administrator](/usc/42/9601.md?p=2) shall coordinate with other Federal agencies to assist in making [eligible entities](/usc/42/296.md?p=1) aware of other available Federal resources. - (iii) **Guidance—** The [Administrator](/usc/42/9601.md?p=2) shall publish guidance to assist [eligible entities](/usc/42/296.md?p=1) in applying for grants under this subsection. - (B) **Approval—** The [Administrator](/usc/42/9601.md?p=2) shall— - (i) at least annually, complete a review of applications for grants that are received from [eligible entities](/usc/42/296.md?p=1) under this subsection; and - (ii) award grants under this subsection to [eligible entities](/usc/42/296.md?p=1) that the [Administrator](/usc/42/9601.md?p=2) determines have the highest rankings under the ranking criteria established under [subparagraph (C)](#k-6-C). - (C) **Ranking criteria—** The [Administrator](/usc/42/9601.md?p=2) 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](/usc/42/9601.md?p=11) for [environmental assessment](/usc/42/4336e.md?p=4) or remediation, and subsequent reuse, of an area in which one or more [brownfield sites](/usc/42/9601.md?p=39-A) are located. - (ii) The potential of the proposed [project](/usc/42/11360.md?p=20) or the development plan for an area in which one or more [brownfield sites](/usc/42/9601.md?p=39-A) 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](/usc/42/9601.md?p=8), 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](/usc/42/1397h.md?p=c-4), [pollutants](/usc/42/1397h.md?p=c-4), or [contaminants](/usc/42/1397h.md?p=c-4). - (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](/usc/42/9601.md?p=39-A) is located because of the small population or [low income](/usc/42/701.md?p=b-2) 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](/usc/42/9601.md?p=39-A). - (x) The extent to which a grant would address or facilitate the identification and reduction of threats to the health or welfare of [children](/usc/42/256e.md?p=g-2), pregnant women, [minority](/usc/42/299a–1.md?p=d-2) or low-[income](/usc/42/292s.md?p=c-4) communities, or other sensitive populations. - (xi) The extent to which a grant would address a site adjacent to a body of water or a federally designated flood plain. - (xii) The extent to which a grant would facilitate— - (I) the location at a [brownfield site](/usc/42/9601.md?p=39-A) of a [facility](/usc/42/9601.md?p=9) that [generates](/usc/42/2021b.md?p=8) renewable electricity from wind, solar, or geothermal [energy](/usc/42/6311.md?p=7); or - (II) any [energy efficiency](/usc/42/6291.md?p=5) improvement [project](/usc/42/11360.md?p=20) at a [brownfield site](/usc/42/9601.md?p=39-A), including a [project](/usc/42/11360.md?p=20) for a [combined heat and power system](/usc/42/18842.md?p=a-3-B) or a district [energy](/usc/42/6311.md?p=7) system. - (D) **Report on ranking criteria—** Not later than September 30, 2022, the [Administrator](/usc/42/9601.md?p=2) shall submit to Congress a report regarding the [Administrator](/usc/42/9601.md?p=2)’s use of the ranking criteria described in [subparagraph (C)](#k-6-C) in awarding grants under this subsection. - (7) **Implementation of brownfields programs—** - (A) **Establishment of program—** The [Administrator](/usc/42/9601.md?p=2) may provide, or [fund](/usc/42/9601.md?p=11) [eligible entities](/usc/42/296.md?p=1) or nonprofit organizations to provide, [training](/usc/42/285e–2.md?p=b-2), research, and technical assistance to individuals and organizations, as appropriate, to facilitate the [inventory](/usc/42/4370m.md?p=14) of [brownfield sites](/usc/42/9601.md?p=39-A), site assessments, remediation of [brownfield sites](/usc/42/9601.md?p=39-A), community involvement, or site preparation. - (B) **Funding restrictions—** The total Federal [funds](/usc/42/9601.md?p=11) to be expended by the [Administrator](/usc/42/9601.md?p=2) under this paragraph shall not exceed 15 percent of the total amount appropriated to carry out this subsection in any fiscal year. - (8) **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 Government Accountability [Office](/usc/42/3058f.md?p=1), including [chapter 75](/usc/31/chstV-ch75.md) of title 31. - (C) **Violations—** If the [Administrator](/usc/42/9601.md?p=2) determines that a [person](/usc/42/9601.md?p=21) that receives a grant or loan under this subsection has violated or is in [violation](/usc/42/2000e–16a.md?p=c) of a condition of the grant, loan, or applicable Federal law, the [Administrator](/usc/42/9601.md?p=2) may— - (i) terminate the grant or loan; - (ii) require the [person](/usc/42/9601.md?p=21) to repay any [funds](/usc/42/9601.md?p=11) received; and - (iii) seek any other legal [remedies](/usc/42/9601.md?p=24) available to the [Administrator](/usc/42/9601.md?p=2). - (D) **Report to Congress—** Not later than September 30, 2022, the Inspector General of the Environmental Protection Agency shall submit to Congress a report that provides a description of the management of the [program](/usc/42/274l–1.md?p=4) (including a description of the [allocation](/usc/42/2021b.md?p=2) of [funds](/usc/42/9601.md?p=11) under this subsection). - (9) **Leveraging—** An [eligible entity](#k-1) that receives a grant under this subsection may use the [grant funds](/usc/42/5106a.md?p=f-1-B) for a portion of a [project](/usc/42/11360.md?p=20) at a [brownfield site](/usc/42/9601.md?p=39-A) for which funding is received from other sources if the [grant funds](/usc/42/5106a.md?p=f-1-B) are used only for the purposes described in paragraph [(2)](#k-2), [(3)](#k-3), or [(4)](#k-4). - (10) **Agreements—** Each grant or loan made under this subsection shall— - (A) include a requirement of the [National Contingency Plan](/usc/42/9601.md?p=31) only to the extent that the requirement is relevant and appropriate to the [program](/usc/42/274l–1.md?p=4) under this subsection, as determined by the [Administrator](/usc/42/9601.md?p=2); and - (B) be subject to an [agreement](/usc/42/1320b–8.md?p=a-3-A) that— - (i) requires the [recipient](/usc/42/2996a.md?p=6) to— - (I) comply with all applicable Federal and [State](/usc/42/9601.md?p=27) laws; and - (II) ensure that the cleanup protects human health and the [environment](/usc/42/9601.md?p=8); - (ii) requires that the [recipient](/usc/42/2996a.md?p=6) use the grant or loan exclusively for purposes specified in paragraph [(2)](#k-2), [(3)](#k-3), or [(4)](#k-4), as applicable; - (iii) in the case of an application by an [eligible entity](#k-1) under [paragraph (3)(A)](#k-3-A), requires the [eligible entity](#k-1) 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](/usc/42/9601.md?p=2) determines that the matching share would place an undue hardship on the [eligible entity](#k-1); and - (iv) contains such other terms and conditions as the [Administrator](/usc/42/9601.md?p=2) determines to be necessary to carry out this subsection. - (11) **Facility other than brownfield site—** The fact that a [facility](/usc/42/9601.md?p=9) may not be a [brownfield site](/usc/42/9601.md?p=39-A) within the meaning of [section 9601(39)(A) of this title](/usc/42/9601.md?p=39-A) has no effect on the eligibility of the [facility](/usc/42/9601.md?p=9) for assistance under any other provision of Federal law. - (12) **Effect on Federal laws—** Nothing in this subsection affects any [liability](/usc/42/9601.md?p=32) or [response](/usc/42/9601.md?p=25) authority under any Federal law, including— - (A) this chapter (including the last sentence of [section 9601(14) of this title](/usc/42/9601.md?p=14)); - (B) the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act ([42 U.S.C. 6901](/usc/42/6901.md) et seq.); - (C) the Federal Water Pollution Control Act ([33 U.S.C. 1251](/usc/33/1251.md) et seq.); - (D) the Toxic Substances Control Act ([15 U.S.C. 2601](/usc/15/2601.md) et seq.); and - (E) the Safe Drinking Water Act ([42 U.S.C. 300f](/usc/42/300f.md) et seq.). - (13) **Authorization of appropriations—** There is authorized to be appropriated to carry out this subsection $200,000,000 for each of fiscal years 2019 through 2023. # §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](/usc/42/9601.md?p=31) for the [removal](/usc/42/9601.md?p=25) of oil and [hazardous substances](/usc/42/1397h.md?p=c-4), originally prepared and published pursuant to [section 1321 of title 33](/usc/33/1321.md), to reflect and effectuate the responsibilities and powers created by this chapter, in addition to those matters specified in [section 1321(c)(2)](/usc/42/1321.md)[^1] of [title 33](/usc/33.md). Such revision shall include a section of the plan to be known as the national [hazardous substance](/usc/42/1397h.md?p=c-4) [response](/usc/42/9601.md?p=25) plan which shall establish procedures and [standards](/usc/42/1320d.md?p=7) for responding to [releases](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4), [pollutants](/usc/42/1397h.md?p=c-4), and [contaminants](/usc/42/1397h.md?p=c-4), which shall include at a minimum: - (1) methods for discovering and investigating [facilities](/usc/42/9601.md?p=9) at which [hazardous substances](/usc/42/1397h.md?p=c-4) have been disposed of or otherwise come to be located; - (2) methods for evaluating, including analyses of relative cost, and remedying any [releases](/usc/42/9601.md?p=22) or threats of [releases](/usc/42/9601.md?p=22) from [facilities](/usc/42/9601.md?p=9) which pose substantial danger to the public health or the [environment](/usc/42/9601.md?p=8); - (3) methods and criteria for determining the appropriate extent of [removal](/usc/42/9601.md?p=25), [remedy](/usc/42/9601.md?p=24), and other measures authorized by this chapter; - (4) appropriate roles and responsibilities for the Federal, [State](/usc/42/9601.md?p=27), and [local governments](/usc/42/8401a.md) and for interstate and nongovernmental entities in effectuating the plan; - (5) provision for identification, procurement, maintenance, and storage of [response](/usc/42/9601.md?p=25) equipment and supplies; - (6) a method for and assignment of responsibility for reporting the existence of such [facilities](/usc/42/9601.md?p=9) which may be located on federally owned or controlled properties and any [releases](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4) from such [facilities](/usc/42/9601.md?p=9); - (7) means of assuring that [remedial action](/usc/42/9601.md?p=24) measures are [cost-effective](/usc/42/1396e.md?p=e-2) over the period of potential exposure to the [hazardous substances](/usc/42/1397h.md?p=c-4) or contaminated materials; - (8) - (A) criteria for determining priorities among [releases](/usc/42/9601.md?p=22) or threatened [releases](/usc/42/9601.md?p=22) throughout the [United States](/usc/42/9601.md?p=27) for the purpose of taking [remedial action](/usc/42/9601.md?p=24) and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking [removal](/usc/42/9601.md?p=25) action. Criteria and priorities under this paragraph shall be based upon relative risk or danger to public health or welfare or the [environment](/usc/42/9601.md?p=8), in the judgment of the President, taking into account to the extent possible the population at risk, the [hazard](/usc/42/5165f.md?p=a-3) potential of the [hazardous substances](/usc/42/1397h.md?p=c-4) at such [facilities](/usc/42/9601.md?p=9), the potential for contamination of [drinking water supplies](/usc/42/9601.md?p=7), the potential for direct human contact, the potential for destruction of sensitive ecosystems, the damage to [natural resources](/usc/42/9601.md?p=16) which may affect the human food chain and which is associated with any [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22), the contamination or potential contamination of the ambient air which is associated with the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22), [State](/usc/42/9601.md?p=27) preparedness to assume [State](/usc/42/9601.md?p=27) 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](/usc/42/9601.md?p=22) or threatened [releases](/usc/42/9601.md?p=22) throughout the [United States](/usc/42/9601.md?p=27) and shall revise the list no less often than annually. Within one year after December 11, 1980, and annually thereafter, each [State](/usc/42/9601.md?p=27) shall establish and submit for consideration by the President priorities for [remedial action](/usc/42/9601.md?p=24) among known [releases](/usc/42/9601.md?p=22) and potential [releases](/usc/42/9601.md?p=22) in that [State](/usc/42/9601.md?p=27) 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](/usc/42/9601.md?p=27). To the extent practicable, the highest priority [facilities](/usc/42/9601.md?p=9) shall be designated individually and shall be referred to as the “top priority among known [response](/usc/42/9601.md?p=25) targets”, and, to the extent practicable, shall include among the one hundred highest priority [facilities](/usc/42/9601.md?p=9) one such [facility](/usc/42/9601.md?p=9) from each [State](/usc/42/9601.md?p=27) which shall be the [facility](/usc/42/9601.md?p=9) designated by the [State](/usc/42/9601.md?p=27) as presenting the greatest danger to public health or welfare or the [environment](/usc/42/9601.md?p=8) among the known [facilities](/usc/42/9601.md?p=9) in such [State](/usc/42/9601.md?p=27). A [State](/usc/42/9601.md?p=27) shall be allowed to designate its highest priority [facility](/usc/42/9601.md?p=9) only once. Other priority [facilities](/usc/42/9601.md?p=9) or incidents may be listed singly or grouped for [response](/usc/42/9601.md?p=25) priority purposes; - (9) specified roles for private organizations and entities in preparation for [response](/usc/42/9601.md?p=25) and in responding to [releases](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4), including identification of appropriate qualifications and capacity therefor and including consideration of [minority](/usc/42/299a–1.md?p=d-2) firms in accordance with [subsection (f)](#f); and - (10) [standards](/usc/42/1320d.md?p=7) and testing procedures by which alternative or innovative [treatment](/usc/42/9601.md?p=29) technologies can be determined to be appropriate for utilization in [response](/usc/42/9601.md?p=25) actions authorized by this chapter. The plan shall specify procedures, techniques, materials, equipment, and methods to be employed in identifying, removing, or remedying [releases](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4) comparable to those required under section [1321(c)(2)(F)](/usc/33/1321.md) and [(G)](/usc/33/1321.md) and [(j)(1)](/usc/33/1321.md) of title 33. Following publication of the revised [national contingency plan](/usc/42/9601.md?p=31), the [response](/usc/42/9601.md?p=25) to and actions to minimize damage from [hazardous substances](/usc/42/1397h.md?p=c-4) [releases](/usc/42/9601.md?p=22) 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](/usc/42/9601.md?p=31). - (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](/usc/42/9601.md?p=31) to reflect the requirements of such amendments. The portion of such Plan known as “the National [Hazardous Substance](/usc/42/1397h.md?p=c-4) [Response](/usc/42/9601.md?p=25) Plan” shall be revised to provide procedures and [standards](/usc/42/1320d.md?p=7) for [remedial actions](/usc/42/9601.md?p=24) 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](/usc/42/9601.md?p=24). - (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](/usc/5/553.md), the President shall by rule promulgate amendments to the [hazard](/usc/42/5165f.md?p=a-3) ranking system in effect on September 1, 1984. Such amendments shall assure, to the maximum extent feasible, that the [hazard](/usc/42/5165f.md?p=a-3) ranking system accurately assesses the relative degree of risk to human health and the [environment](/usc/42/9601.md?p=8) posed by sites and [facilities](/usc/42/9601.md?p=9) subject to review. The President shall establish an effective date for the amended [hazard](/usc/42/5165f.md?p=a-3) ranking system which is not later than 24 months after October 17, 1986. Such amended [hazard](/usc/42/5165f.md?p=a-3) ranking system shall be applied to any site or [facility](/usc/42/9601.md?p=9) 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](/usc/42/5165f.md?p=a-3) 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](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) from sites or [facilities](/usc/42/9601.md?p=9)) 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](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) 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](/usc/42/5165f.md?p=a-3) ranking of any [facility](/usc/42/9601.md?p=9) which was evaluated in accordance with the criteria under this section before the effective date of the amendments to the [hazard](/usc/42/5165f.md?p=a-3) ranking system under this subsection and which was assigned a national priority under the [National Contingency Plan](/usc/42/9601.md?p=31). - (4) **New information—** Nothing in [paragraph (3)](#c-3) shall preclude the President from taking new information into account in undertaking [response](/usc/42/9601.md?p=25) actions under this chapter. - (d) **Petition for assessment of release—** Any [person](/usc/42/9601.md?p=21) who is, or may be, affected by a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33), may petition the President to conduct a preliminary assessment of the [hazards](/usc/42/5165f.md?p=a-3) to public health and the [environment](/usc/42/9601.md?p=8) which are associated with such [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22). If the President has not previously conducted a preliminary assessment of such [release](/usc/42/9601.md?p=22), 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](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) concerned may pose a threat to human health or the [environment](/usc/42/9601.md?p=8), the President shall promptly evaluate such [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) in accordance with the [hazard](/usc/42/5165f.md?p=a-3) ranking system referred to in [paragraph (8)(A)](#a-8-A) of subsection (a) to determine the national priority of such [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22). - (e) **Releases from earlier sites—** Whenever there has been, after January 1, 1985, a significant [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4) or [pollutants](/usc/42/1397h.md?p=c-4) or [contaminants](/usc/42/1397h.md?p=c-4) 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](/usc/42/5165f.md?p=a-3) ranking system. - (f) **Minority contractors—** In awarding contracts under this chapter, the President shall consider the availability of qualified [minority](/usc/42/299a–1.md?p=d-2) firms. The President shall describe, as part of any annual report submitted to the Congress under this chapter, the participation of [minority](/usc/42/299a–1.md?p=d-2) firms in contracts carried out under this chapter. Such report shall contain a brief description of the contracts which have been awarded to [minority](/usc/42/299a–1.md?p=d-2) firms under this chapter and of the efforts made by the President to encourage the participation of such firms in [programs](/usc/42/274l–1.md?p=4) carried out under this chapter. - (g) **Special study wastes—** - (1) **Application—** This subsection applies to [facilities](/usc/42/9601.md?p=9)— - (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](/usc/42/6921.md?p=b) are present in significant quantities, including any such [facility](/usc/42/9601.md?p=9) from which there has been a [release](/usc/42/9601.md?p=22) of a special study waste. - (2) **Considerations in adding facilities to NPL—** Pending revision of the [hazard](/usc/42/5165f.md?p=a-3) ranking system under [subsection (c)](#c), the President shall consider each of the following factors in adding [facilities](/usc/42/9601.md?p=9) covered by this section to the National Priorities List: - (A) The extent to which [hazard](/usc/42/5165f.md?p=a-3) ranking system score for the [facility](/usc/42/9601.md?p=9) is affected by the presence of any special study waste at, or any [release](/usc/42/9601.md?p=22) from, such [facility](/usc/42/9601.md?p=9). - (B) Available information as to the quantity, toxicity, and concentration of [hazardous substances](/usc/42/1397h.md?p=c-4) that are constituents of any special study waste at, or released from such [facility](/usc/42/9601.md?p=9), the extent of or potential for [release](/usc/42/9601.md?p=22) of such hazardous constituents, the exposure or potential exposure to human population and the [environment](/usc/42/9601.md?p=8), and the degree of [hazard](/usc/42/5165f.md?p=a-3) to human health or the [environment](/usc/42/9601.md?p=8) posed by the [release](/usc/42/9601.md?p=22) of such hazardous constituents at such [facility](/usc/42/9601.md?p=9). This subparagraph refers only to available information on actual concentrations of [hazardous substances](/usc/42/1397h.md?p=c-4) and not on the total quantity of special study waste at such [facility](/usc/42/9601.md?p=9). - (3) **Savings provisions—** Nothing in this subsection shall be construed to limit the authority of the President to [remove](/usc/42/9601.md?p=23) any [facility](/usc/42/9601.md?p=9) which as of October 17, 1986, is included on the National Priorities List from such List, or not to list any [facility](/usc/42/9601.md?p=9) 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](/usc/42/9601.md?p=11) for gathering and analysis of information which will enable the President to consider the specific factors required by [paragraph (2)](#g-2). - (h) **NPL deferral—** - (1) **Deferral to State voluntary cleanups—** At the request of a [State](/usc/42/9601.md?p=27) and subject to paragraphs [(2)](#h-2) and [(3)](#h-3), the President generally shall defer final listing of an [eligible response site](/usc/42/9601.md?p=41-B) on the National Priorities List if the President determines that— - (A) the [State](/usc/42/9601.md?p=27), or another party under an [agreement](/usc/42/1320b–8.md?p=a-3-A) with or order from the [State](/usc/42/9601.md?p=27), is conducting a [response](/usc/42/9601.md?p=25) action at the [eligible response site](/usc/42/9601.md?p=41-B)— - (i) in compliance with a [State](/usc/42/9601.md?p=27) [program](/usc/42/274l–1.md?p=4) that specifically governs [response](/usc/42/9601.md?p=25) actions for the protection of public health and the [environment](/usc/42/9601.md?p=8); and - (ii) that will provide long-term protection of human health and the [environment](/usc/42/9601.md?p=8); or - (B) the [State](/usc/42/9601.md?p=27) is actively pursuing an [agreement](/usc/42/1320b–8.md?p=a-3-A) to perform a [response](/usc/42/9601.md?p=25) action described in [subparagraph (A)](#h-1-A) at the site with a [person](/usc/42/9601.md?p=21) that the [State](/usc/42/9601.md?p=27) has reason to believe is capable of conducting a [response](/usc/42/9601.md?p=25) action that meets the requirements of [subparagraph (A)](#h-1-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](/usc/42/9601.md?p=41-B) on the National Priorities List, the President determines that the [State](/usc/42/9601.md?p=27) or other party is not making reasonable progress toward completing a [response](/usc/42/9601.md?p=25) action at the [eligible response site](/usc/42/9601.md?p=41-B), the President may list the [eligible response site](/usc/42/9601.md?p=41-B) on the National Priorities List. - (3) **Cleanup agreements—** With respect to an [eligible response site](/usc/42/9601.md?p=41-B) under [paragraph (1)(B)](#h-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](/usc/42/9601.md?p=41-B) on the National Priorities List, an [agreement](/usc/42/1320b–8.md?p=a-3-A) described in [paragraph (1)(B)](#h-1-B) has not been reached, the President may defer the listing of the [eligible response site](/usc/42/9601.md?p=41-B) 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](/usc/42/9601.md?p=41-B) on the National Priorities List if the President determines that— - (A) deferral would not be appropriate because the [State](/usc/42/9601.md?p=27), as an [owner or operator](/usc/42/9601.md?p=20-A) or a significant contributor of [hazardous substances](/usc/42/1397h.md?p=c-4) to the [facility](/usc/42/9601.md?p=9), is a potentially responsible party; - (B) the criteria under the [National Contingency Plan](/usc/42/9601.md?p=31) for issuance of a health advisory have been met; or - (C) the conditions in [paragraphs (1) through (3)](#h-1..h-3), as applicable, are no longer being met. # §9606. Abatement actions - (a) **Maintenance, jurisdiction, etc.** In addition to any other action taken by a [State](/usc/42/9601.md?p=27) or [local government](/usc/42/8401a.md), when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the [environment](/usc/42/9601.md?p=8) because of an actual or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) from a [facility](/usc/42/9601.md?p=9), he may require the [Attorney General](/usc/42/14902.md?p=6) of the [United States](/usc/42/9601.md?p=27) to secure such relief as may be necessary to abate such danger or threat, and the district court of the [United States](/usc/42/9601.md?p=27) 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](/usc/42/9601.md?p=27), 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](/usc/42/9601.md?p=8). - (b) **Fines; reimbursement—** - (1) Any [person](/usc/42/9601.md?p=21) who, without sufficient [cause](/usc/42/9908.md?p=c-2), willfully violates, or fails or refuses to comply with, any order of the President under [subsection (a)](#a) may, in an action brought in the appropriate [United States](/usc/42/9601.md?p=27) district court to enforce such order, be fined not more than $25,000 for each day in which such [violation](/usc/42/2000e–16a.md?p=c) occurs or such failure to comply continues. - (2) - (A) Any [person](/usc/42/9601.md?p=21) who receives and complies with the terms of any order issued under [subsection (a)](#a) may, within 60 days after completion of the required action, petition the President for reimbursement from the [Fund](/usc/42/9601.md?p=11) 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](/usc/42/1397h.md?p=c-4) Superfund established under subchapter A of [chapter 98](/usc/26/chstI-ch98.md) 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](/usc/42/9601.md?p=27) district court seeking reimbursement from the [Fund](/usc/42/9601.md?p=11). - (C) Except as provided in [subparagraph (D)](#b-2-D), to obtain reimbursement, the petitioner shall establish by a preponderance of the evidence that it is not [liable](/usc/42/9601.md?p=32) for [response](/usc/42/9601.md?p=25) costs under [section 9607(a) of this title](/usc/42/9607.md?p=a) and that costs for which it seeks reimbursement are reasonable in light of the action required by the relevant order. - (D) A petitioner who is [liable](/usc/42/9601.md?p=32) for [response](/usc/42/9601.md?p=25) costs under [section 9607(a) of this title](/usc/42/9607.md?p=a) may also recover its reasonable costs of [response](/usc/42/9601.md?p=25) to the extent that it can demonstrate, on the administrative record, that the President’s decision in selecting the [response](/usc/42/9601.md?p=25) action ordered was arbitrary and capricious or was otherwise not in accordance with law. Reimbursement awarded under this subparagraph shall include all reasonable [response](/usc/42/9601.md?p=25) 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)](#b-2-C) or [(D)](#b-2-D) may include appropriate costs, fees, and other expenses in accordance with subsections (a) and (d) of [section 2412 of title 28](/usc/28/2412.md). - (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](/usc/42/9601.md?p=2) of the Environmental Protection Agency shall, after consultation with the [Attorney General](/usc/42/14902.md?p=6), establish and publish guidelines for using the imminent [hazard](/usc/42/5165f.md?p=a-3), enforcement, and emergency [response](/usc/42/9601.md?p=25) authorities of this section and other existing statutes administered by the [Administrator](/usc/42/9601.md?p=2) 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](/usc/42/1397h.md?p=c-4) [response](/usc/42/9601.md?p=25) plan, and shall include, at a minimum, the assignment of responsibility for coordinating [response](/usc/42/9601.md?p=25) actions with the issuance of administrative orders, enforcement of [standards](/usc/42/1320d.md?p=7) and permits, the gathering of information, and other imminent [hazard](/usc/42/5165f.md?p=a-3) and emergency powers authorized by (1) sections 1321(c)(2),[^1] 1318, 1319, and 1364(a) of [title 33](/usc/33.md), (2) sections [6927](/usc/42/6927.md), [6928](/usc/42/6928.md), [6934](/usc/42/6934.md), and [6973](/usc/42/6973.md) of this title, (3) sections [300j–4](/usc/42/300j–4.md) and [300i](/usc/42/300i.md) of this title, (4) sections [7413](/usc/42/7413.md), [7414](/usc/42/7414.md), and [7603](/usc/42/7603.md) of this title, and (5) [section 2606 of title 15](/usc/15/2606.md). # §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)](#b) of this section— - (1) the [owner](/usc/42/13641.md?p=4) and operator of a [vessel](/usc/42/9601.md?p=28) or a [facility](/usc/42/9601.md?p=9), - (2) any [person](/usc/42/9601.md?p=21) who at the time of [disposal](/usc/42/9601.md?p=29) of any [hazardous substance](/usc/42/1397h.md?p=c-4) owned or operated any [facility](/usc/42/9601.md?p=9) at which such [hazardous substances](/usc/42/1397h.md?p=c-4) were disposed of, - (3) any [person](/usc/42/9601.md?p=21) who by contract, [agreement](/usc/42/1320b–8.md?p=a-3-A), or otherwise arranged for [disposal](/usc/42/9601.md?p=29) or [treatment](/usc/42/9601.md?p=29), or arranged with a transporter for [transport](/usc/42/9601.md?p=26) for [disposal](/usc/42/9601.md?p=29) or [treatment](/usc/42/9601.md?p=29), of [hazardous substances](/usc/42/1397h.md?p=c-4) owned or possessed by such [person](/usc/42/9601.md?p=21), by any other party or entity, at any [facility](/usc/42/9601.md?p=9) or [incineration vessel](/usc/42/9601.md?p=38) owned or operated by another party or entity and containing such [hazardous substances](/usc/42/1397h.md?p=c-4), and - (4) any [person](/usc/42/9601.md?p=21) who accepts or accepted any [hazardous substances](/usc/42/1397h.md?p=c-4) for [transport](/usc/42/9601.md?p=26) to [disposal](/usc/42/9601.md?p=29) or [treatment](/usc/42/9601.md?p=29) [facilities](/usc/42/9601.md?p=9), [incineration vessels](/usc/42/9601.md?p=38) or sites selected by such [person](/usc/42/9601.md?p=21), from which there is a [release](/usc/42/9601.md?p=22), or a threatened [release](/usc/42/9601.md?p=22) which [causes](/usc/42/9908.md?p=c-2) the incurrence of [response](/usc/42/9601.md?p=25) costs, of a [hazardous substance](/usc/42/1397h.md?p=c-4), shall be [liable](/usc/42/9601.md?p=32) for— - (A) all costs of [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) incurred by the [United States](/usc/42/9601.md?p=27) Government or a [State](/usc/42/9601.md?p=27) or an [Indian tribe](/usc/42/9601.md?p=36) not inconsistent with the [national contingency plan](/usc/42/9601.md?p=31); - (B) any other necessary costs of [response](/usc/42/9601.md?p=25) incurred by any other [person](/usc/42/9601.md?p=21) consistent with the [national contingency plan](/usc/42/9601.md?p=31); - (C) [damages](/usc/42/9601.md?p=6) for injury to, destruction of, or loss of [natural resources](/usc/42/9601.md?p=16), including the reasonable costs of assessing such injury, destruction, or loss resulting from such a [release](/usc/42/9601.md?p=22); and - (D) the costs of any health assessment or health effects study carried out under [section 9604(i) of this title](/usc/42/9604.md?p=i). The amounts recoverable in an action under this section shall include interest on the amounts recoverable under [subparagraphs (A) through (D)](#a-A..a-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](/usc/42/1397h.md?p=c-4) Superfund established under subchapter A of [chapter 98](/usc/26/chstI-ch98.md) 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](/usc/42/9601.md?p=32) under [subsection (a)](#a) of this section for a [person](/usc/42/9601.md?p=21) otherwise [liable](/usc/42/9601.md?p=32) who can establish by a preponderance of the evidence that the [release](/usc/42/9601.md?p=22) or threat of [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) and the [damages](/usc/42/9601.md?p=6) resulting therefrom were caused solely by— - (1) an [act of God](/usc/42/9601.md?p=1); - (2) an act of war; - (3) an act or omission of a third party other than an [employee](/usc/42/1320a–7h.md?p=e-7) or agent of the defendant, or than one whose act or omission occurs in connection with a [contractual relationship](/usc/42/9601.md?p=35-A), 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](/usc/42/1397h.md?p=c-4) concerned, taking into consideration the characteristics of such [hazardous substance](/usc/42/1397h.md?p=c-4), 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](/usc/42/9601.md?p=32) under this section of an [owner or operator](/usc/42/9601.md?p=20-A) or other responsible [person](/usc/42/9601.md?p=21) for each [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) or incident involving [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) shall not exceed— - (A) for any [vessel](/usc/42/9601.md?p=28), other than an [incineration vessel](/usc/42/9601.md?p=38), which carries any [hazardous substance](/usc/42/1397h.md?p=c-4) as cargo or residue, $300 per gross ton, or $5,000,000, whichever is greater; - (B) for any other [vessel](/usc/42/9601.md?p=28), other than an [incineration vessel](/usc/42/9601.md?p=38), $300 per gross ton, or $500,000, whichever is greater; - (C) for any [motor vehicle](/usc/42/13211.md?p=13), aircraft, hazardous liquid pipeline [facility](/usc/42/9601.md?p=9) (as defined in [section 60101(a) of title 49](/usc/49/60101.md?p=a)), 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](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4) as defined in [section 9601(14)(A) of this title](/usc/42/9601.md) into the [navigable waters](/usc/42/9601.md?p=15), $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](/usc/42/9601.md?p=22) in each such class and to the economic impact of such limits on each such class; or - (D) for any [incineration vessel](/usc/42/9601.md?p=38) or any [facility](/usc/42/9601.md?p=9) other than those specified in subparagraph (C) of this paragraph, the total of all costs of [response](/usc/42/9601.md?p=25) plus $50,000,000 for any [damages](/usc/42/9601.md?p=6) under this subchapter. - (2) Notwithstanding the limitations in paragraph (1) of this subsection, the [liability](/usc/42/9601.md?p=32) of an [owner or operator](/usc/42/9601.md?p=20-A) or other responsible [person](/usc/42/9601.md?p=21) under this section shall be the full and total costs of [response](/usc/42/9601.md?p=25) and [damages](/usc/42/9601.md?p=6), if (A)(i) the [release](/usc/42/9601.md?p=22) or threat of [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) was the result of willful misconduct or willful negligence within the privity or knowledge of such [person](/usc/42/9601.md?p=21), or (ii) the primary [cause](/usc/42/9908.md?p=c-2) of the [release](/usc/42/9601.md?p=22) was a [violation](/usc/42/2000e–16a.md?p=c) (within the privity or knowledge of such [person](/usc/42/9601.md?p=21)) of applicable safety, [construction](/usc/42/7479.md?p=2-C), or operating [standards](/usc/42/1320d.md?p=7) or regulations; or (B) such [person](/usc/42/9601.md?p=21) fails or refuses to provide all reasonable cooperation and assistance requested by a responsible public official in connection with [response](/usc/42/9601.md?p=25) activities under the [national contingency plan](/usc/42/9601.md?p=31) with respect to regulated carriers subject to the provisions of [title 49](/usc/49.md) or [vessels](/usc/42/9601.md?p=28) subject to the provisions of title [33](/usc/33.md) or [46](/usc/46.md), subparagraph (A)(ii) of this paragraph shall be deemed to refer to Federal [standards](/usc/42/1320d.md?p=7) or regulations. - (3) If any [person](/usc/42/9601.md?p=21) who is [liable](/usc/42/9601.md?p=32) for a [release](/usc/42/9601.md?p=22) or threat of [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) fails without sufficient [cause](/usc/42/9908.md?p=c-2) to properly provide [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) upon order of the President pursuant to section [9604](/usc/42/9604.md) or [9606](/usc/42/9606.md) of this title, such [person](/usc/42/9601.md?p=21) may be [liable](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) for punitive [damages](/usc/42/9601.md?p=6) in an amount at least equal to, and not more than three times, the amount of any costs incurred by the [Fund](/usc/42/9601.md?p=11) as a result of such failure to take proper action. The President is authorized to commence a civil action against any such [person](/usc/42/9601.md?p=21) to recover the punitive [damages](/usc/42/9601.md?p=6), which shall be in addition to any costs recovered from such [person](/usc/42/9601.md?p=21) pursuant to [section 9612(c) of this title](/usc/42/9612.md?p=c). Any moneys received by the [United States](/usc/42/9601.md?p=27) pursuant to this subsection shall be deposited in the [Fund](/usc/42/9601.md?p=11). - (d) **Rendering care or advice—** - (1) **In general—** Except as provided in [paragraph (2)](#d-2), no [person](/usc/42/9601.md?p=21) shall be [liable](/usc/42/9601.md?p=32) under this subchapter for costs or [damages](/usc/42/9601.md?p=6) as a result of actions taken or omitted in the course of rendering care, assistance, or advice in accordance with the [National Contingency Plan](/usc/42/9601.md?p=31) (“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](/usc/42/9601.md?p=8) as a result of any [releases](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) or the threat thereof. This paragraph shall not preclude [liability](/usc/42/9601.md?p=32) for costs or [damages](/usc/42/9601.md?p=6) as the result of negligence on the part of such [person](/usc/42/9601.md?p=21). - (2) **State and local governments—** No [State](/usc/42/9601.md?p=27) or [local government](/usc/42/8401a.md) shall be [liable](/usc/42/9601.md?p=32) under this subchapter for costs or [damages](/usc/42/9601.md?p=6) as a result of actions taken in [response](/usc/42/9601.md?p=25) to an emergency created by the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) generated by or from a [facility](/usc/42/9601.md?p=9) owned by another [person](/usc/42/9601.md?p=21). This paragraph shall not preclude [liability](/usc/42/9601.md?p=32) for costs or [damages](/usc/42/9601.md?p=6) as a result of gross negligence or intentional misconduct by the [State](/usc/42/9601.md?p=27) or [local government](/usc/42/8401a.md). 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](/usc/42/9601.md?p=32) of any [person](/usc/42/9601.md?p=21) covered by the provisions of paragraph [(1)](#a-1), [(2)](#a-2), [(3)](#a-3), or [(4)](#a-4) of subsection (a) of this section with respect to the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) concerned. - (e) **Indemnification, hold harmless, etc., agreements or conveyances; subrogation rights—** - (1) No indemnification, hold harmless, or similar [agreement](/usc/42/1320b–8.md?p=a-3-A) or conveyance shall be effective to transfer from the [owner or operator](/usc/42/9601.md?p=20-A) of any [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) or from any [person](/usc/42/9601.md?p=21) who may be [liable](/usc/42/9601.md?p=32) for a [release](/usc/42/9601.md?p=22) or threat of [release](/usc/42/9601.md?p=22) under this section, to any other [person](/usc/42/9601.md?p=21) the [liability](/usc/42/9601.md?p=32) imposed under this section. Nothing in this subsection shall bar any [agreement](/usc/42/1320b–8.md?p=a-3-A) to insure, hold harmless, or indemnify a party to such [agreement](/usc/42/1320b–8.md?p=a-3-A) for any [liability](/usc/42/9601.md?p=32) under this section. - (2) Nothing in this subchapter, including the provisions of paragraph (1) of this subsection, shall bar a [cause](/usc/42/9908.md?p=c-2) of action that an [owner or operator](/usc/42/9601.md?p=20-A) or any other [person](/usc/42/9601.md?p=21) subject to [liability](/usc/42/9601.md?p=32) under this section, or a [guarantor](/usc/42/9601.md?p=13), has or would have, by reason of subrogation or otherwise against any [person](/usc/42/9601.md?p=21). - (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](/usc/42/9601.md?p=16) under subparagraph (C) of subsection (a) [liability](/usc/42/9601.md?p=32) shall be to the [United States](/usc/42/9601.md?p=27) Government and to any [State](/usc/42/9601.md?p=27) for [natural resources](/usc/42/9601.md?p=16) within the [State](/usc/42/9601.md?p=27) or belonging to, managed by, controlled by, or appertaining to such [State](/usc/42/9601.md?p=27) and to any [Indian tribe](/usc/42/9601.md?p=36) for [natural resources](/usc/42/9601.md?p=16) belonging to, managed by, controlled by, or appertaining to such tribe, or held in [trust](/usc/42/12854.md?p=6) for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a [trust](/usc/42/12854.md?p=6) restriction on alienation: Provided, however, That no [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) or [State](/usc/42/9601.md?p=27) or [Indian tribe](/usc/42/9601.md?p=36) shall be imposed under subparagraph (C) of subsection (a), where the party sought to be charged has demonstrated that the [damages](/usc/42/9601.md?p=6) to [natural resources](/usc/42/9601.md?p=16) complained of were specifically identified as an irreversible and irretrievable commitment of [natural resources](/usc/42/9601.md?p=16) in an [environmental impact statement](/usc/42/4336e.md?p=6), or other comparable [environment](/usc/42/9601.md?p=8) analysis, and the decision to grant a permit or license authorizes such commitment of [natural resources](/usc/42/9601.md?p=16), and the [facility](/usc/42/9601.md?p=9) or [project](/usc/42/11360.md?p=20) was otherwise operating within the terms of its permit or license, so long as, in the case of [damages](/usc/42/9601.md?p=6) to an [Indian tribe](/usc/42/9601.md?p=36) occurring pursuant to a Federal permit or license, the issuance of that permit or license was not inconsistent with the [fiduciary](#n-5-A) duty of the [United States](/usc/42/9601.md?p=27) with respect to such [Indian tribe](/usc/42/9601.md?p=36). The President, or the authorized [representative](/usc/42/3058f.md?p=5) of any [State](/usc/42/9601.md?p=27), shall act on behalf of the public as trustee of such [natural resources](/usc/42/9601.md?p=16) to recover for such [damages](/usc/42/9601.md?p=6). Sums recovered by the [United States](/usc/42/9601.md?p=27) 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](/usc/42/9601.md?p=16). Sums recovered by a [State](/usc/42/9601.md?p=27) as trustee under this subsection shall be available for use only to restore, replace, or acquire the equivalent of such [natural resources](/usc/42/9601.md?p=16) by the [State](/usc/42/9601.md?p=27). The measure of [damages](/usc/42/9601.md?p=6) in any action under subparagraph (C) of subsection (a) shall not be limited by the sums which can be used to restore or replace such resources. There shall be no double recovery under this chapter for natural resource [damages](/usc/42/9601.md?p=6), including the costs of damage assessment or restoration, rehabilitation, or acquisition for the same [release](/usc/42/9601.md?p=22) and natural resource. There shall be no recovery under the authority of subparagraph (C) of subsection (a) where such [damages](/usc/42/9601.md?p=6) and the [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) from which such [damages](/usc/42/9601.md?p=6) 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](/usc/42/9601.md?p=31) published under [section 9605 of this title](/usc/42/9605.md) the Federal officials who shall act on behalf of the public as trustees for [natural resources](/usc/42/9601.md?p=16) under this chapter and [section 1321 of title 33](/usc/33/1321.md). Such officials shall assess [damages](/usc/42/9601.md?p=6) for injury to, destruction of, or loss of [natural resources](/usc/42/9601.md?p=16) for purposes of this chapter and such [section 1321 of title 33](/usc/33/1321.md) for those resources under their trusteeship and may, upon request of and reimbursement from a [State](/usc/42/9601.md?p=27) and at the Federal officials’ discretion, assess [damages](/usc/42/9601.md?p=6) for those [natural resources](/usc/42/9601.md?p=16) under the [State](/usc/42/9601.md?p=27)’s trusteeship. - (B) **State—** The [Governor](/usc/42/6372.md?p=1) of each [State](/usc/42/9601.md?p=27) shall designate [State](/usc/42/9601.md?p=27) officials who may act on behalf of the public as trustees for [natural resources](/usc/42/9601.md?p=16) under this chapter and [section 1321 of title 33](/usc/33/1321.md) and shall notify the President of such designations. Such [State](/usc/42/9601.md?p=27) officials shall assess [damages](/usc/42/9601.md?p=6) to [natural resources](/usc/42/9601.md?p=16) for the purposes of this chapter and such [section 1321 of title 33](/usc/33/1321.md) for those [natural resources](/usc/42/9601.md?p=16) under their trusteeship. - (C) **Rebuttable presumption—** Any determination or assessment of [damages](/usc/42/9601.md?p=6) to [natural resources](/usc/42/9601.md?p=16) for the purposes of this chapter and [section 1321 of title 33](/usc/33/1321.md) made by a Federal or [State](/usc/42/9601.md?p=27) trustee in accordance with the regulations promulgated under [section 9651(c) of this title](/usc/42/9651.md?p=c) 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](/usc/33/1321.md). - (g) **Federal agencies—** For provisions relating to Federal agencies, see [section 9620 of this title](/usc/42/9620.md). - (h) **Owner or operator of vessel—** The [owner or operator](/usc/42/9601.md?p=20-A) of a [vessel](/usc/42/9601.md?p=28) shall be [liable](/usc/42/9601.md?p=32) in accordance with this section, under maritime tort law, and as provided under [section 9614 of this title](/usc/42/9614.md) notwithstanding any provision of the Act of March 3, 1851 ([46 U.S.C. 183ff](https://uscode.house.gov/view.xhtml?req=(/us/usc/t46/s183ff)))[^1] or the absence of any physical damage to the proprietary interest of the [claimant](/usc/42/9601.md?p=5). - (i) **Application of a registered pesticide product—** No [person](/usc/42/9601.md?p=21) (including the [United States](/usc/42/9601.md?p=27) or any [State](/usc/42/9601.md?p=27) or [Indian tribe](/usc/42/9601.md?p=36)) may recover under the authority of this section for any [response](/usc/42/9601.md?p=25) costs or [damages](/usc/42/9601.md?p=6) resulting from the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act [[7 U.S.C. 136](/usc/7/136.md) et seq.]. Nothing in this paragraph shall affect or modify in any way the obligations or [liability](/usc/42/9601.md?p=32) of any [person](/usc/42/9601.md?p=21) under any other provision of [State](/usc/42/9601.md?p=27) or Federal law, including common law, for [damages](/usc/42/9601.md?p=6), injury, or loss resulting from a [release](/usc/42/9601.md?p=22) of any [hazardous substance](/usc/42/1397h.md?p=c-4) or for [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) or the costs of [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) of such [hazardous substance](/usc/42/1397h.md?p=c-4). - (j) **Obligations or liability pursuant to federally permitted release—** Recovery by any [person](/usc/42/9601.md?p=21) (including the [United States](/usc/42/9601.md?p=27) or any [State](/usc/42/9601.md?p=27) or [Indian tribe](/usc/42/9601.md?p=36)) for [response](/usc/42/9601.md?p=25) costs or [damages](/usc/42/9601.md?p=6) resulting from a [federally permitted release](/usc/42/9601.md?p=10) 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](/usc/42/9601.md?p=32) of any [person](/usc/42/9601.md?p=21) under any other provision of [State](/usc/42/9601.md?p=27) or Federal law, including common law, for [damages](/usc/42/9601.md?p=6), injury, or loss resulting from a [release](/usc/42/9601.md?p=22) of any [hazardous substance](/usc/42/1397h.md?p=c-4) or for [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) or the costs of [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) of such [hazardous substance](/usc/42/1397h.md?p=c-4). In addition, costs of [response](/usc/42/9601.md?p=25) incurred by the Federal Government in connection with a discharge specified in section [9601(10)(B)](/usc/42/9601.md) or [(C)](/usc/42/9601.md) of this title shall be recoverable in an action brought under [section 1319(b) of title 33](/usc/33/1319.md?p=b). - (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](/usc/42/9601.md?p=32) established by this section or any other law for the [owner or operator](/usc/42/9601.md?p=20-A) of a [hazardous waste](/usc/42/9601.md?p=29) [disposal](/usc/42/9601.md?p=29) [facility](/usc/42/9601.md?p=9) which has received a permit under subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq.], shall be transferred to and assumed by the Post-closure [Liability](/usc/42/9601.md?p=32) [Fund](/usc/42/9601.md?p=11) established by [section 9641](/usc/42/9641.md)[^1] of this title when— - (A) such [facility](/usc/42/9601.md?p=9) and the [owner](/usc/42/13641.md?p=4) and operator thereof has complied with the requirements of subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq.] and regulations issued thereunder, which may affect the performance of such [facility](/usc/42/9601.md?p=9) after closure; and - (B) such [facility](/usc/42/9601.md?p=9) has been closed in accordance with such regulations and the conditions of such permit, and such [facility](/usc/42/9601.md?p=9) 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](/usc/42/9601.md?p=22) from confinement of any [hazardous substance](/usc/42/1397h.md?p=c-4) or other risk to public health or welfare will occur. - (2) Such transfer of [liability](/usc/42/9601.md?p=32) shall be effective ninety days after the [owner or operator](/usc/42/9601.md?p=20-A) of such [facility](/usc/42/9601.md?p=9) notifies the [Administrator](/usc/42/9601.md?p=2) of the Environmental Protection Agency (and the [State](/usc/42/9601.md?p=27) where it has an authorized [program](/usc/42/274l–1.md?p=4) under section 3006(b) of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6926(b)](/usc/42/6926.md?p=b)]) that the conditions imposed by this subsection have been satisfied. If within such ninety-day period the [Administrator](/usc/42/9601.md?p=2) of the Environmental Protection Agency or such [State](/usc/42/9601.md?p=27) determines that any such [facility](/usc/42/9601.md?p=9) has not complied with all the conditions imposed by this subsection or that insufficient information has been provided to demonstrate such compliance, the [Administrator](/usc/42/9601.md?p=2) or such [State](/usc/42/9601.md?p=27) shall so notify the [owner](/usc/42/13641.md?p=4) and operator of such [facility](/usc/42/9601.md?p=9) and the [administrator](/usc/42/9601.md?p=2) of the [Fund](/usc/42/9601.md?p=11) established by [section 9641](/usc/42/9641.md)[^1] of this title, and the [owner](/usc/42/13641.md?p=4) and operator of such [facility](/usc/42/9601.md?p=9) shall continue to be [liable](/usc/42/9601.md?p=32) with respect to such [facility](/usc/42/9601.md?p=9) under this section and other law until such time as the [Administrator](/usc/42/9601.md?p=2) and such [State](/usc/42/9601.md?p=27) determines that such [facility](/usc/42/9601.md?p=9) has complied with all conditions imposed by this subsection. A determination by the [Administrator](/usc/42/9601.md?p=2) or such [State](/usc/42/9601.md?p=27) that a [facility](/usc/42/9601.md?p=9) 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](/usc/42/9601.md?p=27) in specific terms the data required. - (3) In addition to the assumption of [liability](/usc/42/9601.md?p=32) of [owners](/usc/42/13641.md?p=4) and operators under paragraph (1) of this subsection, the Post-closure [Liability](/usc/42/9601.md?p=32) [Fund](/usc/42/9601.md?p=11) established by [section 9641](/usc/42/9641.md)[^1] of this title may be used to pay costs of monitoring and care and maintenance of a site incurred by other [persons](/usc/42/9601.md?p=21) after the period of monitoring required by regulations under subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq.] for [hazardous waste](/usc/42/9601.md?p=29) [disposal](/usc/42/9601.md?p=29) [facilities](/usc/42/9601.md?p=9) meeting the conditions of paragraph (1) of this subsection. - (4) - (A) Not later than one year after December 11, 1980, the [Secretary](/usc/42/242q–4.md?p=2) 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](/usc/42/9601.md?p=29) [disposal](/usc/42/9601.md?p=29) [facilities](/usc/42/9601.md?p=9) to which this subsection applies. Such study shall include a specification of adequate and realistic minimum [standards](/usc/42/1320d.md?p=7) 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](/usc/42/274l–1.md?p=4), and actions necessary to make privately placed insurance a practical and effective option to the financing system for the Post-closure [Liability](/usc/42/9601.md?p=32) [Fund](/usc/42/9601.md?p=11) 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](/usc/42/9601.md?p=29) [disposal](/usc/42/9601.md?p=29) [facilities](/usc/42/9601.md?p=9) 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](/usc/42/1320d.md?p=7) 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](/usc/42/1320d.md?p=7). - (C) In the event any privately placed insurance plan qualifies under [subparagraph (B)](#k-4-B), any [person](/usc/42/9601.md?p=21) 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](/usc/42/9601.md?p=32) [Fund](/usc/42/9601.md?p=11) 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](/usc/42/9611.md), no [liability](/usc/42/9601.md?p=32) shall be transferred to or assumed by the Post-Closure [Liability](/usc/42/9601.md?p=32) [Trust Fund](/usc/42/9601.md?p=11) established by [section 9641](/usc/42/9641.md)[^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](/usc/42/4370m.md?p=3) 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](/usc/42/274l–1.md?p=4) for the management of the [liabilities](/usc/42/9601.md?p=32) associated with [hazardous waste](/usc/42/9601.md?p=29) [treatment](/usc/42/9601.md?p=29), storage, and [disposal](/usc/42/9601.md?p=29) sites after their closure which complements the policies set forth in the Hazardous and [Solid Waste](/usc/42/7546.md?p=a-1) Amendments of 1984 and assures the protection of human health and the [environment](/usc/42/9601.md?p=8). - (B) **Program elements.—** The [program](/usc/42/274l–1.md?p=4) referred to in [subparagraph (A)](#k-6-A) shall be designed to assure each of the following: - (i) Incentives are created and maintained for the safe management and [disposal](/usc/42/9601.md?p=29) of [hazardous wastes](/usc/42/9601.md?p=29) so as to assure protection of human health and the [environment](/usc/42/9601.md?p=8). - (ii) Members of the public will have reasonable confidence that [hazardous wastes](/usc/42/9601.md?p=29) 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](/usc/42/9601.md?p=21) who are or seek to become [owners](/usc/42/13641.md?p=4) and operators of [hazardous waste](/usc/42/9601.md?p=29) [disposal](/usc/42/9601.md?p=29) [facilities](/usc/42/9601.md?p=9) will be able to manage their potential future [liabilities](/usc/42/9601.md?p=32) and to attract the investment capital necessary to build, operate, and close such [facilities](/usc/42/9601.md?p=9) in a manner which assures protection of human health and the [environment](/usc/42/9601.md?p=8). - (C) **Assessments.—** The study under this paragraph shall include assessments of [treatment](/usc/42/9601.md?p=29), storage, and [disposal](/usc/42/9601.md?p=29) [facilities](/usc/42/9601.md?p=9) which have been or are likely to be issued a permit under section 3005 of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6925](/usc/42/6925.md)] and the likelihood of future insolvency on the part of [owners](/usc/42/13641.md?p=4) and operators of such [facilities](/usc/42/9601.md?p=9). Separate assessments shall be made for different classes of [facilities](/usc/42/9601.md?p=9) and for different classes of land [disposal](/usc/42/9601.md?p=29) [facilities](/usc/42/9601.md?p=9) and shall include but not be limited to— - (i) the current and future financial capabilities of [facility](/usc/42/9601.md?p=9) [owners](/usc/42/13641.md?p=4) and operators; - (ii) the current and future costs associated with [facilities](/usc/42/9601.md?p=9), including the costs of routine monitoring and maintenance, compliance monitoring, corrective action, natural resource [damages](/usc/42/9601.md?p=6), and [liability](/usc/42/9601.md?p=32) for [damages](/usc/42/9601.md?p=6) to third parties; and - (iii) the availability of mechanisms by which [owners](/usc/42/13641.md?p=4) and operators of such [facilities](/usc/42/9601.md?p=9) 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](/usc/42/9601.md?p=2), the [Secretary](/usc/42/242q–4.md?p=2) of [Commerce](/usc/42/6311.md?p=7), the [Secretary](/usc/42/242q–4.md?p=2) 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](/usc/42/7546.md?p=a-1) Amendments of 1984 to serve the purposes set forth in [subparagraph (B)](#k-6-B) and to assure that the current and future costs associated with [hazardous waste](/usc/42/9601.md?p=29) [facilities](/usc/42/9601.md?p=9), including post-closure costs, will be adequately financed and, to the greatest extent possible, borne by the [owners](/usc/42/13641.md?p=4) and operators of such [facilities](/usc/42/9601.md?p=9). 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](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq., 6991 et seq.]; - (ii) voluntary risk pooling by [owners](/usc/42/13641.md?p=4) and operators; - (iii) legislation to require risk pooling by [owners](/usc/42/13641.md?p=4) and operators; - (iv) [modification](/usc/42/7501.md?p=4) of the Post-Closure [Liability](/usc/42/9601.md?p=32) [Trust Fund](/usc/42/9601.md?p=11) previously established by [section 9641](/usc/42/9641.md)[^1] of this title, and the conditions for transfer of [liability](/usc/42/9601.md?p=32) under this subsection, including limiting the transfer of some or all [liability](/usc/42/9601.md?p=32) under this subsection only in the case of insolvency of [owners](/usc/42/13641.md?p=4) and operators; - (v) private insurance; - (vi) insurance provided by the Federal Government; - (vii) coinsurance, reinsurance, or pooled-risk insurance, whether provided by the private sector or provided or assisted by the Federal Government; and - (viii) creation of a new [program](/usc/42/274l–1.md?p=4) to be administered by a new or existing Federal agency or by a federally chartered [corporation](/usc/42/2296b–7.md?p=1). - (F) **Recommendations.—** The Comptroller General shall consider options for funding any [program](/usc/42/274l–1.md?p=4) under this section and shall, to the extent necessary, make recommendations to the appropriate committees of Congress for additional authority to implement such [program](/usc/42/274l–1.md?p=4). - (l) **Federal lien—** - (1) **In general—** All costs and [damages](/usc/42/9601.md?p=6) for which a [person](/usc/42/9601.md?p=21) is [liable](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) under [subsection (a)](#a) of this section (other than the [owner or operator](/usc/42/9601.md?p=20-A) of a [vessel](/usc/42/9601.md?p=28) under [paragraph (1)](#a-1) of subsection (a)) shall constitute a lien in favor of the [United States](/usc/42/9601.md?p=27) upon all real property and rights to such property which— - (A) belong to such [person](/usc/42/9601.md?p=21); and - (B) are subject to or affected by a [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24). - (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](/usc/42/9601.md?p=27) with respect to a [response](/usc/42/9601.md?p=25) action under this chapter. - (B) The time that the [person](/usc/42/9601.md?p=21) referred to in [paragraph (1)](#l-1) is provided (by certified or registered mail) written notice of potential [liability](/usc/42/9601.md?p=32). Such lien shall continue until the [liability](/usc/42/9601.md?p=32) for the costs (or a judgment against the [person](/usc/42/9601.md?p=21) arising out of such [liability](/usc/42/9601.md?p=32)) is satisfied or becomes unenforceable through operation of the statute of limitations provided in [section 9613 of this title](/usc/42/9613.md). - (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](/usc/42/9601.md?p=27) law before notice of the lien has been filed in the appropriate [office](/usc/42/3058f.md?p=1) within the [State](/usc/42/9601.md?p=27) (or county or other governmental subdivision), as designated by [State](/usc/42/9601.md?p=27) 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](/usc/42/9601.md?p=27) 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](/usc/42/9601.md?p=27) has not by law designated one [office](/usc/42/3058f.md?p=1) for the receipt of such notices of liens, the notice shall be filed in the [office](/usc/42/3058f.md?p=1) of the clerk of the [United States](/usc/42/9601.md?p=27) 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](/usc/26/6323.md?p=h). - (4) **Action in rem—** The costs constituting the lien may be recovered in an action in rem in the [United States](/usc/42/9601.md?p=27) district court for the district in which the [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) is occurring or has occurred. Nothing in this subsection shall affect the right of the [United States](/usc/42/9601.md?p=27) to bring an action against any [person](/usc/42/9601.md?p=21) to recover all costs and [damages](/usc/42/9601.md?p=6) for which such [person](/usc/42/9601.md?p=21) is [liable](/usc/42/9601.md?p=32) under [subsection (a)](#a) of this section. - (m) **Maritime lien—** All costs and [damages](/usc/42/9601.md?p=6) for which the [owner or operator](/usc/42/9601.md?p=20-A) of a [vessel](/usc/42/9601.md?p=28) is [liable](/usc/42/9601.md?p=32) under [subsection (a)(1)](#a-1) with respect to a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) from such [vessel](/usc/42/9601.md?p=28) shall constitute a maritime lien in favor of the [United States](/usc/42/9601.md?p=27) on such [vessel](/usc/42/9601.md?p=28). Such costs may be recovered in an action in rem in the district court of the [United States](/usc/42/9601.md?p=27) for the district in which the [vessel](/usc/42/9601.md?p=28) may be found. Nothing in this subsection shall affect the right of the [United States](/usc/42/9601.md?p=27) to bring an action against the [owner or operator](/usc/42/9601.md?p=20-A) of such [vessel](/usc/42/9601.md?p=28) in any court of competent jurisdiction to recover such costs. - (n) **Liability of fiduciaries—** - (1) **In general—** The [liability](/usc/42/9601.md?p=32) of a [fiduciary](#n-5-A) under any provision of this chapter for the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) at, from, or in connection with a [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) held in a [fiduciary capacity](#n-5-B) shall not exceed the assets held in the [fiduciary capacity](#n-5-B). - (2) **Exclusion—** [Paragraph (1)](#n-1) does not apply to the extent that a [person](/usc/42/9601.md?p=21) is [liable](/usc/42/9601.md?p=32) under this chapter independently of the [person](/usc/42/9601.md?p=21)’s ownership of a [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) as a [fiduciary](#n-5-A) or actions taken in a [fiduciary capacity](#n-5-B). - (3) **Limitation—** Paragraphs [(1)](#n-1) and [(4)](#n-4) do not limit the [liability](/usc/42/9601.md?p=32) pertaining to a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) if negligence of a [fiduciary](#n-5-A) [causes](/usc/42/9908.md?p=c-2) or contributes to the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22). - (4) **Safe harbor—** A [fiduciary](#n-5-A) shall not be [liable](/usc/42/9601.md?p=32) in its personal capacity under this chapter for— - (A) undertaking or directing another [person](/usc/42/9601.md?p=21) to undertake a [response](/usc/42/9601.md?p=25) action under [subsection (d)(1)](#d-1) or under the direction of an on scene coordinator designated under the [National Contingency Plan](/usc/42/9601.md?p=31); - (B) undertaking or directing another [person](/usc/42/9601.md?p=21) to undertake any other lawful means of addressing a [hazardous substance](/usc/42/1397h.md?p=c-4) in connection with the [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9); - (C) terminating the [fiduciary](#n-5-A) relationship; - (D) including in the terms of the [fiduciary](#n-5-A) [agreement](/usc/42/1320b–8.md?p=a-3-A) 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](/usc/42/4851b.md?p=12) of the [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9); - (F) providing financial or other advice or counseling to other parties to the [fiduciary](#n-5-A) relationship, including the settlor or beneficiary; - (G) restructuring, renegotiating, or otherwise altering the terms and conditions of the [fiduciary](#n-5-A) relationship; - (H) administering, as a [fiduciary](#n-5-A), a [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) that was contaminated before the [fiduciary](#n-5-A) relationship began; or - (I) declining to take any of the actions described in [subparagraphs (B) through (H)](#n-4-B..n-4-H). - (5) **Definitions—** As used in this chapter: - (A) **Fiduciary—** The term “fiduciary”— - (i) means a [person](/usc/42/9601.md?p=21) acting for the benefit of another party as a bona fide— - (I) trustee; - (II) executor; - (III) [administrator](/usc/42/9601.md?p=2); - (IV) custodian; - (V) guardian of estates or guardian ad litem; - (VI) receiver; - (VII) conservator; - (VIII) committee of estates of incapacitated [persons](/usc/42/9601.md?p=21); - (IX) personal [representative](/usc/42/3058f.md?p=5); - (X) trustee (including a successor to a trustee) under an indenture [agreement](/usc/42/1320b–8.md?p=a-3-A), [trust](/usc/42/12854.md?p=6) [agreement](/usc/42/1320b–8.md?p=a-3-A), lease, or similar financing [agreement](/usc/42/1320b–8.md?p=a-3-A), 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](/usc/42/9601.md?p=20-H-iv); or - (XI) [representative](/usc/42/3058f.md?p=5) in any other capacity that the [Administrator](/usc/42/9601.md?p=2), after providing public notice, determines to be similar to the capacities described in [subclauses (I) through (X)](#n-5-A-i-I..n-5-A-i-X); and - (ii) does not include— - (I) a [person](/usc/42/9601.md?p=21) that is acting as a [fiduciary](#n-5-A) with respect to a [trust](/usc/42/12854.md?p=6) or other [fiduciary](#n-5-A) estate that was organized for the primary purpose of, or is engaged in, actively carrying on a [trade or business](/usc/42/403.md?p=k) for profit, unless the [trust](/usc/42/12854.md?p=6) or other [fiduciary](#n-5-A) estate was created as part of, or to facilitate, 1 or more estate plans or because of the incapacity of a natural [person](/usc/42/9601.md?p=21); or - (II) a [person](/usc/42/9601.md?p=21) that acquires ownership or control of a [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) with the objective purpose of avoiding [liability](/usc/42/9601.md?p=32) of the [person](/usc/42/9601.md?p=21) or of any other [person](/usc/42/9601.md?p=21). - (B) **Fiduciary capacity—** The term “fiduciary capacity” means the capacity of a [person](/usc/42/9601.md?p=21) in holding title to a [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9), or otherwise having control of or an interest in the [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9), pursuant to the exercise of the responsibilities of the [person](/usc/42/9601.md?p=21) as a [fiduciary](#n-5-A). - (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](/usc/42/9601.md?p=21) subject to this subsection; or - (B) creates any [liability](/usc/42/9601.md?p=32) for a [person](/usc/42/9601.md?p=21) or a private right of action against a [fiduciary](#n-5-A) or any other [person](/usc/42/9601.md?p=21). - (7) **No effect on certain persons—** Nothing in this subsection applies to a [person](/usc/42/9601.md?p=21) if the [person](/usc/42/9601.md?p=21)— - (A) - (i) acts in a capacity other than that of a [fiduciary](#n-5-A) or in a beneficiary capacity; and - (ii) in that capacity, directly or indirectly benefits from a [trust](/usc/42/12854.md?p=6) or [fiduciary](#n-5-A) relationship; or - (B) - (i) is a beneficiary and a [fiduciary](#n-5-A) with respect to the same [fiduciary](#n-5-A) estate; and - (ii) as a [fiduciary](#n-5-A), 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](/usc/42/9601.md?p=4) under this chapter against— - (A) the assets of the estate or [trust](/usc/42/12854.md?p=6) administered by the [fiduciary](#n-5-A); or - (B) a nonemployee agent or independent contractor retained by a [fiduciary](#n-5-A). - (o) **De micromis exemption—** - (1) **In general—** Except as provided in [paragraph (2)](#o-2), a [person](/usc/42/9601.md?p=21) shall not be [liable](/usc/42/9601.md?p=32), with respect to [response](/usc/42/9601.md?p=25) costs at a [facility](/usc/42/9601.md?p=9) on the National Priorities List, under this chapter if [liability](/usc/42/9601.md?p=32) is based solely on paragraph [(3)](#a-3) or [(4)](#a-4) of subsection (a), and the [person](/usc/42/9601.md?p=21), except as provided in paragraph (4) of this subsection, can demonstrate that— - (A) the total amount of the material containing [hazardous substances](/usc/42/1397h.md?p=c-4) that the [person](/usc/42/9601.md?p=21) arranged for [disposal](/usc/42/9601.md?p=29) or [treatment](/usc/42/9601.md?p=29) of, arranged with a transporter for [transport](/usc/42/9601.md?p=26) for [disposal](/usc/42/9601.md?p=29) or [treatment](/usc/42/9601.md?p=29) of, or accepted for [transport](/usc/42/9601.md?p=26) for [disposal](/usc/42/9601.md?p=29) or [treatment](/usc/42/9601.md?p=29), at the [facility](/usc/42/9601.md?p=9) 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](/usc/42/9601.md?p=2) may determine by regulation); and - (B) all or part of the [disposal](/usc/42/9601.md?p=29), [treatment](/usc/42/9601.md?p=29), or [transport](/usc/42/9601.md?p=26) concerned occurred before April 1, 2001. - (2) **Exceptions—** [Paragraph (1)](#o-1) shall not apply in a case in which— - (A) the President determines that— - (i) the materials containing [hazardous substances](/usc/42/1397h.md?p=c-4) referred to in [paragraph (1)](#o-1) have contributed significantly or could contribute significantly, either individually or in the aggregate, to the cost of the [response](/usc/42/9601.md?p=25) action or natural resource restoration with respect to the [facility](/usc/42/9601.md?p=9); or - (ii) the [person](/usc/42/9601.md?p=21) 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](/usc/42/9601.md?p=25) action or natural resource restoration with respect to the [facility](/usc/42/9601.md?p=9); or - (B) a [person](/usc/42/9601.md?p=21) has been convicted of a criminal [violation](/usc/42/2000e–16a.md?p=c) 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)](#o-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](/usc/42/9601.md?p=25) costs at a [facility](/usc/42/9601.md?p=9) on the National Priorities List, brought by a party, other than a Federal, [State](/usc/42/9601.md?p=27), or [local government](/usc/42/8401a.md), 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](/usc/42/9601.md?p=21) shall not be [liable](/usc/42/9601.md?p=32), with respect to [response](/usc/42/9601.md?p=25) costs at a [facility](/usc/42/9601.md?p=9) on the National Priorities List, under [paragraph (3)](#a-3) of subsection (a) for [municipal solid waste](#p-4-A) disposed of at a [facility](/usc/42/9601.md?p=9) if the [person](/usc/42/9601.md?p=21), except as provided in paragraph (5) of this subsection, can demonstrate that the [person](/usc/42/9601.md?p=21) is— - (A) an [owner](/usc/42/13641.md?p=4), operator, or lessee of [residential property](/usc/42/2304.md?p=m) from which all of the [person](/usc/42/9601.md?p=21)’s [municipal solid waste](#p-4-A) was generated with respect to the [facility](/usc/42/9601.md?p=9); - (B) a business entity (including a [parent](/usc/42/1396a.md?p=k-3), subsidiary, or [affiliate](#p-1) of the entity) that, during its 3 taxable years preceding the date of transmittal of written notification from the President of its potential [liability](/usc/42/9601.md?p=32) 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](/usc/15/631.md) et seq.)) from which was generated all of the [municipal solid waste](#p-4-A) attributable to the entity with respect to the [facility](/usc/42/9601.md?p=9); or - (C) an organization described in [section 501(c)(3) of title 26](/usc/26/501.md?p=c-3) and exempt from tax under [section 501(a)](/usc/42/501.md) of such title that, during its taxable year preceding the date of transmittal of written notification from the President of its potential [liability](/usc/42/9601.md?p=32) under this section, employed not more than 100 paid individuals at the location from which was generated all of the [municipal solid waste](#p-4-A) attributable to the organization with respect to the [facility](/usc/42/9601.md?p=9). 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](/usc/15/631.md) et seq.). - (2) **Exception—** [Paragraph (1)](#p-1) shall not apply in a case in which the President determines that— - (A) the [municipal solid waste](#p-4-A) referred to in [paragraph (1)](#p-1) has contributed significantly or could contribute significantly, either individually or in the aggregate, to the cost of the [response](/usc/42/9601.md?p=25) action or natural resource restoration with respect to the [facility](/usc/42/9601.md?p=9); - (B) the [person](/usc/42/9601.md?p=21) has failed to comply with an information request or administrative subpoena issued by the President under this chapter; or - (C) the [person](/usc/42/9601.md?p=21) has impeded or is impeding, through action or inaction, the performance of a [response](/usc/42/9601.md?p=25) action or natural resource restoration with respect to the [facility](/usc/42/9601.md?p=9). - (3) **No judicial review—** A determination by the President under [paragraph (2)](#p-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](/usc/42/2304.md?p=m) 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](#p-4-A) as part of normal [municipal solid waste](#p-4-A) collection services; and - (III) contains a relative quantity of [hazardous substances](/usc/42/1397h.md?p=c-4) no greater than the relative quantity of [hazardous substances](/usc/42/1397h.md?p=c-4) contained in waste material generated by a typical [single](/usc/42/2304.md?p=m)-[family](/usc/42/290ff–4.md?p=d-2) household. - (B) **Examples—** Examples of [municipal solid waste](#p-4-A) under [subparagraph (A)](#p-4-A) include food and yard waste, paper, clothing, appliances, [consumer product](/usc/42/6311.md?p=7) packaging, disposable diapers, [office](/usc/42/3058f.md?p=1) supplies, cosmetics, glass and metal food containers, elementary or secondary [school](/usc/42/6372.md?p=1) science [laboratory](/usc/42/300jj.md?p=10) waste, and household [hazardous waste](/usc/42/9601.md?p=29). - (C) **Exclusions—** The term “[municipal solid waste](#p-4-A)” does not include— - (i) combustion ash generated by resource recovery [facilities](/usc/42/9601.md?p=9) 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](/usc/42/9601.md?p=25) costs at a [facility](/usc/42/9601.md?p=9) on the National Priorities List, brought under this section or [section 9613 of this title](/usc/42/9613.md) by— - (A) a party, other than a Federal, [State](/usc/42/9601.md?p=27), or [local government](/usc/42/8401a.md), with respect to [municipal solid waste](#p-4-A) disposed of on or after April 1, 2001; or - (B) any party with respect to [municipal solid waste](#p-4-A) 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)](#p-1) and [(4)](#p-4) for exemption for entities and organizations described in paragraph [(1)(B)](#p-1-B) and [(C)](#p-1-C) are not met. - (6) **Certain actions not permitted—** No contribution action may be brought by a party, other than a Federal, [State](/usc/42/9601.md?p=27), or [local government](/usc/42/8401a.md), under this chapter with respect to circumstances described in [paragraph (1)(A)](#p-1-A). - (7) **Costs and fees—** A nongovernmental entity that commences, after January 11, 2002, a contribution action under this chapter shall be [liable](/usc/42/9601.md?p=32) to the defendant for all reasonable costs of defending the action, including all reasonable attorney’s fees and expert witness fees, if the defendant is not [liable](/usc/42/9601.md?p=32) for contribution based on an exemption under this subsection or [subsection (o)](#o). - (q) **Contiguous properties—** - (1) **Not considered to be an owner or operator—** - (A) **In general—** A [person](/usc/42/9601.md?p=21) 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](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) from, real property that is not owned by that [person](/usc/42/9601.md?p=21) shall not be considered to be an [owner or operator](/usc/42/9601.md?p=20-A) of a [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) under paragraph [(1)](#a-1) or [(2)](#a-2) of subsection (a) solely by reason of the contamination if— - (i) the [person](/usc/42/9601.md?p=21) did not [cause](/usc/42/9908.md?p=c-2), contribute, or consent to the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22); - (ii) the [person](/usc/42/9601.md?p=21) is not— - (I) potentially [liable](/usc/42/9601.md?p=32), or affiliated with any other [person](/usc/42/9601.md?p=21) that is potentially [liable](/usc/42/9601.md?p=32), for [response](/usc/42/9601.md?p=25) costs at a [facility](/usc/42/9601.md?p=9) 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](/usc/42/9601.md?p=32); - (iii) the [person](/usc/42/9601.md?p=21) takes reasonable steps to— - (I) stop any continuing [release](/usc/42/9601.md?p=22); - (II) prevent any threatened future [release](/usc/42/9601.md?p=22); and - (III) prevent or limit human, environmental, or natural resource exposure to any [hazardous substance](/usc/42/1397h.md?p=c-4) released on or from property owned by that [person](/usc/42/9601.md?p=21); - (iv) the [person](/usc/42/9601.md?p=21) provides full cooperation, assistance, and access to [persons](/usc/42/9601.md?p=21) that are authorized to conduct [response](/usc/42/9601.md?p=25) actions or natural resource restoration at the [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) from which there has been a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial [response](/usc/42/9601.md?p=25) action or natural resource restoration at the [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9)); - (v) the [person](/usc/42/9601.md?p=21)— - (I) is in compliance with any land use restrictions established or relied on in connection with the [response](/usc/42/9601.md?p=25) action at the [facility](/usc/42/9601.md?p=9); and - (II) does not impede the effectiveness or integrity of any institutional control employed in connection with a [response](/usc/42/9601.md?p=25) action; - (vi) the [person](/usc/42/9601.md?p=21) is in compliance with any request for information or administrative subpoena issued by the President under this chapter; - (vii) the [person](/usc/42/9601.md?p=21) provides all legally required notices with respect to the discovery or [release](/usc/42/9601.md?p=22) of any [hazardous substances](/usc/42/1397h.md?p=c-4) at the [facility](/usc/42/9601.md?p=9); and - (viii) at the time at which the [person](/usc/42/9601.md?p=21) acquired the property, the [person](/usc/42/9601.md?p=21)— - (I) conducted all appropriate inquiry within the meaning of [section 9601(35)(B) of this title](/usc/42/9601.md?p=35-B) 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](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of one or more [hazardous substances](/usc/42/1397h.md?p=c-4) from other real property not owned or operated by the [person](/usc/42/9601.md?p=21). - (B) **Demonstration—** To qualify as a [person](/usc/42/9601.md?p=21) described in [subparagraph (A)](#q-1-A), a [person](/usc/42/9601.md?p=21) must establish by a preponderance of the evidence that the conditions in [clauses (i) through (viii)](#q-1-A-i..q-1-A-viii) of subparagraph (A) have been met. - (C) **Bona fide prospective purchaser—** Any [person](/usc/42/9601.md?p=21) that does not qualify as a [person](/usc/42/9601.md?p=21) described in this paragraph because the [person](/usc/42/9601.md?p=21) had, or had reason to have, knowledge specified in [subparagraph (A)(viii)](#q-1-A-viii) at the time of acquisition of the real property may qualify as a [bona fide prospective purchaser](/usc/42/9601.md?p=40-A) under [section 9601(40) of this title](/usc/42/9601.md?p=40) if the [person](/usc/42/9601.md?p=21) is otherwise described in that section. - (D) **Ground water—** With respect to a [hazardous substance](/usc/42/1397h.md?p=c-4) from one or more sources that are not on the property of a [person](/usc/42/9601.md?p=21) that is a contiguous property [owner](/usc/42/13641.md?p=4) that enters [ground water](/usc/42/9601.md?p=12) beneath the property of the [person](/usc/42/9601.md?p=21) solely as a result of subsurface migration in an aquifer, [subparagraph (A)(iii)](#q-1-A-iii) shall not require the [person](/usc/42/9601.md?p=21) to conduct [ground water](/usc/42/9601.md?p=12) investigations or to install [ground water](/usc/42/9601.md?p=12) remediation systems, except in accordance with the policy of the Environmental Protection Agency concerning [owners](/usc/42/13641.md?p=4) of property containing contaminated aquifers, dated May 24, 1995. - (2) **Effect of law—** With respect to a [person](/usc/42/9601.md?p=21) described in this subsection, nothing in this subsection— - (A) limits any defense to [liability](/usc/42/9601.md?p=32) that may be available to the [person](/usc/42/9601.md?p=21) under any other provision of law; or - (B) imposes [liability](/usc/42/9601.md?p=32) on the [person](/usc/42/9601.md?p=21) that is not otherwise imposed by [subsection (a)](#a). - (3) **Assurances—** The [Administrator](/usc/42/9601.md?p=2) may— - (A) issue an assurance that no [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) under this chapter will be initiated against a [person](/usc/42/9601.md?p=21) described in [paragraph (1)](#q-1); and - (B) grant a [person](/usc/42/9601.md?p=21) described in [paragraph (1)](#q-1) protection against a cost recovery or contribution action under [section 9613(f) of this title](/usc/42/9613.md?p=f). - (r) **Prospective purchaser and windfall lien—** - (1) **Limitation on liability—** Notwithstanding [subsection (a)(1)](#a-1), a [bona fide prospective purchaser](/usc/42/9601.md?p=40-A) whose potential [liability](/usc/42/9601.md?p=32) for a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) is based solely on the [bona fide prospective purchaser](/usc/42/9601.md?p=40-A) being considered to be an [owner or operator](/usc/42/9601.md?p=20-A) of a [facility](/usc/42/9601.md?p=9) shall not be [liable](/usc/42/9601.md?p=32) as long as the [bona fide prospective purchaser](/usc/42/9601.md?p=40-A) does not impede the performance of a [response](/usc/42/9601.md?p=25) action or natural resource restoration. - (2) **Lien—** If there are unrecovered [response](/usc/42/9601.md?p=25) costs incurred by the [United States](/usc/42/9601.md?p=27) at a [facility](/usc/42/9601.md?p=9) for which an [owner](/usc/42/13641.md?p=4) of the [facility](/usc/42/9601.md?p=9) is not [liable](/usc/42/9601.md?p=32) by reason of [paragraph (1)](#r-1), and if each of the conditions described in [paragraph (3)](#r-3) is met, the [United States](/usc/42/9601.md?p=27) shall have a lien on the [facility](/usc/42/9601.md?p=9), or may by [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [owner](/usc/42/13641.md?p=4), obtain from the [owner](/usc/42/13641.md?p=4) a lien on any other property or other assurance of payment satisfactory to the [Administrator](/usc/42/9601.md?p=2), for the unrecovered [response](/usc/42/9601.md?p=25) costs. - (3) **Conditions—** The conditions referred to in [paragraph (2)](#r-2) are the following: - (A) **Response action—** A [response](/usc/42/9601.md?p=25) action for which there are unrecovered costs of the [United States](/usc/42/9601.md?p=27) is carried out at the [facility](/usc/42/9601.md?p=9). - (B) **Fair market value—** The [response](/usc/42/9601.md?p=25) action increases the fair market value of the [facility](/usc/42/9601.md?p=9) above the fair market value of the [facility](/usc/42/9601.md?p=9) that existed before the [response](/usc/42/9601.md?p=25) action was initiated. - (4) **Amount; duration—** A lien under [paragraph (2)](#r-2)— - (A) shall be in an amount not to exceed the increase in fair market value of the property attributable to the [response](/usc/42/9601.md?p=25) 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](/usc/42/9601.md?p=27) with respect to a [response](/usc/42/9601.md?p=25) action at the [facility](/usc/42/9601.md?p=9); - (C) shall be subject to the requirements of [subsection (l)(3)](#l-3); 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](/usc/42/9613.md), recovery of all [response](/usc/42/9601.md?p=25) costs incurred at the [facility](/usc/42/9601.md?p=9). # §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](/usc/42/9601.md?p=20-A) of each [vessel](/usc/42/9601.md?p=28) (except a nonself-propelled barge that does not carry [hazardous substances](/usc/42/1397h.md?p=c-4) as cargo) over three hundred gross tons that uses any port or place in the [United States](/usc/42/9601.md?p=27) or the [navigable waters](/usc/42/9601.md?p=15) or any [offshore facility](/usc/42/9601.md?p=17), 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](/usc/42/9601.md?p=28) carrying [hazardous substances](/usc/42/1397h.md?p=c-4) as cargo, or $5,000,000, whichever is greater) to cover the [liability](/usc/42/9601.md?p=32) prescribed under paragraph (1) of [section 9607(a) of this title](/usc/42/9607.md?p=a). 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](/usc/42/9601.md?p=27). In cases where an [owner or operator](/usc/42/9601.md?p=20-A) owns, operates, or charters more than one [vessel](/usc/42/9601.md?p=28) subject to this subsection, evidence of financial responsibility need be established only to meet the maximum [liability](/usc/42/9601.md?p=32) applicable to the largest of such [vessels](/usc/42/9601.md?p=28). - (2) The [Secretary](/usc/42/242q–4.md?p=2) of the Treasury shall withhold or revoke the clearance required by [section 60105 of title 46](/usc/46/60105.md) of any [vessel](/usc/42/9601.md?p=28) 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](/usc/42/242q–4.md?p=2) of [Transportation](/usc/42/9601.md?p=26), in accordance with regulations issued by him, shall (A) deny entry to any port or place in the [United States](/usc/42/9601.md?p=27) or [navigable waters](/usc/42/9601.md?p=15) to, and (B) detain at the port or place in the [United States](/usc/42/9601.md?p=27) from which it is about to depart for any other port or place in the [United States](/usc/42/9601.md?p=27), any [vessel](/usc/42/9601.md?p=28) 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](/usc/42/9601.md?p=38) in such amounts, and to cover such [liabilities](/usc/42/9601.md?p=32) recognized by law, as the President deems appropriate, taking into account the potential risks posed by incineration and [transport](/usc/42/9601.md?p=26) 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](/usc/42/9601.md?p=9) in addition to those under subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq.] and other Federal law) that classes of [facilities](/usc/42/9601.md?p=9) establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, [transportation](/usc/42/9601.md?p=26), [treatment](/usc/42/9601.md?p=29), storage, or [disposal](/usc/42/9601.md?p=29) of [hazardous substances](/usc/42/1397h.md?p=c-4). 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](/usc/42/9601.md?p=9), [owners](/usc/42/13641.md?p=4), 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](/usc/42/9601.md?p=11), commercial insurers, courts settlements and judgments, and voluntary [claims](/usc/42/9601.md?p=4) 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](/usc/42/9601.md?p=9) is owned or operated by more than one [person](/usc/42/9601.md?p=21), evidence of financial responsibility covering the [facility](/usc/42/9601.md?p=9) may be established and maintained by one of the [owners](/usc/42/13641.md?p=4) or operators, or, in consolidated form, by or on behalf of two or more [owners](/usc/42/13641.md?p=4) 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](/usc/49/31139.md). - (c) **Direct action—** - (1) **Releases from vessels—** In the case of a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) from a [vessel](/usc/42/9601.md?p=28), any [claim](/usc/42/9601.md?p=4) authorized by section [9607](/usc/42/9607.md) or [9611](/usc/42/9611.md) of this title may be asserted directly against any [guarantor](/usc/42/9601.md?p=13) providing evidence of financial responsibility for such [vessel](/usc/42/9601.md?p=28) under [subsection (a)](#a). In defending such a [claim](/usc/42/9601.md?p=4), the [guarantor](/usc/42/9601.md?p=13) may invoke all rights and defenses which would be available to the [owner or operator](/usc/42/9601.md?p=20-A) under this subchapter. The [guarantor](/usc/42/9601.md?p=13) may also invoke the defense that the incident was caused by the willful misconduct of the [owner or operator](/usc/42/9601.md?p=20-A), but the [guarantor](/usc/42/9601.md?p=13) may not invoke any other defense that the [guarantor](/usc/42/9601.md?p=13) might have been entitled to invoke in a proceeding brought by the [owner or operator](/usc/42/9601.md?p=20-A) against him. - (2) **Releases from facilities—** In the case of a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) from a [facility](/usc/42/9601.md?p=9), any [claim](/usc/42/9601.md?p=4) authorized by section [9607](/usc/42/9607.md) or [9611](/usc/42/9611.md) of this title may be asserted directly against any [guarantor](/usc/42/9601.md?p=13) providing evidence of financial responsibility for such [facility](/usc/42/9601.md?p=9) under [subsection (b)](#b), if the [person](/usc/42/9601.md?p=21) [liable](/usc/42/9601.md?p=32) under [section 9607 of this title](/usc/42/9607.md) 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](/usc/42/9601.md?p=21) [liable](/usc/42/9601.md?p=32) under [section 9607 of this title](/usc/42/9607.md) who is likely to be solvent at the time of judgment. In the case of any action pursuant to this paragraph, the [guarantor](/usc/42/9601.md?p=13) shall be entitled to invoke all rights and defenses which would have been available to the [person](/usc/42/9601.md?p=21) [liable](/usc/42/9601.md?p=32) under [section 9607 of this title](/usc/42/9607.md) if any action had been brought against such [person](/usc/42/9601.md?p=21) by the [claimant](/usc/42/9601.md?p=5) and all rights and defenses which would have been available to the [guarantor](/usc/42/9601.md?p=13) if an action had been brought against the [guarantor](/usc/42/9601.md?p=13) by such [person](/usc/42/9601.md?p=21). - (d) **Limitation of guarantor liability—** - (1) **Total liability—** The total [liability](/usc/42/9601.md?p=32) of any [guarantor](/usc/42/9601.md?p=13) 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](/usc/42/9601.md?p=13) by the [person](/usc/42/9601.md?p=21) subject to [liability](/usc/42/9601.md?p=32) under [section 9607 of this title](/usc/42/9607.md) 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](/usc/42/9601.md?p=27) or Federal statutory, contractual, or common law [liability](/usc/42/9601.md?p=32) of a [guarantor](/usc/42/9601.md?p=13), including, but not limited to, the [liability](/usc/42/9601.md?p=32) of such [guarantor](/usc/42/9601.md?p=13) for bad faith either in negotiating or in failing to negotiate the settlement of any [claim](/usc/42/9601.md?p=4). Nothing in this subsection shall be construed, interpreted, or applied to diminish the [liability](/usc/42/9601.md?p=32) of any [person](/usc/42/9601.md?p=21) under [section 9607 of this title](/usc/42/9607.md) or other applicable law. # §9609. Civil penalties and awards - (a) **Class I administrative penalty—** - (1) **Violations—** A civil penalty of not more than $25,000 per [violation](/usc/42/2000e–16a.md?p=c) may be assessed by the President in the case of any of the following— - (A) A [violation](/usc/42/2000e–16a.md?p=c) of the requirements of section [9603(a)](/usc/42/9603.md?p=a) or [(b)](/usc/42/9603.md?p=b) of this title (relating to notice). - (B) A [violation](/usc/42/2000e–16a.md?p=c) of the requirements of [section 9603(d)(2) of this title](/usc/42/9603.md?p=d-2) (relating to destruction of records, etc.). - (C) A [violation](/usc/42/2000e–16a.md?p=c) of the requirements of [section 9608 of this title](/usc/42/9608.md) (relating to financial responsibility, etc.), the regulations issued under [section 9608 of this title](/usc/42/9608.md), or with any denial or detention order under [section 9608 of this title](/usc/42/9608.md). - (D) A [violation](/usc/42/2000e–16a.md?p=c) of an order under [section 9622(d)(3) of this title](/usc/42/9622.md?p=d-3) (relating to settlement [agreements](/usc/42/1320b–8.md?p=a-3-A) for action under [section 9604(b) of this title](/usc/42/9604.md?p=b)). - (E) Any failure or refusal referred to in [section 9622(l)](/usc/42/9622.md?p=l) of this title (relating to [violations](/usc/42/2000e–16a.md?p=c) of administrative orders, consent decrees, or [agreements](/usc/42/1320b–8.md?p=a-3-A) under [section 9620 of this title](/usc/42/9620.md)). - (2) **Notice and hearings—** No civil penalty may be assessed under this subsection unless the [person](/usc/42/9601.md?p=21) accused of the [violation](/usc/42/2000e–16a.md?p=c) is given notice and opportunity for a hearing with respect to the [violation](/usc/42/2000e–16a.md?p=c). - (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](/usc/42/2000e–16a.md?p=c) or [violations](/usc/42/2000e–16a.md?p=c) and, with respect to the violator, ability to pay, any prior history of such [violations](/usc/42/2000e–16a.md?p=c), the degree of culpability, economic benefit or savings (if any) resulting from the [violation](/usc/42/2000e–16a.md?p=c), and such other matters as justice may require. - (4) **Review—** Any [person](/usc/42/9601.md?p=21) against whom a civil penalty is assessed under this subsection may obtain review thereof in the appropriate district court of the [United States](/usc/42/9601.md?p=27) 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](/usc/42/2000e–16a.md?p=c) was found or such penalty imposed. If any [person](/usc/42/9601.md?p=21) 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](/usc/42/9601.md?p=27), the President may request the [Attorney General](/usc/42/14902.md?p=6) of the [United States](/usc/42/9601.md?p=27) to institute a civil action in an appropriate district court of the [United States](/usc/42/9601.md?p=27) 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](/usc/42/2000e–16a.md?p=c) 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](/usc/42/9601.md?p=21), the district court of the [United States](/usc/42/9601.md?p=27) for any district in which such [person](/usc/42/9601.md?p=21) is found, resides, or transacts business, upon application by the [United States](/usc/42/9601.md?p=27) and after notice to such [person](/usc/42/9601.md?p=21), shall have jurisdiction to issue an order requiring such [person](/usc/42/9601.md?p=21) 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](/usc/42/2000e–16a.md?p=c) continues may be assessed by the President in the case of any of the following— - (1) A [violation](/usc/42/2000e–16a.md?p=c) of the notice requirements of section [9603(a)](/usc/42/9603.md?p=a) or [(b)](/usc/42/9603.md?p=b) of this title. - (2) A [violation](/usc/42/2000e–16a.md?p=c) of [section 9603(d)(2) of this title](/usc/42/9603.md?p=d-2) (relating to destruction of records, etc.). - (3) A [violation](/usc/42/2000e–16a.md?p=c) of the requirements of [section 9608 of this title](/usc/42/9608.md) (relating to financial responsibility, etc.), the regulations issued under [section 9608 of this title](/usc/42/9608.md), or with any denial or detention order under [section 9608 of this title](/usc/42/9608.md). - (4) A [violation](/usc/42/2000e–16a.md?p=c) of an order under [section 9622(d)(3) of this title](/usc/42/9622.md?p=d-3) (relating to settlement [agreements](/usc/42/1320b–8.md?p=a-3-A) for action under [section 9604(b) of this title](/usc/42/9604.md?p=b)). - (5) Any failure or refusal referred to in [section 9622(l)](/usc/42/9622.md?p=l) of this title (relating to [violations](/usc/42/2000e–16a.md?p=c) of administrative orders, consent decrees, or [agreements](/usc/42/1320b–8.md?p=a-3-A) under [section 9620 of this title](/usc/42/9620.md)). In the case of a second or subsequent [violation](/usc/42/2000e–16a.md?p=c) the amount of such penalty may be not more than $75,000 for each day during which the [violation](/usc/42/2000e–16a.md?p=c) 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](/usc/5/554.md). 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](/usc/42/9601.md?p=21) 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](/usc/42/9601.md?p=27) Court of Appeals for the District of Columbia Circuit or for any other circuit in which such [person](/usc/42/9601.md?p=21) 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](/usc/42/9601.md?p=27) 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](/usc/42/2000e–16a.md?p=c) (or failure or refusal) continues in the case of any of the following— - (1) A [violation](/usc/42/2000e–16a.md?p=c) of the notice requirements of section [9603(a)](/usc/42/9603.md?p=a) or [(b)](/usc/42/9603.md?p=b) of this title. - (2) A [violation](/usc/42/2000e–16a.md?p=c) of [section 9603(d)(2) of this title](/usc/42/9603.md?p=d-2) (relating to destruction of records, etc.). - (3) A [violation](/usc/42/2000e–16a.md?p=c) of the requirements of [section 9608 of this title](/usc/42/9608.md) (relating to financial responsibility, etc.), the regulations issued under [section 9608 of this title](/usc/42/9608.md), or with any denial or detention order under [section 9608 of this title](/usc/42/9608.md). - (4) A [violation](/usc/42/2000e–16a.md?p=c) of an order under [section 9622(d)(3) of this title](/usc/42/9622.md?p=d-3) (relating to settlement [agreements](/usc/42/1320b–8.md?p=a-3-A) for action under [section 9604(b) of this title](/usc/42/9604.md?p=b)). - (5) Any failure or refusal referred to in [section 9622(l)](/usc/42/9622.md?p=l) of this title (relating to [violations](/usc/42/2000e–16a.md?p=c) of administrative orders, consent decrees, or [agreements](/usc/42/1320b–8.md?p=a-3-A) under [section 9620 of this title](/usc/42/9620.md)). In the case of a second or subsequent [violation](/usc/42/2000e–16a.md?p=c) (or failure or refusal), the amount of such penalty may be not more than $75,000 for each day during which the [violation](/usc/42/2000e–16a.md?p=c) (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](/usc/42/9604.md?p=e) (relating to information gathering and access authorities), see [section 9604(e) of this title](/usc/42/9604.md?p=e). - (d) **Awards—** The President may pay an award of up to $10,000 to any individual who provides information leading to the arrest and conviction of any [person](/usc/42/9601.md?p=21) for a [violation](/usc/42/2000e–16a.md?p=c) subject to a criminal penalty under this chapter, including any [violation](/usc/42/2000e–16a.md?p=c) of [section 9603 of this title](/usc/42/9603.md) and any other [violation](/usc/42/2000e–16a.md?p=c) 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](/usc/42/9601.md?p=11), as provided in [section 9611 of this title](/usc/42/9611.md). - (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](/usc/42/6311.md?p=7) Business Daily or otherwise any notice of solicitation or synopsis with respect to such procurement. - (f) **Savings clause—** Action taken by the President pursuant to this section shall not affect or limit the President’s authority to enforce any provisions of this chapter. # §9610. Employee protection - (a) **Activities of employee subject to protection—** No [person](/usc/42/9601.md?p=21) shall fire or in any other way discriminate against, or [cause](/usc/42/9908.md?p=c-2) to be fired or discriminated against, any [employee](/usc/42/1320a–7h.md?p=e-7) or any authorized [representative](/usc/42/3058f.md?p=5) of [employees](/usc/42/1320a–7h.md?p=e-7) by reason of the fact that such [employee](/usc/42/1320a–7h.md?p=e-7) or [representative](/usc/42/3058f.md?p=5) has provided information to a [State](/usc/42/9601.md?p=27) 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](/usc/42/1320a–7h.md?p=e-7) or a [representative](/usc/42/3058f.md?p=5) of [employees](/usc/42/1320a–7h.md?p=e-7) who believes that he has been fired or otherwise discriminated against by any [person](/usc/42/9601.md?p=21) in [violation](/usc/42/2000e–16a.md?p=c) of [subsection (a)](#a) of this section may, within thirty days after such alleged [violation](/usc/42/2000e–16a.md?p=c) occurs, apply to the [Secretary](/usc/42/242q–4.md?p=2) of Labor for a review of such firing or alleged discrimination. A copy of the application shall be sent to such [person](/usc/42/9601.md?p=21), who shall be the [respondent](/usc/42/2000e.md?p=n). Upon receipt of such application, the [Secretary](/usc/42/242q–4.md?p=2) of Labor shall [cause](/usc/42/9908.md?p=c-2) 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](/usc/42/2000e–16a.md?p=c). 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](/usc/5/554.md). Upon receiving the report of such investigation, the [Secretary](/usc/42/242q–4.md?p=2) of Labor shall make findings of fact. If he finds that such [violation](/usc/42/2000e–16a.md?p=c) did occur, he shall issue a decision, incorporating an order therein and his findings, requiring the party committing such [violation](/usc/42/2000e–16a.md?p=c) to take such affirmative action to abate the [violation](/usc/42/2000e–16a.md?p=c) as the [Secretary](/usc/42/242q–4.md?p=2) of Labor deems appropriate, including, but not limited to, the rehiring or reinstatement of the [employee](/usc/42/1320a–7h.md?p=e-7) or [representative](/usc/42/3058f.md?p=5) of [employees](/usc/42/1320a–7h.md?p=e-7) to his former position with compensation. If he finds that there was no such [violation](/usc/42/2000e–16a.md?p=c), he shall issue an order denying the application. Such order issued by the [Secretary](/usc/42/242q–4.md?p=2) 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](/usc/42/2000e–16a.md?p=c), at the request of the applicant a sum equal to the aggregate amount of all costs and expenses (including the attorney’s fees) determined by the [Secretary](/usc/42/242q–4.md?p=2) 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](/usc/42/9601.md?p=21) committing such [violation](/usc/42/2000e–16a.md?p=c). - (d) **Defenses—** This section shall have no application to any [employee](/usc/42/1320a–7h.md?p=e-7) 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](/usc/42/1320a–7h.md?p=e-7) who is discharged, or laid off, threatened with discharge or layoff, or otherwise discriminated against by any [person](/usc/42/9601.md?p=21) because of the alleged results of such administration or enforcement, or any [representative](/usc/42/3058f.md?p=5) of such [employee](/usc/42/1320a–7h.md?p=e-7), 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](/usc/5/554.md). 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](/usc/42/9601.md?p=27) to modify or withdraw any action, [standard](/usc/42/1320d.md?p=7), limitation, or any other requirement of this chapter. # §9611. Uses of Fund - (a) **In general—** For the purposes specified in this section there is authorized to be appropriated from the [Hazardous Substance](/usc/42/1397h.md?p=c-4) Superfund established under subchapter A of [chapter 98](/usc/26/chstI-ch98.md) of title 26 not more than $8,500,000,000 for the 5-year period beginning on October 17, 1986, and not more than $5,100,000,000 for the period commencing October 1, 1991, and ending September 30, 1994, and such sums shall remain available until expended. The preceding sentence constitutes a specific [authorization](/usc/42/4370m.md?p=3) for the [funds](/usc/42/9601.md?p=11) appropriated under title II of Public Law 99-160 (relating to payment to the [Hazardous Substances](/usc/42/1397h.md?p=c-4) [Trust Fund](/usc/42/9601.md?p=11)). The President shall use the money in the [Fund](/usc/42/9601.md?p=11) for the following purposes: - (1) Payment of governmental [response](/usc/42/9601.md?p=25) costs incurred pursuant to [section 9604 of this title](/usc/42/9604.md), including costs incurred pursuant to the Intervention on the High Seas Act [[33 U.S.C. 1471](/usc/33/1471.md) et seq.]. - (2) Payment of any [claim](/usc/42/9601.md?p=4) for necessary [response](/usc/42/9601.md?p=25) costs incurred by any other [person](/usc/42/9601.md?p=21) as a result of carrying out the [national contingency plan](/usc/42/9601.md?p=31) established under [section 1321(c)](/usc/42/1321.md)[^1] of [title 33](/usc/33.md) and amended by [section 9605 of this title](/usc/42/9605.md): Provided, however, That such costs must be approved under said plan and certified by the responsible Federal official. - (3) Payment of any [claim](/usc/42/9601.md?p=4) authorized by [subsection (b)](#b) of this section and finally decided pursuant to [section 9612 of this title](/usc/42/9612.md), including those costs set out in sub[section 9612(c)(3) of this title](/usc/42/9612.md?p=c-3). - (4) Payment of costs specified under [subsection (c)](#c) of this section. - (5) **Grants for technical assistance.—** The cost of grants under [section 9617(e) of this title](/usc/42/9617.md?p=e) (relating to public participation grants for technical assistance). - (6) **Lead contaminated soil.—** Payment of not to exceed $15,000,000 for the costs of a pilot [program](/usc/42/274l–1.md?p=4) for [removal](/usc/42/9601.md?p=25), decontamination, or other action with respect to lead-contaminated soil in one to three different metropolitan areas. The President shall not pay for any administrative costs or expenses out of the [Fund](/usc/42/9601.md?p=11) unless such costs and expenses are reasonably necessary for and incidental to the implementation of this subchapter. - (b) **Additional authorized purposes—** - (1) **In general—** [Claims](/usc/42/9601.md?p=4) asserted and compensable but un­satisfied under provisions of [section 1321 of title 33](/usc/33/1321.md), which are [modified](/usc/42/7501.md?p=4) by [section 304](/usc/42/304.md) of this Act may be asserted against the [Fund](/usc/42/9601.md?p=11) under this subchapter; and other [claims](/usc/42/9601.md?p=4) resulting from a [release](/usc/42/9601.md?p=22) or threat of [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) from a [vessel](/usc/42/9601.md?p=28) or a [facility](/usc/42/9601.md?p=9) may be asserted against the [Fund](/usc/42/9601.md?p=11) under this subchapter for injury to, or destruction or loss of, [natural resources](/usc/42/9601.md?p=16), including cost for damage assessment: Provided, however, That any such [claim](/usc/42/9601.md?p=4) may be asserted only by the President, as trustee, for [natural resources](/usc/42/9601.md?p=16) over which the [United States](/usc/42/9601.md?p=27) has sovereign rights, or [natural resources](/usc/42/9601.md?p=16) within the territory or the fishery conservation zone of the [United States](/usc/42/9601.md?p=27) to the extent they are managed or protected by the [United States](/usc/42/9601.md?p=27), or by any [State](/usc/42/9601.md?p=27) for [natural resources](/usc/42/9601.md?p=16) within the boundary of that [State](/usc/42/9601.md?p=27) belonging to, managed by, controlled by, or appertaining to the [State](/usc/42/9601.md?p=27), or by any [Indian tribe](/usc/42/9601.md?p=36) or by the [United States](/usc/42/9601.md?p=27) acting on behalf of any [Indian tribe](/usc/42/9601.md?p=36) for [natural resources](/usc/42/9601.md?p=16) belonging to, managed by, controlled by, or appertaining to such tribe, or held in [trust](/usc/42/12854.md?p=6) for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a [trust](/usc/42/12854.md?p=6) restriction on alienation. - (2) **Limitation on payment of natural resource claims—** - (A) **General requirements—** No [natural resource claim](#b-2-B) may be paid from the [Fund](/usc/42/9601.md?p=11) unless the President determines that the [claimant](/usc/42/9601.md?p=5) has exhausted all administrative and judicial [remedies](/usc/42/9601.md?p=24) to recover the amount of such [claim](/usc/42/9601.md?p=4) from [persons](/usc/42/9601.md?p=21) who may be [liable](/usc/42/9601.md?p=32) under [section 9607 of this title](/usc/42/9607.md). - (B) **Definition—** As used in this paragraph, the term “natural resource claim” means any [claim](/usc/42/9601.md?p=4) for injury to, or destruction or loss of, [natural resources](/usc/42/9601.md?p=16). The term does not include any [claim](/usc/42/9601.md?p=4) for the costs of natural resource damage assessment. - (c) **Peripheral matters and limitations—** Uses of the [Fund](/usc/42/9601.md?p=11) under [subsection (a)](#a) of this section include— - (1) The costs of assessing both short-term and long-term injury to, destruction of, or loss of any [natural resources](/usc/42/9601.md?p=16) resulting from a [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4). - (2) The costs of Federal or [State](/usc/42/9601.md?p=27) or [Indian tribe](/usc/42/9601.md?p=36) efforts in the restoration, rehabilitation, or replacement or acquiring the equivalent of any [natural resources](/usc/42/9601.md?p=16) injured, destroyed, or lost as a result of a [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4). - (3) Subject to such amounts as are provided in appropriation Acts, the costs of a [program](/usc/42/274l–1.md?p=4) to identify, investigate, and take enforcement and abatement action against [releases](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4). - (4) Any costs incurred in accordance with [subsection (m)](#m) of this section (relating to ATSDR) and [section 9604(i) of this title](/usc/42/9604.md?p=i), including the costs of epidemiologic and [laboratory](/usc/42/300jj.md?p=10) studies, health assessments, preparation of toxicologic profiles, development and maintenance of a [registry](/usc/42/6341.md?p=6) of [persons](/usc/42/9601.md?p=21) exposed to [hazardous substances](/usc/42/1397h.md?p=c-4) to allow long-term health effect studies, and diagnostic services not otherwise available to determine whether [persons](/usc/42/9601.md?p=21) in populations exposed to [hazardous substances](/usc/42/1397h.md?p=c-4) in connection with a [release](/usc/42/9601.md?p=22) or a suspected [release](/usc/42/9601.md?p=22) are suffering from long-latency diseases. - (5) Subject to such amounts as are provided in appropriation Acts, the costs of providing equipment and similar overhead, related to the purposes of this chapter and [section 1321 of title 33](/usc/33/1321.md), and needed to supplement equipment and services available through contractors or other non-Federal entities, and of establishing and maintaining damage assessment capability, for any Federal agency involved in strike forces, emergency [task forces](/usc/42/242q–4.md?p=3), or other [response](/usc/42/9601.md?p=25) teams under the [national contingency plan](/usc/42/9601.md?p=31). - (6) Subject to such amounts as are provided in appropriation Acts, the costs of a [program](/usc/42/274l–1.md?p=4) to protect the health and safety of [employees](/usc/42/1320a–7h.md?p=e-7) involved in [response](/usc/42/9601.md?p=25) to [hazardous substance](/usc/42/1397h.md?p=c-4) [releases](/usc/42/9601.md?p=22). Such [program](/usc/42/274l–1.md?p=4) shall be developed jointly by the Environmental Protection Agency, the Occupational Safety and Health Administration, and the National Institute for Occupational Safety and Health and shall include, but not be limited to, measures for identifying and assessing [hazards](/usc/42/5165f.md?p=a-3) to which [persons](/usc/42/9601.md?p=21) engaged in [removal](/usc/42/9601.md?p=25), [remedy](/usc/42/9601.md?p=24), or other [response](/usc/42/9601.md?p=25) to [hazardous substances](/usc/42/1397h.md?p=c-4) may be exposed, methods to protect workers from such [hazards](/usc/42/5165f.md?p=a-3), and necessary regulatory and enforcement measures to assure adequate protection of such [employees](/usc/42/1320a–7h.md?p=e-7). - (7) **Evaluation costs under petition provisions of section 9605(d).—** Costs incurred by the President in evaluating [facilities](/usc/42/9601.md?p=9) pursuant to petitions under [section 9605(d) of this title](/usc/42/9605.md?p=d) (relating to petitions for assessment of [release](/usc/42/9601.md?p=22)). - (8) **Contract costs under section 9604(a)(1).—** The costs of contracts or arrangements entered into under [section 9604(a)(1) of this title](/usc/42/9604.md?p=a-1) to oversee and review the conduct of remedial investigations and feasibility studies undertaken by [persons](/usc/42/9601.md?p=21) other than the President and the costs of appropriate Federal and [State](/usc/42/9601.md?p=27) oversight of remedial activities at National Priorities List sites resulting from consent orders or settlement [agreements](/usc/42/1320b–8.md?p=a-3-A). - (9) **Acquisition costs under section 9604(j).—** The costs incurred by the President in acquiring real estate or interests in real estate under [section 9604(j) of this title](/usc/42/9604.md?p=j) (relating to acquisition of property). - (10) **Research, development, and demonstration costs under section 9660.—** The cost of carrying out [section 9660 of this title](/usc/42/9660.md) (relating to research, development, and demonstration), except that the amounts available for such purposes shall not exceed the amounts specified in [subsection (n)](#n) of this section. - (11) **Local government reimbursement.—** Reimbursements to [local governments](/usc/42/8401a.md) under [section 9623 of this title](/usc/42/9623.md), except that during the 8-fiscal year period beginning October 1, 1986, not more than 0.1 percent of the total amount appropriated from the [Fund](/usc/42/9601.md?p=11) may be used for such reimbursements. - (12) **Worker training and education grants.—** The costs of grants under [section 9660a of this title](/usc/42/9660a.md) for [training](/usc/42/285e–2.md?p=b-2) and education of workers to the extent that such costs do not exceed $20,000,000 for each of the fiscal years 1987, 1988, 1989, 1990, 1991, 1992, 1993, and 1994. - (13) **Awards under section 9609.—** The costs of any awards granted under [section 9609(d) of this title](/usc/42/9609.md?p=d). - (14) **Lead poisoning study.—** The cost of carrying out the study under subsection (f) of section 118 of the Superfund Amendments and Reauthorization Act of 1986 (relating to lead poisoning in [children](/usc/42/256e.md?p=g-2)). - (d) **Additional limitations—** - (1) No money in the [Fund](/usc/42/9601.md?p=11) may be used under subsection [(c)(1)](#c-1) and [(2)](#c-2) of this section, nor for the payment of any [claim](/usc/42/9601.md?p=4) under [subsection (b)](#b) of this section, where the injury, destruction, or loss of [natural resources](/usc/42/9601.md?p=16) and the [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) from which such [damages](/usc/42/9601.md?p=6) resulted have occurred wholly before December 11, 1980. - (2) No money in the [Fund](/usc/42/9601.md?p=11) may be used for the payment of any [claim](/usc/42/9601.md?p=4) under [subsection (b)](#b) of this section where such expenses are associated with injury or loss resulting from long-term exposure to ambient concentrations of air [pollutants](/usc/42/1397h.md?p=c-4) from multiple or diffuse sources. - (e) **Funding requirements respecting moneys in Fund; limitation on certain claims; Fund use outside Federal property boundaries—** - (1) [Claims](/usc/42/9601.md?p=4) against or presented to the [Fund](/usc/42/9601.md?p=11) shall not be valid or paid in excess of the total money in the [Fund](/usc/42/9601.md?p=11) at any one time. Such [claims](/usc/42/9601.md?p=4) become valid only when additional money is collected, appropriated, or otherwise added to the [Fund](/usc/42/9601.md?p=11). Should the total [claims](/usc/42/9601.md?p=4) outstanding at any time exceed the current balance of the [Fund](/usc/42/9601.md?p=11), the President shall pay such [claims](/usc/42/9601.md?p=4), to the extent authorized under this section, in full in the order in which they were finally determined. - (2) In any fiscal year, 85 percent of the money credited to the [Fund](/usc/42/9601.md?p=11) under subchapter II[^1] of this chapter shall be available only for the purposes specified in paragraphs [(1)](#a-1), [(2)](#a-2), and [(4)](#a-4) of subsection (a) of this section. No money in the [Fund](/usc/42/9601.md?p=11) may be used for the payment of any [claim](/usc/42/9601.md?p=4) under [subsection (a)(3)](#a-3) or [subsection (b)](#b) of this section in any fiscal year for which the President determines that all of the [Fund](/usc/42/9601.md?p=11) is needed for [response](/usc/42/9601.md?p=25) to threats to public health from [releases](/usc/42/9601.md?p=22) or threatened [releases](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4). - (3) No money in the [Fund](/usc/42/9601.md?p=11) shall be available for [remedial action](/usc/42/9601.md?p=24), other than actions specified in [subsection (c)](#c) of this section, with respect to federally owned [facilities](/usc/42/9601.md?p=9); except that money in the [Fund](/usc/42/9601.md?p=11) shall be available for the provision of [alternative water supplies](/usc/42/9601.md?p=34) (including the reimbursement of costs incurred by a municipality) in any case involving groundwater contamination outside the boundaries of a federally owned [facility](/usc/42/9601.md?p=9) in which the federally owned [facility](/usc/42/9601.md?p=9) is not the only potentially responsible party. - (4) Paragraphs [(1)](#a-1) and [(4)](#a-4) of subsection (a) of this section shall in the aggregate be subject to such amounts as are provided in appropriation Acts. - (f) **Obligation of moneys by Federal officials; obligation of moneys or settlement of claims by State officials or Indian tribe—** The President is authorized to promulgate regulations designating one or more Federal officials who may obligate money in the [Fund](/usc/42/9601.md?p=11) in accordance with this section or portions thereof. The President is also authorized to delegate authority to obligate money in the [Fund](/usc/42/9601.md?p=11) or to settle [claims](/usc/42/9601.md?p=4) to officials of a [State](/usc/42/9601.md?p=27) or [Indian tribe](/usc/42/9601.md?p=36) operating under a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) with the Federal Government pursuant to [section 9604(d) of this title](/usc/42/9604.md?p=d). - (g) **Notice to potential injured parties by owner and operator of vessel or facility causing release of substance; rules and regulations—** The President shall provide for the promulgation of rules and regulations with respect to the notice to be provided to potential injured parties by an [owner](/usc/42/13641.md?p=4) and operator of any [vessel](/usc/42/9601.md?p=28), or [facility](/usc/42/9601.md?p=9) from which a [hazardous substance](/usc/42/1397h.md?p=c-4) has been released. Such rules and regulations shall consider the scope and form of the notice which would be appropriate to carry out the purposes of this subchapter. Upon promulgation of such rules and regulations, the [owner](/usc/42/13641.md?p=4) and operator of any [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) from which a [hazardous substance](/usc/42/1397h.md?p=c-4) has been released shall provide notice in accordance with such rules and regulations. With respect to [releases](/usc/42/9601.md?p=22) from public [vessels](/usc/42/9601.md?p=28), the President shall provide such notification as is appropriate to potential injured parties. Until the promulgation of such rules and regulations, the [owner](/usc/42/13641.md?p=4) and operator of any [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) from which a [hazardous substance](/usc/42/1397h.md?p=c-4) has been released shall provide reasonable notice to potential injured parties by publication in local newspapers serving the affected area. - (h) **Repealed. Pub. L. 99–499, title I, § 111(c)(2), Oct. 17, 1986, 100 Stat. 1643—** - (i) **Restoration, etc., of natural resources—** Except in a situation requiring action to avoid an irreversible loss of [natural resources](/usc/42/9601.md?p=16) or to prevent or reduce any continuing danger to [natural resources](/usc/42/9601.md?p=16) or similar need for emergency action, [funds](/usc/42/9601.md?p=11) may not be used under this chapter for the restoration, rehabilitation, or replacement or acquisition of the equivalent of any [natural resources](/usc/42/9601.md?p=16) until a plan for the use of such [funds](/usc/42/9601.md?p=11) for such purposes has been developed and adopted by affected Federal agencies and the [Governor](/usc/42/6372.md?p=1) or [Governors](/usc/42/6372.md?p=1) of any [State](/usc/42/9601.md?p=27) having sustained damage to [natural resources](/usc/42/9601.md?p=16) within its borders, belonging to, managed by or appertaining to such [State](/usc/42/9601.md?p=27), and by the governing body of any [Indian tribe](/usc/42/9601.md?p=36) having sustained damage to [natural resources](/usc/42/9601.md?p=16) belonging to, managed by, controlled by, or appertaining to such tribe, or held in [trust](/usc/42/12854.md?p=6) for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a [trust](/usc/42/12854.md?p=6) restriction on alienation, after adequate public notice and opportunity for hearing and consideration of all public comment. - (j) **Use of Post-closure Liability Fund—** The President shall use the money in the Post-closure [Liability](/usc/42/9601.md?p=32) [Fund](/usc/42/9601.md?p=11) for any of the purposes specified in [subsection (a)](#a) of this section with respect to a [hazardous waste](/usc/42/9601.md?p=29) [disposal](/usc/42/9601.md?p=29) [facility](/usc/42/9601.md?p=9) for which [liability](/usc/42/9601.md?p=32) has transferred to such [fund](/usc/42/9601.md?p=11) under [section 9607(k) of this title](/usc/42/9607.md?p=k), and, in addition, for payment of any [claim](/usc/42/9601.md?p=4) or appropriate request for costs of [response](/usc/42/9601.md?p=25), [damages](/usc/42/9601.md?p=6), or other compensation for injury or loss under [section 9607 of this title](/usc/42/9607.md) or any other [State](/usc/42/9601.md?p=27) or Federal law, resulting from a [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) from such a [facility](/usc/42/9601.md?p=9). - (k) **Inspector General—** In each fiscal year, the Inspector General of each department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27) which is carrying out any authority of this chapter shall conduct an annual audit of all payments, obligations, reimbursements, or other uses of the [Fund](/usc/42/9601.md?p=11) in the prior fiscal year, to assure that the [Fund](/usc/42/9601.md?p=11) is being properly administered and that [claims](/usc/42/9601.md?p=4) are being appropriately and expeditiously considered. The audit shall include an examination of a sample of [agreements](/usc/42/1320b–8.md?p=a-3-A) with [States](/usc/42/9601.md?p=27) (in accordance with the provisions of the [Single](/usc/42/2304.md?p=m) Audit Act [[31 U.S.C. 7501](/usc/31/7501.md) et seq.]) carrying out [response](/usc/42/9601.md?p=25) actions under this subchapter and an examination of remedial investigations and feasibility studies prepared for [remedial actions](/usc/42/9601.md?p=24). The Inspector General shall submit to the Congress an annual report regarding the audit report required under this subsection. The report shall contain such recommendations as the Inspector General deems appropriate. Each department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27) shall cooperate with its inspector general in carrying out this subsection. - (l) **Foreign claimants—** To the extent that the provisions of this chapter permit, a foreign [claimant](/usc/42/9601.md?p=5) may assert a [claim](/usc/42/9601.md?p=4) to the same extent that a [United States](/usc/42/9601.md?p=27) [claimant](/usc/42/9601.md?p=5) may assert a [claim](/usc/42/9601.md?p=4) if— - (1) the [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) occurred (A) in the [navigable waters](/usc/42/9601.md?p=15) or (B) in or on the [territorial sea](/usc/42/9601.md?p=30) or adjacent shoreline of a foreign country of which the [claimant](/usc/42/9601.md?p=5) is a resident; - (2) the [claimant](/usc/42/9601.md?p=5) is not otherwise compensated for his loss; - (3) the [hazardous substance](/usc/42/1397h.md?p=c-4) was released from a [facility](/usc/42/9601.md?p=9) or from a [vessel](/usc/42/9601.md?p=28) located adjacent to or within the [navigable waters](/usc/42/9601.md?p=15) or was discharged in connection with activities conducted under the Outer Continental Shelf Lands Act, as amended ([43 U.S.C. 1331](/usc/43/1331.md) et seq.) or the Deepwater Port Act of 1974, as amended ([33 U.S.C. 1501](/usc/33/1501.md) et seq.); and - (4) recovery is authorized by a treaty or an executive [agreement](/usc/42/1320b–8.md?p=a-3-A) between the [United States](/usc/42/9601.md?p=27) and foreign country involved, or if the Secretary of State, in consultation with the [Attorney General](/usc/42/14902.md?p=6) and other appropriate officials, certifies that such country provides a comparable [remedy](/usc/42/9601.md?p=24) for [United States](/usc/42/9601.md?p=27) [claimants](/usc/42/9601.md?p=5). - (m) **Agency for Toxic Substances and Disease Registry—** There shall be directly available to the Agency for Toxic Substances and Disease [Registry](/usc/42/6341.md?p=6) to be used for the purpose of carrying out activities described in [subsection (c)(4)](#c-4) and [section 9604(i) of this title](/usc/42/9604.md?p=i) not less than $50,000,000 per fiscal year for each of fiscal years 1987 and 1988, not less than $55,000,000 for fiscal year 1989, and not less than $60,000,000 per fiscal year for each of fiscal years 1990, 1991, 1992, 1993, and 1994. Any [funds](/usc/42/9601.md?p=11) so made available which are not obligated by the end of the fiscal year in which made available shall be returned to the [Fund](/usc/42/9601.md?p=11). - (n) **Limitations on research, development, and demonstration program—** - (1) **Section 9660(b)—** For each of the fiscal years 1987, 1988, 1989, 1990, 1991, 1992, 1993, and 1994, not more than $20,000,000 of the amounts available in the [Fund](/usc/42/9601.md?p=11) may be used for the purposes of carrying out the applied research, development, and demonstration [program](/usc/42/274l–1.md?p=4) for alternative or innovative technologies and [training](/usc/42/285e–2.md?p=b-2) [program](/usc/42/274l–1.md?p=4) authorized under [section 9660(b) of this title](/usc/42/9660.md?p=b) (relating to research, development, and demonstration) other than basic research. Such amounts shall remain available until expended. - (2) **Section 9660(a)—** From the amounts available in the [Fund](/usc/42/9601.md?p=11), not more than the following amounts may be used for the purposes of [section 9660(a) of this title](/usc/42/9660.md?p=a) (relating to [hazardous substance](/usc/42/1397h.md?p=c-4) research, demonstration, and [training](/usc/42/285e–2.md?p=b-2) activities): - (A) For the fiscal year 1987, $3,000,000. - (B) For the fiscal year 1988, $10,000,000. - (C) For the fiscal year 1989, $20,000,000. - (D) For the fiscal year 1990, $30,000,000. - (E) For each of the fiscal years 1991, 1992, 1993, and 1994, $35,000,000. No more than 10 percent of such amounts shall be used for [training](/usc/42/285e–2.md?p=b-2) under [section 9660(a) of this title](/usc/42/9660.md?p=a) in any fiscal year. - (3) **Section 9660(d)—** For each of the fiscal years 1987, 1988, 1989, 1990, 1991, 1992, 1993, and 1994, not more than $5,000,000 of the amounts available in the [Fund](/usc/42/9601.md?p=11) may be used for the purposes of [section 9660(d) of this title](/usc/42/9660.md?p=d) (relating to university [hazardous substance](/usc/42/1397h.md?p=c-4) research centers). - (o) **Notification procedures for limitations on certain payments—** Not later than 90 days after October 17, 1986, the President shall develop and implement procedures to adequately notify, as soon as practicable after a site is included on the National Priorities List, concerned local and [State](/usc/42/9601.md?p=27) officials and other concerned [persons](/usc/42/9601.md?p=21) of the limitations, set forth in [subsection (a)(2)](#a-2) of this section, on the payment of [claims](/usc/42/9601.md?p=4) for necessary [response](/usc/42/9601.md?p=25) costs incurred with respect to such site. - (p) **General revenue share of Superfund—** - (1) **In general—** The following sums are authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, to the [Hazardous Substance](/usc/42/1397h.md?p=c-4) Superfund: - (A) For fiscal year 1987, $212,500,000. - (B) For fiscal year 1988, $212,500,000. - (C) For fiscal year 1989, $212,500,000. - (D) For fiscal year 1990, $212,500,000. - (E) For fiscal year 1991, $212,500,000. - (F) For fiscal year 1992, $212,500,000. - (G) For fiscal year 1993, $212,500,000. - (H) For fiscal year 1994, $212,500,000. In addition there is authorized to be appropriated to the [Hazardous Substance](/usc/42/1397h.md?p=c-4) Superfund for each fiscal year an amount equal to so much of the aggregate amount authorized to be appropriated under this subsection (and paragraph (2) of section 9631(b)[^1] of this title) as has not been appropriated before the beginning of the fiscal year involved. - (2) **Computation—** The amounts authorized to be appropriated under paragraph (1) of this subsection in a given fiscal year shall be available only to the extent that such amount exceeds the amount determined by the [Secretary](/usc/42/242q–4.md?p=2) under [section 9507(b)(2) of title 26](/usc/26/9507.md?p=b-2) for the prior fiscal year. # §9612. Claims procedure - (a) **Claims against Fund for response costs—** No [claim](/usc/42/9601.md?p=4) may be asserted against the [Fund](/usc/42/9601.md?p=11) pursuant to [section 9611(a) of this title](/usc/42/9611.md?p=a) unless such [claim](/usc/42/9601.md?p=4) is presented in the first instance to the [owner](/usc/42/13641.md?p=4), operator, or [guarantor](/usc/42/9601.md?p=13) of the [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) from which a [hazardous substance](/usc/42/1397h.md?p=c-4) has been released, if known to the [claimant](/usc/42/9601.md?p=5), and to any other [person](/usc/42/9601.md?p=21) known to the [claimant](/usc/42/9601.md?p=5) who may be [liable](/usc/42/9601.md?p=32) under [section 9607 of this title](/usc/42/9607.md). In any case where the [claim](/usc/42/9601.md?p=4) has not been satisfied within 60 days of presentation in accordance with this subsection, the [claimant](/usc/42/9601.md?p=5) may present the [claim](/usc/42/9601.md?p=4) to the [Fund](/usc/42/9601.md?p=11) for payment. No [claim](/usc/42/9601.md?p=4) against the [Fund](/usc/42/9601.md?p=11) may be approved or certified during the pendency of an action by the [claimant](/usc/42/9601.md?p=5) in court to recover costs which are the subject of the [claim](/usc/42/9601.md?p=4). - (b) **Forms and procedures applicable—** - (1) **Prescribing forms and procedures—** The President shall prescribe appropriate forms and procedures for [claims](/usc/42/9601.md?p=4) filed hereunder, which shall include a provision requiring the [claimant](/usc/42/9601.md?p=5) to make a sworn verification of the [claim](/usc/42/9601.md?p=4) to the best of his knowledge. Any [person](/usc/42/9601.md?p=21) who knowingly gives or [causes](/usc/42/9908.md?p=c-2) to be given any false information as a part of any such [claim](/usc/42/9601.md?p=4) shall, upon conviction, be fined in accordance with the applicable provisions of [title 18](/usc/18.md) or imprisoned for not more than 3 years (or not more than 5 years in the case of a second or subsequent conviction), or both. - (2) **Payment or request for hearing—** The President may, if satisfied that the information developed during the processing of the [claim](/usc/42/9601.md?p=4) warrants it, make and pay an award of the [claim](/usc/42/9601.md?p=4), except that no [claim](/usc/42/9601.md?p=4) may be awarded to the extent that a judicial judgment has been made on the costs that are the subject of the [claim](/usc/42/9601.md?p=4). If the President declines to pay all or part of the [claim](/usc/42/9601.md?p=4), the [claimant](/usc/42/9601.md?p=5) may, within 30 days after receiving notice of the President’s decision, request an administrative hearing. - (3) **Burden of proof—** In any proceeding under this subsection, the [claimant](/usc/42/9601.md?p=5) shall bear the burden of proving his [claim](/usc/42/9601.md?p=4). - (4) **Decisions—** All administrative decisions made hereunder shall be in writing, with notification to all appropriate parties, and shall be rendered within 90 days of submission of a [claim](/usc/42/9601.md?p=4) to an administrative law judge, unless all the parties to the [claim](/usc/42/9601.md?p=4) agree in writing to an extension or unless the President, in his discretion, extends the time limit for a period not to exceed sixty days. - (5) **Finality and appeal—** All administrative decisions hereunder shall be final, and any party to the proceeding may appeal a decision within 30 days of notification of the award or decision. Any such appeal shall be made to the Federal district court for the district where the [release](/usc/42/9601.md?p=22) or threat of [release](/usc/42/9601.md?p=22) took place. In any such appeal, the decision shall be considered binding and conclusive, and shall not be overturned except for arbitrary or capricious abuse of discretion. - (6) **Payment—** Within 20 days after the expiration of the appeal period for any administrative decision concerning an award, or within 20 days after the final judicial determination of any appeal taken pursuant to this subsection, the President shall pay any such award from the [Fund](/usc/42/9601.md?p=11). The President shall determine the method, terms, and time of payment. - (c) **Subrogation rights; actions maintainable—** - (1) Payment of any [claim](/usc/42/9601.md?p=4) by the [Fund](/usc/42/9601.md?p=11) under this section shall be subject to the [United States](/usc/42/9601.md?p=27) Government acquiring by subrogation the rights of the [claimant](/usc/42/9601.md?p=5) to recover those costs of [removal](/usc/42/9601.md?p=25) or [damages](/usc/42/9601.md?p=6) for which it has compensated the [claimant](/usc/42/9601.md?p=5) from the [person](/usc/42/9601.md?p=21) responsible or [liable](/usc/42/9601.md?p=32) for such [release](/usc/42/9601.md?p=22). - (2) Any [person](/usc/42/9601.md?p=21), including the [Fund](/usc/42/9601.md?p=11), who pays compensation pursuant to this chapter to any [claimant](/usc/42/9601.md?p=5) for [damages](/usc/42/9601.md?p=6) or costs resulting from a [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) shall be subrogated to all rights, [claims](/usc/42/9601.md?p=4), and [causes](/usc/42/9908.md?p=c-2) of action for such [damages](/usc/42/9601.md?p=6) and costs of [removal](/usc/42/9601.md?p=25) that the [claimant](/usc/42/9601.md?p=5) has under this chapter or any other law. - (3) Upon request of the President, the [Attorney General](/usc/42/14902.md?p=6) shall commence an action on behalf of the [Fund](/usc/42/9601.md?p=11) to recover any compensation paid by the [Fund](/usc/42/9601.md?p=11) to any [claimant](/usc/42/9601.md?p=5) pursuant to this subchapter, and, without regard to any limitation of [liability](/usc/42/9601.md?p=32), all interest, administrative and adjudicative costs, and attorney’s fees incurred by the [Fund](/usc/42/9601.md?p=11) by reason of the [claim](/usc/42/9601.md?p=4). Such an action may be commenced against any [owner](/usc/42/13641.md?p=4), operator, or [guarantor](/usc/42/9601.md?p=13), or against any other [person](/usc/42/9601.md?p=21) who is [liable](/usc/42/9601.md?p=32), pursuant to any law, to the compensated [claimant](/usc/42/9601.md?p=5) or to the [Fund](/usc/42/9601.md?p=11), for the [damages](/usc/42/9601.md?p=6) or costs for which compensation was paid. - (d) **Statute of limitations—** - (1) **Claims for recovery of costs—** No [claim](/usc/42/9601.md?p=4) may be presented under this section for recovery of the costs referred to in [section 9607(a) of this title](/usc/42/9607.md?p=a) after the date 6 years after the date of completion of all [response](/usc/42/9601.md?p=25) action. - (2) **Claims for recovery of damages—** No [claim](/usc/42/9601.md?p=4) may be presented under this section for recovery of the [damages](/usc/42/9601.md?p=6) referred to in [section 9607(a) of this title](/usc/42/9607.md?p=a) unless the [claim](/usc/42/9601.md?p=4) is presented within 3 years after the later of the following: - (A) The date of the discovery of the loss and its connection with the [release](/usc/42/9601.md?p=22) in question. - (B) The date on which final regulations are promulgated under [section 9651(c) of this title](/usc/42/9651.md?p=c). - (3) **Minors and incompetents—** The time limitations contained herein shall not begin to run— - (A) against a minor until the earlier of the date when such minor reaches 18 years of age or the date on which a legal [representative](/usc/42/3058f.md?p=5) is duly appointed for the minor, or - (B) against an incompetent [person](/usc/42/9601.md?p=21) until the earlier of the date on which such [person](/usc/42/9601.md?p=21)’s incompetency ends or the date on which a legal [representative](/usc/42/3058f.md?p=5) is duly appointed for such incompetent [person](/usc/42/9601.md?p=21). - (e) **Other statutory or common law claims not waived, etc.** Regardless of any [State](/usc/42/9601.md?p=27) statutory or common law to the contrary, no [person](/usc/42/9601.md?p=21) who asserts a [claim](/usc/42/9601.md?p=4) against the [Fund](/usc/42/9601.md?p=11) pursuant to this subchapter shall be deemed or held to have waived any other [claim](/usc/42/9601.md?p=4) not covered or assertable against the [Fund](/usc/42/9601.md?p=11) under this subchapter arising from the same incident, transaction, or set of circumstances, nor to have split a [cause](/usc/42/9908.md?p=c-2) of action. Further, no [person](/usc/42/9601.md?p=21) asserting a [claim](/usc/42/9601.md?p=4) against the [Fund](/usc/42/9601.md?p=11) pursuant to this subchapter shall as a result of any determination of a question of fact or law made in connection with that [claim](/usc/42/9601.md?p=4) be deemed or held to be collaterally estopped from raising such question in connection with any other [claim](/usc/42/9601.md?p=4) not covered or assertable against the [Fund](/usc/42/9601.md?p=11) under this subchapter arising from the same incident, transaction, or set of circumstances. - (f) **Double recovery prohibited—** Where the President has paid out of the [Fund](/usc/42/9601.md?p=11) for any [response](/usc/42/9601.md?p=25) costs or any costs specified under section [9611(c)(1)](/usc/42/9611.md?p=c-1) or [(2)](/usc/42/9611.md?p=c-2) of this title, no other [claim](/usc/42/9601.md?p=4) may be paid out of the [Fund](/usc/42/9601.md?p=11) for the same costs. # §9613. Civil proceedings - (a) **Review of regulations in Circuit Court of Appeals of the United States for the District of Columbia—** Review of any regulation promulgated under this chapter may be had upon application by any interested [person](/usc/42/9601.md?p=21) only in the Circuit Court of Appeals of the [United States](/usc/42/9601.md?p=27) for the District of Columbia. Any such application shall be made within ninety days from the date of promulgation of such regulations. Any matter with respect to which review could have been obtained under this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement or to obtain [damages](/usc/42/9601.md?p=6) or recovery of [response](/usc/42/9601.md?p=25) costs. - (b) **Jurisdiction; venue—** Except as provided in subsections [(a)](#a) and [(h)](#h) of this section, the [United States](/usc/42/9601.md?p=27) district courts shall have exclusive original jurisdiction over all controversies arising under this chapter, without regard to the citizenship of the parties or the amount in controversy. Venue shall lie in any district in which the [release](/usc/42/9601.md?p=22) or [damages](/usc/42/9601.md?p=6) occurred, or in which the defendant resides, may be found, or has his principal [office](/usc/42/3058f.md?p=1). For the purposes of this section, the [Fund](/usc/42/9601.md?p=11) shall reside in the District of Columbia. - (c) **Controversies or other matters resulting from tax collection or tax regulation review—** The provisions of subsections [(a)](#a) and [(b)](#b) of this section shall not apply to any controversy or other matter resulting from the assessment of collection of any tax, as provided by subchapter II[^1] of this chapter, or to the review of any regulation promulgated under [title 26](/usc/26.md). - (d) **Litigation commenced prior to December 11, 1980—** No provision of this chapter shall be deemed or held to moot any litigation concerning any [release](/usc/42/9601.md?p=22) of any [hazardous substance](/usc/42/1397h.md?p=c-4), or any [damages](/usc/42/9601.md?p=6) associated therewith, commenced prior to December 11, 1980. - (e) **Nationwide service of process—** In any action by the [United States](/usc/42/9601.md?p=27) under this chapter, process may be served in any district where the defendant is found, resides, transacts business, or has appointed an agent for the service of process. - (f) **Contribution—** - (1) **Contribution—** Any [person](/usc/42/9601.md?p=21) may seek contribution from any other [person](/usc/42/9601.md?p=21) who is [liable](/usc/42/9601.md?p=32) or potentially [liable](/usc/42/9601.md?p=32) under [section 9607(a) of this title](/usc/42/9607.md?p=a), during or following any civil action under [section 9606 of this title](/usc/42/9606.md) or under [section 9607(a) of this title](/usc/42/9607.md?p=a). Such [claims](/usc/42/9601.md?p=4) shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution [claims](/usc/42/9601.md?p=4), the court may allocate [response](/usc/42/9601.md?p=25) costs among [liable](/usc/42/9601.md?p=32) parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any [person](/usc/42/9601.md?p=21) to bring an action for contribution in the absence of a civil action under [section 9606 of this title](/usc/42/9606.md) or [section 9607 of this title](/usc/42/9607.md). - (2) **Settlement—** A [person](/usc/42/9601.md?p=21) who has resolved its [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) or a [State](/usc/42/9601.md?p=27) in an administrative or judicially approved settlement shall not be [liable](/usc/42/9601.md?p=32) for [claims](/usc/42/9601.md?p=4) for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially [liable](/usc/42/9601.md?p=32) [persons](/usc/42/9601.md?p=21) unless its terms so provide, but it reduces the potential [liability](/usc/42/9601.md?p=32) of the others by the amount of the settlement. - (3) **Persons not party to settlement—** - (A) If the [United States](/usc/42/9601.md?p=27) or a [State](/usc/42/9601.md?p=27) has obtained less than complete relief from a [person](/usc/42/9601.md?p=21) who has resolved its [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) or the [State](/usc/42/9601.md?p=27) in an administrative or judicially approved settlement, the [United States](/usc/42/9601.md?p=27) or the [State](/usc/42/9601.md?p=27) may bring an action against any [person](/usc/42/9601.md?p=21) who has not so resolved its [liability](/usc/42/9601.md?p=32). - (B) A [person](/usc/42/9601.md?p=21) who has resolved its [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) or a [State](/usc/42/9601.md?p=27) for some or all of a [response](/usc/42/9601.md?p=25) action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any [person](/usc/42/9601.md?p=21) who is not party to a settlement referred to in [paragraph (2)](#f-2). - (C) In any action under this paragraph, the rights of any [person](/usc/42/9601.md?p=21) who has resolved its [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) or a [State](/usc/42/9601.md?p=27) shall be subordinate to the rights of the [United States](/usc/42/9601.md?p=27) or the [State](/usc/42/9601.md?p=27). Any contribution action brought under this paragraph shall be governed by Federal law. - (g) **Period in which action may be brought—** - (1) **Actions for natural resource damages—** Except as provided in paragraphs [(3)](#g-3) and [(4)](#g-4), no action may be commenced for [damages](/usc/42/9601.md?p=6) (as defined in [section 9601(6) of this title](/usc/42/9601.md?p=6)) under this chapter, unless that action is commenced within 3 years after the later of the following: - (A) The date of the discovery of the loss and its connection with the [release](/usc/42/9601.md?p=22) in question. - (B) The date on which regulations are promulgated under [section 9651(c) of this title](/usc/42/9651.md?p=c). With respect to any [facility](/usc/42/9601.md?p=9) listed on the National Priorities List (NPL), any [Federal facility](/usc/42/17061.md?p=8) identified under [section 9620 of this title](/usc/42/9620.md) (relating to [Federal facilities](/usc/42/17061.md?p=8)), or any [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) at which a [remedial action](/usc/42/9601.md?p=24) under this chapter is otherwise scheduled, an action for [damages](/usc/42/9601.md?p=6) under this chapter must be commenced within 3 years after the completion of the [remedial action](/usc/42/9601.md?p=24) (excluding operation and maintenance activities) in lieu of the dates referred to in subparagraph [(A)](#g-1-A) or [(B)](#g-1-B). In no event may an action for [damages](/usc/42/9601.md?p=6) under this chapter with respect to such a [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) be commenced (i) prior to 60 days after the Federal or [State](/usc/42/9601.md?p=27) natural resource trustee provides to the President and the potentially responsible party a notice of intent to file suit, or (ii) before selection of the [remedial action](/usc/42/9601.md?p=24) if the President is diligently proceeding with a remedial investigation and feasibility study under [section 9604(b) of this title](/usc/42/9604.md?p=b) or [section 9620 of this title](/usc/42/9620.md) (relating to [Federal facilities](/usc/42/17061.md?p=8)). The limitation in the preceding sentence on commencing an action before giving notice or before selection of the [remedial action](/usc/42/9601.md?p=24) does not apply to actions filed on or before October 17, 1986. - (2) **Actions for recovery of costs—** An initial action for recovery of the costs referred to in [section 9607 of this title](/usc/42/9607.md) must be commenced— - (A) for a [removal](/usc/42/9601.md?p=25) action, within 3 years after completion of the [removal](/usc/42/9601.md?p=25) action, except that such cost recovery action must be brought within 6 years after a determination to grant a waiver under [section 9604(c)(1)(C) of this title](/usc/42/9604.md) for continued [response](/usc/42/9601.md?p=25) action; and - (B) for a [remedial action](/usc/42/9601.md?p=24), within 6 years after initiation of physical on-site [construction](/usc/42/7479.md?p=2-C) of the [remedial action](/usc/42/9601.md?p=24), except that, if the [remedial action](/usc/42/9601.md?p=24) is initiated within 3 years after the completion of the [removal](/usc/42/9601.md?p=25) action, costs incurred in the [removal](/usc/42/9601.md?p=25) action may be recovered in the cost recovery action brought under this subparagraph. In any such action described in this subsection, the court shall enter a declaratory judgment on [liability](/usc/42/9601.md?p=32) for [response](/usc/42/9601.md?p=25) costs or [damages](/usc/42/9601.md?p=6) that will be binding on any subsequent action or actions to recover further [response](/usc/42/9601.md?p=25) costs or [damages](/usc/42/9601.md?p=6). A subsequent action or actions under [section 9607 of this title](/usc/42/9607.md) for further [response](/usc/42/9601.md?p=25) costs at the [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) may be maintained at any time during the [response](/usc/42/9601.md?p=25) action, but must be commenced no later than 3 years after the date of completion of all [response](/usc/42/9601.md?p=25) action. Except as otherwise provided in this paragraph, an action may be commenced under [section 9607 of this title](/usc/42/9607.md) for recovery of costs at any time after such costs have been incurred. - (3) **Contribution—** No action for contribution for any [response](/usc/42/9601.md?p=25) costs or [damages](/usc/42/9601.md?p=6) may be commenced more than 3 years after— - (A) the date of judgment in any action under this chapter for recovery of such costs or [damages](/usc/42/9601.md?p=6), or - (B) the date of an administrative order under [section 9622(g) of this title](/usc/42/9622.md?p=g) (relating to de minimis settlements) or [9622(h)](/usc/42/9622.md?p=h) of this title (relating to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or [damages](/usc/42/9601.md?p=6). - (4) **Subrogation—** No action based on rights subrogated pursuant to this section by reason of payment of a [claim](/usc/42/9601.md?p=4) may be commenced under this subchapter more than 3 years after the date of payment of such [claim](/usc/42/9601.md?p=4). - (5) **Actions to recover indemnification payments—** Notwithstanding any other provision of this subsection, where a payment pursuant to an indemnification [agreement](/usc/42/1320b–8.md?p=a-3-A) with a [response](/usc/42/9601.md?p=25) action contractor is made under [section 9619 of this title](/usc/42/9619.md), an action under [section 9607 of this title](/usc/42/9607.md) for recovery of such indemnification payment from a potentially responsible party may be brought at any time before the expiration of 3 years from the date on which such payment is made. - (6) **Minors and incompetents—** The time limitations contained herein shall not begin to run— - (A) against a minor until the earlier of the date when such minor reaches 18 years of age or the date on which a legal [representative](/usc/42/3058f.md?p=5) is duly appointed for such minor, or - (B) against an incompetent [person](/usc/42/9601.md?p=21) until the earlier of the date on which such incompetent’s incompetency ends or the date on which a legal [representative](/usc/42/3058f.md?p=5) is duly appointed for such incompetent. - (h) **Timing of review—** No Federal court shall have jurisdiction under Federal law other than under [section 1332 of title 28](/usc/28/1332.md) (relating to diversity of citizenship jurisdiction) or under [State](/usc/42/9601.md?p=27) law which is applicable or relevant and appropriate under [section 9621 of this title](/usc/42/9621.md) (relating to cleanup [standards](/usc/42/1320d.md?p=7)) to review any challenges to [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) selected under [section 9604 of this title](/usc/42/9604.md), or to review any order issued under [section 9606(a) of this title](/usc/42/9606.md?p=a), in any action except one of the following: - (1) An action under [section 9607 of this title](/usc/42/9607.md) to recover [response](/usc/42/9601.md?p=25) costs or [damages](/usc/42/9601.md?p=6) or for contribution. - (2) An action to enforce an order issued under [section 9606(a) of this title](/usc/42/9606.md?p=a) or to recover a penalty for [violation](/usc/42/2000e–16a.md?p=c) of such order. - (3) An action for reimbursement under [section 9606(b)(2) of this title](/usc/42/9606.md?p=b-2). - (4) An action under [section 9659 of this title](/usc/42/9659.md) (relating to citizens suits) alleging that the [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) taken under [section 9604 of this title](/usc/42/9604.md) or secured under [section 9606 of this title](/usc/42/9606.md) was in [violation](/usc/42/2000e–16a.md?p=c) of any requirement of this chapter. Such an action may not be brought with regard to a [removal](/usc/42/9601.md?p=25) where a [remedial action](/usc/42/9601.md?p=24) is to be undertaken at the site. - (5) An action under [section 9606 of this title](/usc/42/9606.md) in which the [United States](/usc/42/9601.md?p=27) has moved to compel a [remedial action](/usc/42/9601.md?p=24). - (i) **Intervention—** In any action commenced under this chapter or under the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6901](/usc/42/6901.md) et seq.] in a court of the [United States](/usc/42/9601.md?p=27), any [person](/usc/42/9601.md?p=21) may intervene as a matter of right when such [person](/usc/42/9601.md?p=21) [claims](/usc/42/9601.md?p=4) an interest relating to the subject of the action and is so situated that the disposition of the action may, as a practical matter, impair or impede the [person](/usc/42/9601.md?p=21)’s ability to protect that interest, unless the President or the [State](/usc/42/9601.md?p=27) shows that the [person](/usc/42/9601.md?p=21)’s interest is adequately represented by existing parties. - (j) **Judicial review—** - (1) **Limitation—** In any judicial action under this chapter, judicial review of any issues concerning the adequacy of any [response](/usc/42/9601.md?p=25) action taken or ordered by the President shall be limited to the administrative record. Otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court. - (2) **Standard—** In considering objections raised in any judicial action under this chapter, the court shall uphold the President’s decision in selecting the [response](/usc/42/9601.md?p=25) action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law. - (3) **Remedy—** If the court finds that the selection of the [response](/usc/42/9601.md?p=25) action was arbitrary and capricious or otherwise not in accordance with law, the court shall award (A) only the [response](/usc/42/9601.md?p=25) costs or [damages](/usc/42/9601.md?p=6) that are not inconsistent with the [national contingency plan](/usc/42/9601.md?p=31), and (B) such other relief as is consistent with the [National Contingency Plan](/usc/42/9601.md?p=31). - (4) **Procedural errors—** In reviewing alleged procedural errors, the court may disallow costs or [damages](/usc/42/9601.md?p=6) only if the errors were so serious and related to matters of such central relevance to the action that the action would have been significantly changed had such errors not been made. - (k) **Administrative record and participation procedures—** - (1) **Administrative record—** The President shall establish an administrative record upon which the President shall base the selection of a [response](/usc/42/9601.md?p=25) action. The administrative record shall be available to the public at or near the [facility](/usc/42/9601.md?p=9) at issue. The President also may place duplicates of the administrative record at any other location. - (2) **Participation procedures—** - (A) **Removal action—** The President shall promulgate regulations in accordance with [chapter 5](/usc/5/chptI-ch5.md) of title 5 establishing procedures for the appropriate participation of interested [persons](/usc/42/9601.md?p=21) in the development of the administrative record on which the President will base the selection of [removal](/usc/42/9601.md?p=25) actions and on which judicial review of [removal](/usc/42/9601.md?p=25) actions will be based. - (B) **Remedial action—** The President shall provide for the participation of interested [persons](/usc/42/9601.md?p=21), including potentially responsible parties, in the development of the administrative record on which the President will base the selection of [remedial actions](/usc/42/9601.md?p=24) and on which judicial review of [remedial actions](/usc/42/9601.md?p=24) will be based. The procedures developed under this subparagraph shall include, at a minimum, each of the following: - (i) Notice to potentially affected [persons](/usc/42/9601.md?p=21) and the public, which shall be accompanied by a brief analysis of the plan and alternative plans that were considered. - (ii) A reasonable opportunity to comment and provide information regarding the plan. - (iii) An opportunity for a public meeting in the affected area, in accordance with [section 9617(a)(2) of this title](/usc/42/9617.md?p=a-2) (relating to public participation). - (iv) A [response](/usc/42/9601.md?p=25) to each of the significant comments, criticisms, and new data submitted in written or oral presentations. - (v) A statement of the basis and purpose of the selected action. For purposes of this subparagraph, the administrative record shall include all items developed and received under this subparagraph and all items described in the second sentence of [section 9617(d) of this title](/usc/42/9617.md?p=d). The President shall promulgate regulations in accordance with [chapter 5](/usc/5/chptI-ch5.md) of title 5 to carry out the requirements of this subparagraph. - (C) **Interim record—** Until such regulations under subparagraphs [(A)](#k-2-A) and [(B)](#k-2-B) are promulgated, the administrative record shall consist of all items developed and received pursuant to current procedures for selection of the [response](/usc/42/9601.md?p=25) action, including procedures for the participation of interested parties and the public. The development of an administrative record and the selection of [response](/usc/42/9601.md?p=25) action under this chapter shall not include an adjudicatory hearing. - (D) **Potentially responsible parties—** The President shall make reasonable efforts to identify and notify potentially responsible parties as early as possible before selection of a [response](/usc/42/9601.md?p=25) action. Nothing in this paragraph shall be construed to be a defense to [liability](/usc/42/9601.md?p=32). - (l) **Notice of actions—** Whenever any action is brought under this chapter in a court of the [United States](/usc/42/9601.md?p=27) by a plaintiff other than the [United States](/usc/42/9601.md?p=27), the plaintiff shall provide a copy of the complaint to the [Attorney General](/usc/42/14902.md?p=6) of the [United States](/usc/42/9601.md?p=27) and to the [Administrator](/usc/42/9601.md?p=2) of the Environmental Protection Agency. # §9614. Relationship to other law - (a) **Additional State liability or requirements with respect to release of substances within State—** Nothing in this chapter shall be construed or interpreted as preempting any [State](/usc/42/9601.md?p=27) from imposing any additional [liability](/usc/42/9601.md?p=32) or requirements with respect to the [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4) within such [State](/usc/42/9601.md?p=27). - (b) **Recovery under other State or Federal law of compensation for removal costs or damages, or payment of claims—** Any [person](/usc/42/9601.md?p=21) who receives compensation for [removal](/usc/42/9601.md?p=25) costs or [damages](/usc/42/9601.md?p=6) or [claims](/usc/42/9601.md?p=4) pursuant to this chapter shall be precluded from recovering compensation for the same [removal](/usc/42/9601.md?p=25) costs or [damages](/usc/42/9601.md?p=6) or [claims](/usc/42/9601.md?p=4) pursuant to any other [State](/usc/42/9601.md?p=27) or Federal law. Any [person](/usc/42/9601.md?p=21) who receives compensation for [removal](/usc/42/9601.md?p=25) costs or [damages](/usc/42/9601.md?p=6) or [claims](/usc/42/9601.md?p=4) pursuant to any other Federal or [State](/usc/42/9601.md?p=27) law shall be precluded from receiving compensation for the same [removal](/usc/42/9601.md?p=25) costs or [damages](/usc/42/9601.md?p=6) or [claims](/usc/42/9601.md?p=4) as provided in this chapter. - (c) **Recycled oil—** - (1) **Service station dealers, etc.** No [person](/usc/42/9601.md?p=21) (including the [United States](/usc/42/9601.md?p=27) or any [State](/usc/42/9601.md?p=27)) may recover, under the authority of subsection (a)(3) or (a)(4) of [section 9607 of this title](/usc/42/9607.md), from a [service station dealer](/usc/42/9601.md?p=37-A) for any [response](/usc/42/9601.md?p=25) costs or [damages](/usc/42/9601.md?p=6) resulting from a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of [recycled oil](#c-3), or use the authority of [section 9606 of this title](/usc/42/9606.md) against a [service station dealer](/usc/42/9601.md?p=37-A) other than a [person](/usc/42/9601.md?p=21) described in subsection (a)(1) or (a)(2) of [section 9607 of this title](/usc/42/9607.md), if such [recycled oil](#c-3)— - (A) is not mixed with any other [hazardous substance](/usc/42/1397h.md?p=c-4), and - (B) is stored, treated, transported, or otherwise managed in compliance with regulations or [standards](/usc/42/1320d.md?p=7) promulgated pursuant to section 3014 of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6935](/usc/42/6935.md)] and other applicable authorities. Nothing in this paragraph shall affect or modify in any way the obligations or [liability](/usc/42/9601.md?p=32) of any [person](/usc/42/9601.md?p=21) under any other provision of [State](/usc/42/9601.md?p=27) or Federal law, including common law, for [damages](/usc/42/9601.md?p=6), injury, or loss resulting from a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of any [hazardous substance](/usc/42/1397h.md?p=c-4) or for [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) or the costs of [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24). - (2) **Presumption—** Solely for the purposes of this subsection, a [service station dealer](/usc/42/9601.md?p=37-A) may presume that a small quantity of [used oil](#c-3) is not mixed with other [hazardous substances](/usc/42/1397h.md?p=c-4) if it— - (A) has been removed from the engine of a [light duty motor vehicle](/usc/42/13211.md?p=11) or household appliances by the [owner](/usc/42/13641.md?p=4) of such vehicle or appliances, and - (B) is presented, by such [owner](/usc/42/13641.md?p=4), to the dealer for collection, accumulation, and delivery to an oil recycling [facility](/usc/42/9601.md?p=9). - (3) **Definition—** For purposes of this subsection, the terms “used oil” and “recycled oil” have the same meanings as set forth in sections 1004(36) and 1004(37) of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6903(36)](/usc/42/6903.md?p=36), (37)] and regulations promulgated pursuant to that Act [[42 U.S.C. 6901](/usc/42/6901.md) et seq.]. - (4) **Effective date—** The effective date of paragraphs (1) and (2) of this subsection shall be the effective date of regulations or [standards](/usc/42/1320d.md?p=7) promulgated under section 3014 of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6935](/usc/42/6935.md)] that include, among other provisions, a requirement to conduct corrective action to [respond](/usc/42/9601.md?p=25) to any [releases](/usc/42/9601.md?p=22) of [recycled oil](#c-3) under subtitle C or subtitle I of such Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq., 6991 et seq.]. - (d) **Financial responsibility of owner or operator of vessel or facility under State or local law, rule, or regulation—** Except as provided in this subchapter, no [owner or operator](/usc/42/9601.md?p=20-A) of a [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) who establishes and maintains evidence of financial responsibility in accordance with this subchapter shall be required under any [State](/usc/42/9601.md?p=27) or local law, rule, or regulation to establish or maintain any other evidence of financial responsibility in connection with [liability](/usc/42/9601.md?p=32) for the [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) from such [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9). Evidence of compliance with the financial responsibility requirements of this subchapter shall be accepted by a [State](/usc/42/9601.md?p=27) in lieu of any other requirement of financial responsibility imposed by such [State](/usc/42/9601.md?p=27) in connection with [liability](/usc/42/9601.md?p=32) for the [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) from such [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9). # §9615. Presidential delegation and assignment of duties or powers and promulgation of regulations The President is authorized to delegate and assign any duties or powers imposed upon or assigned to him and to promulgate any regulations necessary to carry out the provisions of this subchapter. # §9616. Schedules - (a) **Assessment and listing of facilities—** It shall be a goal of this chapter that, to the maximum extent practicable— - (1) not later than January 1, 1988, the President shall complete preliminary assessments of all [facilities](/usc/42/9601.md?p=9) that are contained (as of October 17, 1986) on the Comprehensive Environmental [Response](/usc/42/9601.md?p=25), Compensation, and [Liability](/usc/42/9601.md?p=32) Information System (CERCLIS) including in each assessment a statement as to whether a site [inspection](/usc/42/4851b.md?p=12) is necessary and by whom it should be carried out; and - (2) not later than January 1, 1989, the President shall assure the completion of site [inspections](/usc/42/4851b.md?p=12) at all [facilities](/usc/42/9601.md?p=9) for which the President has stated a site [inspection](/usc/42/4851b.md?p=12) is necessary pursuant to [paragraph (1)](#a-1). - (b) **Evaluation—** Within 4 years after October 17, 1986, each [facility](/usc/42/9601.md?p=9) listed (as of October 17, 1986) in the CERCLIS shall be evaluated if the President determines that such evaluation is warranted on the basis of a site [inspection](/usc/42/4851b.md?p=12) or preliminary assessment. The evaluation shall be in accordance with the criteria established in [section 9605 of this title](/usc/42/9605.md) under the [National Contingency Plan](/usc/42/9601.md?p=31) for determining priorities among [release](/usc/42/9601.md?p=22) for inclusion on the National Priorities List. In the case of a [facility](/usc/42/9601.md?p=9) listed in the CERCLIS after October 17, 1986, the [facility](/usc/42/9601.md?p=9) shall be evaluated within 4 years after the date of such listing if the President determines that such evaluation is warranted on the basis of a site [inspection](/usc/42/4851b.md?p=12) or preliminary assessment. - (c) **Explanations—** If any of the goals established by subsection [(a)](#a) or [(b)](#b) are not achieved, the President shall publish an explanation of why such action could not be completed by the specified date. - (d) **Commencement of RI/FS—** The President shall assure that remedial investigations and feasibility studies (RI/FS) are commenced for [facilities](/usc/42/9601.md?p=9) listed on the National Priorities List, in addition to those commenced prior to October 17, 1986, in accordance with the following schedule: - (1) not fewer than 275 by the date 36 months after October 17, 1986, and - (2) if the requirement of [paragraph (1)](#d-1) is not met, not fewer than an additional 175 by the date 4 years after October 17, 1986, an additional 200 by the date 5 years after October 17, 1986, and a total of 650 by the date 5 years after October 17, 1986. - (e) **Commencement of remedial action—** The President shall assure that substantial and continuous physical on-site [remedial action](/usc/42/9601.md?p=24) commences at [facilities](/usc/42/9601.md?p=9) on the National Priorities List, in addition to those [facilities](/usc/42/9601.md?p=9) on which [remedial action](/usc/42/9601.md?p=24) has commenced prior to October 17, 1986, at a rate not fewer than: - (1) 175 [facilities](/usc/42/9601.md?p=9) during the first 36-month period after October 17, 1986; and - (2) 200 additional [facilities](/usc/42/9601.md?p=9) during the following 24 months after such 36-month period. # §9617. Public participation - (a) **Proposed plan—** Before adoption of any plan for [remedial action](/usc/42/9601.md?p=24) to be undertaken by the President, by a [State](/usc/42/9601.md?p=27), or by any other [person](/usc/42/9601.md?p=21), under section [9604](/usc/42/9604.md), [9606](/usc/42/9606.md), [9620](/usc/42/9620.md), or [9622](/usc/42/9622.md) of this title, the President or [State](/usc/42/9601.md?p=27), as appropriate, shall take both of the following actions: - (1) Publish a notice and brief analysis of the proposed plan and make such plan available to the public. - (2) Provide a reasonable opportunity for submission of written and oral comments and an opportunity for a public meeting at or near the [facility](/usc/42/9601.md?p=9) at issue regarding the proposed plan and regarding any proposed findings under [section 9621(d)(4) of this title](/usc/42/9621.md?p=d-4) (relating to cleanup [standards](/usc/42/1320d.md?p=7)). The President or the [State](/usc/42/9601.md?p=27) shall keep a transcript of the meeting and make such transcript available to the public. The notice and analysis published under [paragraph (1)](#a-1) shall include sufficient information as may be necessary to provide a reasonable explanation of the proposed plan and alternative proposals considered. - (b) **Final plan—** Notice of the final [remedial action](/usc/42/9601.md?p=24) plan adopted shall be published and the plan shall be made available to the public before commencement of any [remedial action](/usc/42/9601.md?p=24). Such final plan shall be accompanied by a discussion of any significant changes (and the reasons for such changes) in the proposed plan and a [response](/usc/42/9601.md?p=25) to each of the significant comments, criticisms, and new data submitted in written or oral presentations under [subsection (a)](#a). - (c) **Explanation of differences—** After adoption of a final [remedial action](/usc/42/9601.md?p=24) plan— - (1) if any [remedial action](/usc/42/9601.md?p=24) is taken, - (2) if any [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) under [section 9606 of this title](/usc/42/9606.md) is taken, or - (3) if any settlement or consent decree under [section 9606 of this title](/usc/42/9606.md) or [section 9622 of this title](/usc/42/9622.md) is entered into, and if such action, settlement, or decree differs in any significant respects from the final plan, the President or the [State](/usc/42/9601.md?p=27) shall publish an explanation of the significant differences and the reasons such changes were made. - (d) **Publication—** For the purposes of this section, publication shall include, at a minimum, publication in a major local newspaper of general circulation. In addition, each item developed, received, published, or made available to the public under this section shall be available for public [inspection](/usc/42/4851b.md?p=12) and copying at or near the [facility](/usc/42/9601.md?p=9) at issue. - (e) **Grants for technical assistance—** - (1) **Authority—** Subject to such amounts as are provided in appropriations Acts and in accordance with rules promulgated by the President, the President may make grants available to any group of individuals which may be affected by a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) at any [facility](/usc/42/9601.md?p=9) which is listed on the National Priorities List under the [National Contingency Plan](/usc/42/9601.md?p=31). Such grants may be used to obtain technical assistance in interpreting information with regard to the nature of the [hazard](/usc/42/5165f.md?p=a-3), remedial investigation and feasibility study, record of decision, remedial design, selection and [construction](/usc/42/7479.md?p=2-C) of [remedial action](/usc/42/9601.md?p=24), operation and maintenance, or [removal](/usc/42/9601.md?p=25) action at such [facility](/usc/42/9601.md?p=9). - (2) **Amount—** The amount of any grant under this subsection may not exceed $50,000 for a [single](/usc/42/2304.md?p=m) grant [recipient](/usc/42/2996a.md?p=6). The President may waive the $50,000 limitation in any case where such waiver is necessary to carry out the purposes of this subsection. Each grant [recipient](/usc/42/2996a.md?p=6) shall be required, as a condition of the grant, to contribute at least 20 percent of the total of costs of the technical assistance for which such grant is made. The President may waive the 20 percent contribution requirement if the grant [recipient](/usc/42/2996a.md?p=6) demonstrates financial need and such waiver is necessary to facilitate public participation in the selection of [remedial action](/usc/42/9601.md?p=24) at the [facility](/usc/42/9601.md?p=9). Not more than one grant may be made under this subsection with respect to a [single](/usc/42/2304.md?p=m) [facility](/usc/42/9601.md?p=9), but the grant may be renewed to facilitate public participation at all stages of [remedial action](/usc/42/9601.md?p=24). # §9618. High priority for drinking water supplies For purposes of taking action under section [9604](/usc/42/9604.md) or [9606](/usc/42/9606.md) of this title and listing [facilities](/usc/42/9601.md?p=9) on the National Priorities List, the President shall give a high priority to [facilities](/usc/42/9601.md?p=9) where the [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4) or [pollutants](/usc/42/1397h.md?p=c-4) or [contaminants](/usc/42/1397h.md?p=c-4) has resulted in the closing of drinking water wells or has contaminated a principal [drinking water supply](/usc/42/9601.md?p=7). # §9619. Response action contractors - (a) **Liability of response action contractors—** - (1) **Response action contractors—** A [person](/usc/42/9601.md?p=21) who is a [response action contractor](#e-2) with respect to any [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) from a [vessel](/usc/42/9601.md?p=28) or [facility](/usc/42/9601.md?p=9) shall not be [liable](/usc/42/9601.md?p=32) under this subchapter or under any other Federal law to any [person](/usc/42/9601.md?p=21) for injuries, costs, [damages](/usc/42/9601.md?p=6), expenses, or other [liability](/usc/42/9601.md?p=32) (including but not limited to [claims](/usc/42/9601.md?p=4) for indemnification or contribution and [claims](/usc/42/9601.md?p=4) by third parties for death, personal injury, illness or loss of or damage to property or economic loss) which results from such [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22). - (2) **Negligence, etc.** [Paragraph (1)](#a-1) shall not apply in the case of a [release](/usc/42/9601.md?p=22) that is caused by conduct of the [response action contractor](#e-2) which is negligent, grossly negligent, or which constitutes intentional misconduct. - (3) **Effect on warranties; employer liability—** Nothing in this subsection shall affect the [liability](/usc/42/9601.md?p=32) of any [person](/usc/42/9601.md?p=21) under any warranty under Federal, [State](/usc/42/9601.md?p=27), or common law. Nothing in this subsection shall affect the [liability](/usc/42/9601.md?p=32) of an employer who is a [response action contractor](#e-2) to any [employee](/usc/42/1320a–7h.md?p=e-7) of such employer under any provision of law, including any provision of any law relating to worker’s compensation. - (4) **Governmental employees—** A [state](/usc/42/9601.md?p=27) [employee](/usc/42/1320a–7h.md?p=e-7) or an [employee](/usc/42/1320a–7h.md?p=e-7) of a political subdivision who provides services relating to [response](/usc/42/9601.md?p=25) action while acting within the scope of his authority as a governmental [employee](/usc/42/1320a–7h.md?p=e-7) shall have the same exemption from [liability](/usc/42/9601.md?p=32) (subject to the other provisions of this section) as is provided to the [response action contractor](#e-2) under this section. - (b) **Savings provisions—** - (1) **Liability of other persons—** The defense provided by [section 9607(b)(3) of this title](/usc/42/9607.md?p=b-3) shall not be available to any potentially responsible party with respect to any costs or [damages](/usc/42/9601.md?p=6) caused by any act or omission of a [response action contractor](#e-2). Except as provided in [subsection (a)(4)](#a-4) and the preceding sentence, nothing in this section shall affect the [liability](/usc/42/9601.md?p=32) under this chapter or under any other Federal or [State](/usc/42/9601.md?p=27) law of any [person](/usc/42/9601.md?p=21), other than a [response action contractor](#e-2). - (2) **Burden of plaintiff—** Nothing in this section shall affect the plaintiff’s burden of establishing [liability](/usc/42/9601.md?p=32) under this subchapter. - (c) **Indemnification—** - (1) **In general—** The President may agree to hold harmless and indemnify any [response action contractor](#e-2) meeting the requirements of this subsection against any [liability](/usc/42/9601.md?p=32) (including the expenses of litigation or settlement) for negligence arising out of the contractor’s performance in carrying out [response](/usc/42/9601.md?p=25) action activities under this subchapter, unless such [liability](/usc/42/9601.md?p=32) was caused by conduct of the contractor which was grossly negligent or which constituted intentional misconduct. - (2) **Applicability—** This subsection shall apply only with respect to a [response](/usc/42/9601.md?p=25) action carried out under written [agreement](/usc/42/1320b–8.md?p=a-3-A) with— - (A) the President; - (B) any Federal agency; - (C) a [State](/usc/42/9601.md?p=27) or political subdivision which has entered into a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) in accordance with [section 9604(d)(1) of this title](/usc/42/9604.md?p=d-1); or - (D) any potentially responsible party carrying out any [agreement](/usc/42/1320b–8.md?p=a-3-A) under [section 9622 of this title](/usc/42/9622.md) (relating to settlements) or [section 9606 of this title](/usc/42/9606.md) (relating to abatement). - (3) **Source of funding—** This subsection shall not be subject to section [1301](/usc/31/1301.md) or [1341](/usc/31/1341.md) of title 31 or section [6301(a)](/usc/41/6301.md?p=a) and [(b)](/usc/41/6301.md?p=b) of title 41 or to [section 9662 of this title](/usc/42/9662.md). For purposes of [section 9611 of this title](/usc/42/9611.md), amounts expended pursuant to this subsection for indemnification of any [response action contractor](#e-2) (except with respect to federally owned or operated [facilities](/usc/42/9601.md?p=9)) shall be considered governmental [response](/usc/42/9601.md?p=25) costs incurred pursuant to [section 9604 of this title](/usc/42/9604.md). If sufficient [funds](/usc/42/9601.md?p=11) are unavailable in the [Hazardous Substance](/usc/42/1397h.md?p=c-4) Superfund established under subchapter A of [chapter 98](/usc/26/chstI-ch98.md) of title 26 to make payments pursuant to such indemnification or if the [Fund](/usc/42/9601.md?p=11) is repealed, there are authorized to be appropriated such amounts as may be necessary to make such payments. - (4) **Requirements—** An indemnification [agreement](/usc/42/1320b–8.md?p=a-3-A) may be provided under this subsection only if the President determines that each of the following requirements are met: - (A) The [liability](/usc/42/9601.md?p=32) covered by the indemnification [agreement](/usc/42/1320b–8.md?p=a-3-A) exceeds or is not covered by [insurance](#e-3) available, at a fair and reasonable price, to the contractor at the time the contractor enters into the contract to provide [response](/usc/42/9601.md?p=25) action, and adequate [insurance](#e-3) to cover such [liability](/usc/42/9601.md?p=32) is not generally available at the time the response action contract is entered into. - (B) The [response action contractor](#e-2) has made diligent efforts to obtain [insurance](#e-3) coverage from non-Federal sources to cover such [liability](/usc/42/9601.md?p=32). - (C) In the case of a response action contract covering more than one [facility](/usc/42/9601.md?p=9), the [response action contractor](#e-2) agrees to continue to make such diligent efforts each time the contractor begins work under the contract at a new [facility](/usc/42/9601.md?p=9). - (5) **Limitations—** - (A) **Liability covered—** Indemnification under this subsection shall apply only to [response action contractor](#e-2) [liability](/usc/42/9601.md?p=32) which results from a [release](/usc/42/9601.md?p=22) of any [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) if such [release](/usc/42/9601.md?p=22) arises out of [response](/usc/42/9601.md?p=25) action activities. - (B) **Deductibles and limits—** An indemnification [agreement](/usc/42/1320b–8.md?p=a-3-A) under this subsection shall include deductibles and shall place limits on the amount of indemnification to be made available. - (C) **Contracts with potentially responsible parties—** - (i) **Decision to indemnify—** In deciding whether to enter into an indemnification [agreement](/usc/42/1320b–8.md?p=a-3-A) with a [response action contractor](#e-2) carrying out a written contract or [agreement](/usc/42/1320b–8.md?p=a-3-A) with any potentially responsible party, the President shall determine an amount which the potentially responsible party is able to indemnify the contractor. The President may enter into such an indemnification [agreement](/usc/42/1320b–8.md?p=a-3-A) only if the President determines that such amount of indemnification is inadequate to cover any reasonable potential [liability](/usc/42/9601.md?p=32) of the contractor arising out of the contractor’s negligence in performing the contract or [agreement](/usc/42/1320b–8.md?p=a-3-A) with such party. The President shall make the determinations in the preceding sentences (with respect to the amount and the adequacy of the amount) taking into account the total net assets and resources of potentially responsible parties with respect to the [facility](/usc/42/9601.md?p=9) at the time of such determinations. - (ii) **Conditions—** The President may pay a [claim](/usc/42/9601.md?p=4) under an indemnification [agreement](/usc/42/1320b–8.md?p=a-3-A) referred to in [clause (i)](#c-5-C-i) for the amount determined under [clause (i)](#c-5-C-i) only if the contractor has exhausted all administrative, judicial, and common law [claims](/usc/42/9601.md?p=4) for indemnification against all potentially responsible parties participating in the clean-up of the [facility](/usc/42/9601.md?p=9) with respect to the [liability](/usc/42/9601.md?p=32) of the contractor arising out of the contractor’s negligence in performing the contract or [agreement](/usc/42/1320b–8.md?p=a-3-A) with such party. Such indemnification [agreement](/usc/42/1320b–8.md?p=a-3-A) shall require such contractor to pay any deductible established under [subparagraph (B)](#c-5-B) before the contractor may recover any amount from the potentially responsible party or under the indemnification [agreement](/usc/42/1320b–8.md?p=a-3-A). - (D) **RCRA facilities—** No [owner or operator](/usc/42/9601.md?p=20-A) of a [facility](/usc/42/9601.md?p=9) regulated under the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6901](/usc/42/6901.md) et seq.] may be indemnified under this subsection with respect to such [facility](/usc/42/9601.md?p=9). - (E) **Persons retained or hired—** A [person](/usc/42/9601.md?p=21) retained or hired by a [person](/usc/42/9601.md?p=21) described in [subsection (e)(2)(B)](#e-2-B) shall be eligible for indemnification under this subsection only if the President specifically approves of the retaining or hiring of such [person](/usc/42/9601.md?p=21). - (6) **Cost recovery—** For purposes of [section 9607 of this title](/usc/42/9607.md), amounts expended pursuant to this subsection for indemnification of any [person](/usc/42/9601.md?p=21) who is a [response action contractor](#e-2) with respect to any [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) shall be considered a cost of [response](/usc/42/9601.md?p=25) incurred by the [United States](/usc/42/9601.md?p=27) Government with respect to such [release](/usc/42/9601.md?p=22). - (7) **Regulations—** The President shall promulgate regulations for carrying out the provisions of this subsection. Before promulgation of the regulations, the President shall develop guidelines to carry out this section. Development of such guidelines shall include reasonable opportunity for public comment. - (8) **Study—** The Comptroller General shall conduct a study in the fiscal year ending September 30, 1989, on the application of this subsection, including whether indemnification [agreements](/usc/42/1320b–8.md?p=a-3-A) under this subsection are being used, the number of [claims](/usc/42/9601.md?p=4) that have been filed under such [agreements](/usc/42/1320b–8.md?p=a-3-A), and the need for this subsection. The Comptroller General shall report the findings of the study to Congress no later than September 30, 1989. - (d) **Exception—** The exemption provided under [subsection (a)](#a) and the authority of the President to offer indemnification under [subsection (c)](#c) shall not apply to any [person](/usc/42/9601.md?p=21) covered by the provisions of paragraph (1), (2), (3), or (4) of [section 9607(a) of this title](/usc/42/9607.md?p=a) with respect to the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) concerned if such [person](/usc/42/9601.md?p=21) would be covered by such provisions even if such [person](/usc/42/9601.md?p=21) had not carried out any actions referred to in [subsection (e)](#e) of this section. - (e) **Definitions—** For purposes of this section— - (1) **Response action contract—** The term “response action contract” means any written contract or [agreement](/usc/42/1320b–8.md?p=a-3-A) entered into by a [response action contractor](#e-2) (as defined in paragraph (2)(A) of this subsection) with— - (A) the President; - (B) any Federal agency; - (C) a [State](/usc/42/9601.md?p=27) or political subdivision which has entered into a contract or cooperative [agreement](/usc/42/1320b–8.md?p=a-3-A) in accordance with [section 9604(d)(1) of this title](/usc/42/9604.md?p=d-1); or - (D) any potentially responsible party carrying out an [agreement](/usc/42/1320b–8.md?p=a-3-A) under section [9606](/usc/42/9606.md) or [9622](/usc/42/9622.md) of this title; to provide any [remedial action](/usc/42/9601.md?p=24) under this chapter at a [facility](/usc/42/9601.md?p=9) listed on the National Priorities List, or any [removal](/usc/42/9601.md?p=25) under this chapter, with respect to any [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) from the [facility](/usc/42/9601.md?p=9) or to provide any evaluation, planning, engineering, surveying and mapping, design, [construction](/usc/42/7479.md?p=2-C), equipment, or any ancillary services thereto for such [facility](/usc/42/9601.md?p=9). - (2) **Response action contractor—** The term “response action contractor” means— - (A) any— - (i) [person](/usc/42/9601.md?p=21) who enters into a [response action contract](#e-1) with respect to any [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) from a [facility](/usc/42/9601.md?p=9) and is carrying out such contract; and[^1] - (ii) [person](/usc/42/9601.md?p=21), public or nonprofit [private entity](/usc/42/12181.md?p=6), conducting a field demonstration pursuant to [section 9660(b) of this title](/usc/42/9660.md?p=b); and - (iii) [Recipients](/usc/42/2996a.md?p=6)[^2] of grants (including sub-grantees) under [section 9660a](/usc/42/9660a.md)[^3] of this title for the [training](/usc/42/285e–2.md?p=b-2) and education of workers who are or may be engaged in activities related to [hazardous waste](/usc/42/9601.md?p=29) [removal](/usc/42/9601.md?p=25), containment, or emergency [response](/usc/42/9601.md?p=25) under this chapter; and[^1] - (B) any [person](/usc/42/9601.md?p=21) who is retained or hired by a [person](/usc/42/9601.md?p=21) described in [subparagraph (A)](#e-2-A) to provide any services relating to a [response](/usc/42/9601.md?p=25) action; and - (C) any surety who after October 16, 1990, provides a bid, performance or payment bond to a [response action contractor](#e-2), and begins activities to meet its obligations under such bond, but only in connection with such activities or obligations. - (3) **Insurance—** The term “insurance” means [liability](/usc/42/9601.md?p=32) insurance which is fair and reasonably priced, as determined by the President, and which is made available at the time the contractor enters into the [response action contract](#e-1) to provide [response](/usc/42/9601.md?p=25) action. - (f) **Competition—** [Response action contractors](#e-2) and subcontractors for [program](/usc/42/274l–1.md?p=4) management, [construction](/usc/42/7479.md?p=2-C) management, architectural and engineering, surveying and mapping, and related services shall be selected in accordance with title IX of the Federal Property and Administrative Services Act of 1949.[^3] The Federal selection procedures shall apply to appropriate contracts negotiated by all Federal governmental agencies involved in carrying out this chapter. Such procedures shall be followed by [response action contractors](#e-2) and subcontractors. - (g) **Surety bonds—** - (1) If under sections [3131](/usc/40/3131.md) and [3133](/usc/40/3133.md) of title 40, surety bonds are required for any direct Federal procurement of any response action contract and are not waived pursuant to [section 3134 of title 40](/usc/40/3134.md), they shall be issued in accordance with sections [3131](/usc/40/3131.md) and [3133](/usc/40/3133.md) of title 40. - (2) If under applicable Federal law surety bonds are required for any direct Federal procurement of any response action contract, no right of action shall accrue on the performance bond issued on such response action contract to or for the use of any [person](/usc/42/9601.md?p=21) other than the obligee named in the bond. - (3) If under applicable Federal law surety bonds are required for any direct Federal procurement of any response action contract, unless otherwise provided for by the procuring agency in the bond, in the event of a default, the surety’s [liability](/usc/42/9601.md?p=32) on a performance bond shall be only for the cost of completion of the contract work in accordance with the plans and specifications less the balance of [funds](/usc/42/9601.md?p=11) remaining to be paid under the contract, up to the penal sum of the bond. The surety shall in no event be [liable](/usc/42/9601.md?p=32) on bonds to indemnify or compensate the obligee for loss or [liability](/usc/42/9601.md?p=32) arising from personal injury or property damage whether or not caused by a breach of the bonded contract. - (4) Nothing in this subsection shall be construed as preempting, limiting, superseding, affecting, applying to, or modifying any [State](/usc/42/9601.md?p=27) laws, regulations, requirements, rules, [practices](/usc/42/17061.md?p=19) or procedures. Nothing in this subsection shall be construed as affecting, applying to, modifying, limiting, superseding, or preempting any rights, authorities, [liabilities](/usc/42/9601.md?p=32), demands, actions, [causes](/usc/42/9908.md?p=c-2) of action, losses, judgments, [claims](/usc/42/9601.md?p=4), statutes of limitation, or obligations under Federal or [State](/usc/42/9601.md?p=27) law, which do not arise on or under the bond. - (5) This subsection shall not apply to bonds executed before October 17, 1990. # §9620. Federal facilities - (a) **Application of chapter to Federal Government—** - (1) **In general—** Each department, agency, and instrumentality of the [United States](/usc/42/9601.md?p=27) (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including [liability](/usc/42/9601.md?p=32) under [section 9607 of this title](/usc/42/9607.md). Nothing in this section shall be construed to affect the [liability](/usc/42/9601.md?p=32) of any [person](/usc/42/9601.md?p=21) or entity under sections [9606](/usc/42/9606.md) and [9607](/usc/42/9607.md) of this title. - (2) **Application of requirements to Federal facilities—** All guidelines, rules, regulations, and criteria which are applicable to preliminary assessments carried out under this chapter for [facilities](/usc/42/9601.md?p=9) at which [hazardous substances](/usc/42/1397h.md?p=c-4) are located, applicable to evaluations of such [facilities](/usc/42/9601.md?p=9) under the [National Contingency Plan](/usc/42/9601.md?p=31), applicable to inclusion on the National Priorities List, or applicable to [remedial actions](/usc/42/9601.md?p=24) at such [facilities](/usc/42/9601.md?p=9) shall also be applicable to [facilities](/usc/42/9601.md?p=9) which are owned or operated by a department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27) in the same manner and to the extent as such guidelines, rules, regulations, and criteria are applicable to other [facilities](/usc/42/9601.md?p=9). No department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27) may adopt or utilize any such guidelines, rules, regulations, or criteria which are inconsistent with the guidelines, rules, regulations, and criteria established by the [Administrator](/usc/42/9601.md?p=2) under this chapter. - (3) **Exceptions—** This subsection shall not apply to the extent otherwise provided in this section with respect to applicable time periods. This subsection shall also not apply to any requirements relating to bonding, insurance, or financial responsibility. Nothing in this chapter shall be construed to require a [State](/usc/42/9601.md?p=27) to comply with [section 9604(c)(3) of this title](/usc/42/9604.md?p=c-3) in the case of a [facility](/usc/42/9601.md?p=9) which is owned or operated by any department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27). - (4) **State laws—** [State](/usc/42/9601.md?p=27) laws concerning [removal](/usc/42/9601.md?p=25) and [remedial action](/usc/42/9601.md?p=24), including [State](/usc/42/9601.md?p=27) laws regarding enforcement, shall apply to [removal](/usc/42/9601.md?p=25) and [remedial action](/usc/42/9601.md?p=24) at [facilities](/usc/42/9601.md?p=9) owned or operated by a department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27) or [facilities](/usc/42/9601.md?p=9) that are the subject of a deferral under [subsection (h)(3)(C)](#h-3-C) when such [facilities](/usc/42/9601.md?p=9) are not included on the National Priorities List. The preceding sentence shall not apply to the extent a [State](/usc/42/9601.md?p=27) law would apply any [standard](/usc/42/1320d.md?p=7) or requirement to such [facilities](/usc/42/9601.md?p=9) which is more stringent than the [standards](/usc/42/1320d.md?p=7) and requirements applicable to [facilities](/usc/42/9601.md?p=9) which are not owned or operated by any such department, agency, or instrumentality. - (b) **Notice—** Each department, agency, and instrumentality of the [United States](/usc/42/9601.md?p=27) shall add to the [inventory](/usc/42/4370m.md?p=14) of Federal agency [hazardous waste](/usc/42/9601.md?p=29) [facilities](/usc/42/9601.md?p=9) required to be submitted under section 3016 of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6937](/usc/42/6937.md)] (in addition to the information required under [section 3016(a)(3)](/usc/42/3016.md) of such Act [[42 U.S.C. 6937(a)(3)](/usc/42/6937.md?p=a-3)]) information on contamination from each [facility](/usc/42/9601.md?p=9) owned or operated by the department, agency, or instrumentality if such contamination affects contiguous or adjacent property owned by the department, agency, or instrumentality or by any other [person](/usc/42/9601.md?p=21), including a description of the monitoring data obtained. - (c) **Federal Agency Hazardous Waste Compliance Docket—** The [Administrator](/usc/42/9601.md?p=2) shall establish a special Federal Agency [Hazardous Waste](/usc/42/9601.md?p=29) Compliance Docket (hereinafter in this section referred to as the “docket”) which shall contain each of the following: - (1) All information submitted under section 3016 of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6937](/usc/42/6937.md)] and [subsection (b)](#b) of this section regarding any [Federal facility](/usc/42/17061.md?p=8) and notice of each subsequent action taken under this chapter with respect to the [facility](/usc/42/9601.md?p=9). - (2) Information submitted by each department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27) under section 3005 or 3010 of such Act [[42 U.S.C. 6925](/usc/42/6925.md), 6930]. - (3) Information submitted by the department, agency, or instrumentality under [section 9603 of this title](/usc/42/9603.md). The docket shall be available for public [inspection](/usc/42/4851b.md?p=12) at reasonable times. Six months after establishment of the docket and every 6 months thereafter, the [Administrator](/usc/42/9601.md?p=2) shall publish in the Federal Register a list of the [Federal facilities](/usc/42/17061.md?p=8) which have been included in the docket during the immediately preceding 6-month period. Such publication shall also indicate where in the appropriate regional [office](/usc/42/3058f.md?p=1) of the Environmental Protection Agency additional information may be obtained with respect to any [facility](/usc/42/9601.md?p=9) on the docket. The [Administrator](/usc/42/9601.md?p=2) shall establish a [program](/usc/42/274l–1.md?p=4) to provide information to the public with respect to [facilities](/usc/42/9601.md?p=9) which are included in the docket under this subsection. - (d) **Assessment and evaluation—** - (1) **In general—** The [Administrator](/usc/42/9601.md?p=2) shall take steps to assure that a preliminary assessment is conducted for each [facility](/usc/42/9601.md?p=9) on the docket. Following such preliminary assessment, the [Administrator](/usc/42/9601.md?p=2) shall, where appropriate— - (A) evaluate such [facilities](/usc/42/9601.md?p=9) in accordance with the criteria established in accordance with [section 9605 of this title](/usc/42/9605.md) under the [National Contingency Plan](/usc/42/9601.md?p=31) for determining priorities among [releases](/usc/42/9601.md?p=22); and - (B) include such [facilities](/usc/42/9601.md?p=9) on the National Priorities List maintained under such plan if the [facility](/usc/42/9601.md?p=9) meets such criteria. - (2) **Application of criteria—** - (A) **In general—** Subject to [subparagraph (B)](#d-2-B), the criteria referred to in [paragraph (1)](#d-1) shall be applied in the same manner as the criteria are applied to [facilities](/usc/42/9601.md?p=9) that are owned or operated by [persons](/usc/42/9601.md?p=21) other than the [United States](/usc/42/9601.md?p=27). - (B) **Response under other law—** It shall be an appropriate factor to be taken into consideration for the purposes of [section 9605(a)(8)(A) of this title](/usc/42/9605.md?p=a-8-A) that the head of the department, agency, or instrumentality that owns or operates a [facility](/usc/42/9601.md?p=9) has arranged with the [Administrator](/usc/42/9601.md?p=2) or appropriate [State authorities](/usc/42/6903.md?p=32) to [respond](/usc/42/9601.md?p=25) appropriately, under authority of a law other than this chapter, to a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4). - (3) **Completion—** Evaluation and listing under this subsection shall be completed in accordance with a reasonable schedule established by the [Administrator](/usc/42/9601.md?p=2). - (e) **Required action by department—** - (1) **RI/FS—** Not later than 6 months after the inclusion of any [facility](/usc/42/9601.md?p=9) on the National Priorities List, the department, agency, or instrumentality which owns or operates such [facility](/usc/42/9601.md?p=9) shall, in consultation with the [Administrator](/usc/42/9601.md?p=2) and appropriate [State authorities](/usc/42/6903.md?p=32), commence a remedial investigation and feasibility study for such [facility](/usc/42/9601.md?p=9). In the case of any [facility](/usc/42/9601.md?p=9) which is listed on such list before October 17, 1986, the department, agency, or instrumentality which owns or operates such [facility](/usc/42/9601.md?p=9) shall, in consultation with the [Administrator](/usc/42/9601.md?p=2) and appropriate [State authorities](/usc/42/6903.md?p=32), commence such an investigation and study for such [facility](/usc/42/9601.md?p=9) within one year after October 17, 1986. The [Administrator](/usc/42/9601.md?p=2) and appropriate [State authorities](/usc/42/6903.md?p=32) shall publish a timetable and deadlines for expeditious completion of such investigation and study. - (2) **Commencement of remedial action; interagency agreement—** The [Administrator](/usc/42/9601.md?p=2) shall review the results of each investigation and study conducted as provided in [paragraph (1)](#e-1). Within 180 days thereafter, the head of the department, agency, or instrumentality concerned shall enter into an interagency [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [Administrator](/usc/42/9601.md?p=2) for the expeditious completion by such department, agency, or instrumentality of all necessary [remedial action](/usc/42/9601.md?p=24) at such [facility](/usc/42/9601.md?p=9). Substantial continuous physical onsite [remedial action](/usc/42/9601.md?p=24) shall be commenced at each [facility](/usc/42/9601.md?p=9) not later than 15 months after completion of the investigation and study. All such interagency [agreements](/usc/42/1320b–8.md?p=a-3-A), including review of alternative [remedial action](/usc/42/9601.md?p=24) plans and selection of [remedial action](/usc/42/9601.md?p=24), shall comply with the public participation requirements of [section 9617 of this title](/usc/42/9617.md). - (3) **Completion of remedial actions—** [Remedial actions](/usc/42/9601.md?p=24) at [facilities](/usc/42/9601.md?p=9) subject to interagency [agreements](/usc/42/1320b–8.md?p=a-3-A) under this section shall be completed as expeditiously as practicable. Each agency shall include in its annual budget submissions to the Congress a review of alternative agency funding which could be used to provide for the costs of [remedial action](/usc/42/9601.md?p=24). The budget submission shall also include a statement of the [hazard](/usc/42/5165f.md?p=a-3) posed by the [facility](/usc/42/9601.md?p=9) to human health, welfare, and the [environment](/usc/42/9601.md?p=8) and identify the specific consequences of failure to begin and complete [remedial action](/usc/42/9601.md?p=24). - (4) **Contents of agreement—** Each interagency [agreement](/usc/42/1320b–8.md?p=a-3-A) under this subsection shall include, but shall not be limited to, each of the following: - (A) A review of alternative [remedial actions](/usc/42/9601.md?p=24) and selection of a [remedial action](/usc/42/9601.md?p=24) by the head of the relevant department, agency, or instrumentality and the [Administrator](/usc/42/9601.md?p=2) or, if unable to reach [agreement](/usc/42/1320b–8.md?p=a-3-A) on selection of a [remedial action](/usc/42/9601.md?p=24), selection by the [Administrator](/usc/42/9601.md?p=2). - (B) A schedule for the completion of each such [remedial action](/usc/42/9601.md?p=24). - (C) Arrangements for long-term operation and maintenance of the [facility](/usc/42/9601.md?p=9). - (5) **Annual report—** Each department, agency, or instrumentality responsible for compliance with this section shall furnish an annual report to the Congress concerning its progress in implementing the requirements of this section. Such reports shall include, but shall not be limited to, each of the following items: - (A) A report on the progress in reaching interagency [agreements](/usc/42/1320b–8.md?p=a-3-A) under this section. - (B) The specific cost estimates and budgetary proposals involved in each interagency [agreement](/usc/42/1320b–8.md?p=a-3-A). - (C) A brief summary of the public comments regarding each proposed interagency [agreement](/usc/42/1320b–8.md?p=a-3-A). - (D) A description of the instances in which no [agreement](/usc/42/1320b–8.md?p=a-3-A) was reached. - (E) A report on progress in conducting investigations and studies under [paragraph (1)](#e-1). - (F) A report on progress in conducting [remedial actions](/usc/42/9601.md?p=24). - (G) A report on progress in conducting [remedial action](/usc/42/9601.md?p=24) at [facilities](/usc/42/9601.md?p=9) which are not listed on the National Priorities List. With respect to instances in which no [agreement](/usc/42/1320b–8.md?p=a-3-A) was reached within the required time period, the department, agency, or instrumentality filing the report under this paragraph shall include in such report an explanation of the reasons why no [agreement](/usc/42/1320b–8.md?p=a-3-A) was reached. The annual report required by this paragraph shall also contain a detailed description on a [State](/usc/42/9601.md?p=27)-by-[State](/usc/42/9601.md?p=27) basis of the status of each [facility](/usc/42/9601.md?p=9) subject to this section, including a description of the [hazard](/usc/42/5165f.md?p=a-3) presented by each [facility](/usc/42/9601.md?p=9), plans and schedules for initiating and completing [response](/usc/42/9601.md?p=25) action, enforcement status (where appropriate), and an explanation of any postponements or failure to complete [response](/usc/42/9601.md?p=25) action. Such reports shall also be submitted to the affected [States](/usc/42/9601.md?p=27). - (6) **Settlements with other parties—** If the [Administrator](/usc/42/9601.md?p=2), in consultation with the head of the relevant department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27), determines that remedial investigations and feasibility studies or [remedial action](/usc/42/9601.md?p=24) will be done properly at the [Federal facility](/usc/42/17061.md?p=8) by another potentially responsible party within the deadlines provided in paragraphs (1), (2), and (3) of this subsection, the [Administrator](/usc/42/9601.md?p=2) may enter into an [agreement](/usc/42/1320b–8.md?p=a-3-A) with such party under [section 9622 of this title](/usc/42/9622.md) (relating to settlements). Following approval by the [Attorney General](/usc/42/14902.md?p=6) of any such [agreement](/usc/42/1320b–8.md?p=a-3-A) relating to a [remedial action](/usc/42/9601.md?p=24), the [agreement](/usc/42/1320b–8.md?p=a-3-A) shall be entered in the appropriate [United States](/usc/42/9601.md?p=27) district court as a consent decree under [section 9606 of this title](/usc/42/9606.md). - (f) **State and local participation—** The [Administrator](/usc/42/9601.md?p=2) and each department, agency, or instrumentality responsible for compliance with this section shall afford to relevant [State](/usc/42/9601.md?p=27) and local officials the opportunity to participate in the planning and selection of the [remedial action](/usc/42/9601.md?p=24), including but not limited to the review of all applicable data as it becomes available and the development of studies, reports, and action plans. In the case of [State](/usc/42/9601.md?p=27) officials, the opportunity to participate shall be provided in accordance with [section 9621 of this title](/usc/42/9621.md). - (g) **Transfer of authorities—** Except for authorities which are delegated by the [Administrator](/usc/42/9601.md?p=2) to an officer or [employee](/usc/42/1320a–7h.md?p=e-7) of the Environmental Protection Agency, no authority vested in the [Administrator](/usc/42/9601.md?p=2) under this section may be transferred, by executive order of the President or otherwise, to any other officer or [employee](/usc/42/1320a–7h.md?p=e-7) of the [United States](/usc/42/9601.md?p=27) or to any other [person](/usc/42/9601.md?p=21). - (h) **Property transferred by Federal agencies—** - (1) **Notice—** After the last day of the 6-month period beginning on the effective date of regulations under paragraph (2) of this subsection, whenever any department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27) enters into any contract for the sale or other transfer of real property which is owned by the [United States](/usc/42/9601.md?p=27) and on which any [hazardous substance](/usc/42/1397h.md?p=c-4) was stored for one year or more, known to have been released, or disposed of, the head of such department, agency, or instrumentality shall include in such contract notice of the type and quantity of such [hazardous substance](/usc/42/1397h.md?p=c-4) and notice of the time at which such storage, [release](/usc/42/9601.md?p=22), or [disposal](/usc/42/9601.md?p=29) took place, to the extent such information is available on the basis of a complete search of agency files. - (2) **Form of notice; regulations—** Notice under this subsection shall be provided in such form and manner as may be provided in regulations promulgated by the [Administrator](/usc/42/9601.md?p=2). As promptly as practicable after October 17, 1986, but not later than 18 months after October 17, 1986, and after consultation with the [Administrator](/usc/42/9601.md?p=2) of the General Services Administration, the [Administrator](/usc/42/9601.md?p=2) shall promulgate regulations regarding the notice required to be provided under this subsection. - (3) **Contents of certain deeds—** - (A) **In general—** After the last day of the 6-month period beginning on the effective date of regulations under paragraph (2) of this subsection, in the case of any real property owned by the [United States](/usc/42/9601.md?p=27) on which any [hazardous substance](/usc/42/1397h.md?p=c-4) was stored for one year or more, known to have been released, or disposed of, each deed entered into for the transfer of such property by the [United States](/usc/42/9601.md?p=27) to any other [person](/usc/42/9601.md?p=21) or entity shall contain— - (i) to the extent such information is available on the basis of a complete search of agency files— - (I) a notice of the type and quantity of such [hazardous substances](/usc/42/1397h.md?p=c-4), - (II) notice of the time at which such storage, [release](/usc/42/9601.md?p=22), or [disposal](/usc/42/9601.md?p=29) took place, and - (III) a description of the [remedial action](/usc/42/9601.md?p=24) taken, if any; - (ii) a covenant warranting that— - (I) all [remedial action](/usc/42/9601.md?p=24) necessary to protect human health and the [environment](/usc/42/9601.md?p=8) with respect to any such substance remaining on the property has been taken before the date of such transfer, and - (II) any additional [remedial action](/usc/42/9601.md?p=24) found to be necessary after the date of such transfer shall be conducted by the [United States](/usc/42/9601.md?p=27); and - (iii) a clause granting the [United States](/usc/42/9601.md?p=27) access to the property in any case in which [remedial action](/usc/42/9601.md?p=24) or corrective action is found to be necessary after the date of such transfer. - (B) **Covenant requirements—** For purposes of subparagraphs [(A)(ii)(I)](#h-3-A-ii-I) and (C)(iii), all [remedial action](/usc/42/9601.md?p=24) described in such subparagraph has been taken if the [construction](/usc/42/7479.md?p=2-C) and installation of an approved remedial design has been completed, and the [remedy](/usc/42/9601.md?p=24) has been demonstrated to the [Administrator](/usc/42/9601.md?p=2) to be operating properly and successfully. The carrying out of long-term pumping and treating, or operation and maintenance, after the [remedy](/usc/42/9601.md?p=24) has been demonstrated to the [Administrator](/usc/42/9601.md?p=2) to be operating properly and successfully does not preclude the transfer of the property. The requirements of [subparagraph (A)(ii)](#h-3-A-ii) shall not apply in any case in which the [person](/usc/42/9601.md?p=21) or entity to whom the real property is transferred is a potentially responsible party with respect to such property. The requirements of [subparagraph (A)(ii)](#h-3-A-ii) shall not apply in any case in which the transfer of the property occurs or has occurred by means of a lease, without regard to whether the lessee has agreed to purchase the property or whether the duration of the lease is longer than 55 years. In the case of a lease entered into after September 30, 1995, with respect to real property located at an installation approved for closure or realignment under a base closure law, the agency leasing the property, in consultation with the [Administrator](/usc/42/9601.md?p=2), shall determine before leasing the property that the property is suitable for lease, that the uses contemplated for the lease are consistent with protection of human health and the [environment](/usc/42/9601.md?p=8), and that there are adequate assurances that the [United States](/usc/42/9601.md?p=27) will take all [remedial action](/usc/42/9601.md?p=24) referred to in [subparagraph (A)(ii)](#h-3-A-ii) that has not been taken on the date of the lease. - (C) **Deferral—** - (i) **In general—** The [Administrator](/usc/42/9601.md?p=2), with the concurrence of the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/9601.md?p=27) in which the [facility](/usc/42/9601.md?p=9) is located (in the case of real property at a [Federal facility](/usc/42/17061.md?p=8) that is listed on the National Priorities List), or the [Governor](/usc/42/6372.md?p=1) of the [State](/usc/42/9601.md?p=27) in which the [facility](/usc/42/9601.md?p=9) is located (in the case of real property at a [Federal facility](/usc/42/17061.md?p=8) not listed on the National Priorities List) may defer the requirement of [subparagraph (A)(ii)(I)](#h-3-A-ii-I) with respect to the property if the [Administrator](/usc/42/9601.md?p=2) or the [Governor](/usc/42/6372.md?p=1), as the case may be, determines that the property is suitable for transfer, based on a finding that— - (I) the property is suitable for transfer for the use intended by the transferee, and the intended use is consistent with protection of human health and the [environment](/usc/42/9601.md?p=8); - (II) the deed or other [agreement](/usc/42/1320b–8.md?p=a-3-A) proposed to govern the transfer between the [United States](/usc/42/9601.md?p=27) and the transferee of the property contains the assurances set forth in [clause (ii)](#h-3-C-ii); - (III) the Federal agency requesting deferral has provided notice, by publication in a newspaper of general circulation in the vicinity of the property, of the proposed transfer and of the opportunity for the public to submit, within a period of not less than 30 days after the date of the notice, written comments on the suitability of the property for transfer; and - (IV) the deferral and the transfer of the property will not substantially delay any necessary [response](/usc/42/9601.md?p=25) action at the property. - (ii) **Response action assurances—** With regard to a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) for which a Federal agency is potentially responsible under this section, the deed or other [agreement](/usc/42/1320b–8.md?p=a-3-A) proposed to govern the transfer shall contain assurances that— - (I) provide for any necessary restrictions on the use of the property to ensure the protection of human health and the [environment](/usc/42/9601.md?p=8); - (II) provide that there will be restrictions on use necessary to ensure that required remedial investigations, [response](/usc/42/9601.md?p=25) action, and oversight activities will not be disrupted; - (III) provide that all necessary [response](/usc/42/9601.md?p=25) action will be taken and identify the schedules for investigation and completion of all necessary [response](/usc/42/9601.md?p=25) action as approved by the appropriate regulatory agency; and - (IV) provide that the Federal agency responsible for the property subject to transfer will submit a budget request to the [Director](/usc/42/5061.md?p=1) of the [Office](/usc/42/3058f.md?p=1) of Management and Budget that adequately addresses schedules for investigation and completion of all necessary [response](/usc/42/9601.md?p=25) action, subject to congressional [authorizations](/usc/42/4370m.md?p=3) and appropriations. - (iii) **Warranty—** When all [response](/usc/42/9601.md?p=25) action necessary to protect human health and the [environment](/usc/42/9601.md?p=8) with respect to any substance remaining on the property on the date of transfer has been taken, the [United States](/usc/42/9601.md?p=27) shall execute and deliver to the transferee an appropriate document containing a warranty that all such [response](/usc/42/9601.md?p=25) action has been taken, and the making of the warranty shall be considered to satisfy the requirement of [subparagraph (A)(ii)(I)](#h-3-A-ii-I). - (iv) **Federal responsibility—** A deferral under this subparagraph shall not increase, diminish, or affect in any manner any rights or obligations of a Federal agency (including any rights or obligations under this section and sections [9606](/usc/42/9606.md) and [9607](/usc/42/9607.md) of this title existing prior to transfer) with respect to a property transferred under this subparagraph. - (4) **Identification of uncontaminated property—** - (A) In the case of real property to which this paragraph applies (as set forth in [subparagraph (E)](#h-4-E)), the head of the department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27) with jurisdiction over the property shall identify the real property on which no [hazardous substances](/usc/42/1397h.md?p=c-4) and no petroleum products or their derivatives were known to have been released or disposed of. Such identification shall be based on an investigation of the real property to determine or discover the obviousness of the presence or likely presence of a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of any [hazardous substance](/usc/42/1397h.md?p=c-4) or any petroleum product or its derivatives, including aviation fuel and motor oil, on the real property. The identification shall consist, at a minimum, of a review of each of the following sources of information concerning the current and previous uses of the real property: - (i) A detailed search of Federal Government records pertaining to the property. - (ii) Recorded chain of title documents regarding the real property. - (iii) Aerial photographs that may reflect prior uses of the real property and that are reasonably obtainable through [State](/usc/42/9601.md?p=27) or [local government](/usc/42/8401a.md) agencies. - (iv) A visual [inspection](/usc/42/4851b.md?p=12) of the real property and any [buildings](/usc/42/6881.md?p=i-3), structures, equipment, pipe, pipeline, or other improvements on the real property, and a visual [inspection](/usc/42/4851b.md?p=12) of properties immediately adjacent to the real property. - (v) A physical [inspection](/usc/42/4851b.md?p=12) of property adjacent to the real property, to the extent permitted by [owners](/usc/42/13641.md?p=4) or operators of such property. - (vi) Reasonably obtainable Federal, [State](/usc/42/9601.md?p=27), and [local government](/usc/42/8401a.md) records of each adjacent [facility](/usc/42/9601.md?p=9) where there has been a [release](/usc/42/9601.md?p=22) of any [hazardous substance](/usc/42/1397h.md?p=c-4) or any petroleum product or its derivatives, including aviation fuel and motor oil, and which is likely to [cause](/usc/42/9908.md?p=c-2) or contribute to a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of any [hazardous substance](/usc/42/1397h.md?p=c-4) or any petroleum product or its derivatives, including aviation fuel and motor oil, on the real property. - (vii) Interviews with current or former [employees](/usc/42/1320a–7h.md?p=e-7) involved in operations on the real property. Such identification shall also be based on sampling, if appropriate under the circumstances. The results of the identification shall be provided immediately to the [Administrator](/usc/42/9601.md?p=2) and [State](/usc/42/9601.md?p=27) and [local government](/usc/42/8401a.md) officials and made available to the public. - (B) The identification required under [subparagraph (A)](#h-4-A) is not complete until concurrence in the results of the identification is obtained, in the case of real property that is part of a [facility](/usc/42/9601.md?p=9) on the National Priorities List, from the [Administrator](/usc/42/9601.md?p=2), or, in the case of real property that is not part of a [facility](/usc/42/9601.md?p=9) on the National Priorities List, from the appropriate [State](/usc/42/9601.md?p=27) official. In the case of a concurrence which is required from a [State](/usc/42/9601.md?p=27) official, the concurrence is deemed to be obtained if, within 90 days after receiving a request for the concurrence, the [State](/usc/42/9601.md?p=27) official has not acted (by either concurring or declining to concur) on the request for concurrence. - (C) - (i) Except as provided in clauses [(ii)](#h-4-C-ii), [(iii)](#h-4-C-iii), and [(iv)](#h-4-C-iv), the identification and concurrence required under subparagraphs [(A)](#h-4-A) and [(B)](#h-4-B), respectively, shall be made at least 6 months before the termination of operations on the real property. - (ii) In the case of real property described in [subparagraph (E)(i)(II)](#h-4-E-i-II) on which operations have been closed or realigned or scheduled for closure or realignment pursuant to a [base closure law](#h-4-E-ii) described in subparagraph [(E)(ii)(I)](#h-4-E-ii-I) or [(E)(ii)(II)](#h-4-E-ii-II) by October 19, 1992, the identification and concurrence required under subparagraphs [(A)](#h-4-A) and [(B)](#h-4-B), respectively, shall be made not later than 18 months after October 19, 1992. - (iii) In the case of real property described in [subparagraph (E)(i)(II)](#h-4-E-i-II) on which operations are closed or realigned or become scheduled for closure or realignment pursuant to the [base closure law](#h-4-E-ii) described in [subparagraph (E)(ii)(II)](#h-4-E-ii-II) after October 19, 1992, the identification and concurrence required under subparagraphs [(A)](#h-4-A) and [(B)](#h-4-B), respectively, shall be made not later than 18 months after the date by which a joint resolution disapproving the closure or realignment of the real property under section 2904(b) of such [base closure law](#h-4-E-ii) must be enacted, and such a joint resolution has not been enacted. - (iv) In the case of real property described in [subparagraphs (E)(i)(II)](#h-4-E-i-II) on which operations are closed or realigned pursuant to a [base closure law](#h-4-E-ii) described in subparagraph [(E)(ii)(III)](#h-4-E-ii-III) or [(E)(ii)(IV)](#h-4-E-ii-IV), the identification and concurrence required under subparagraphs [(A)](#h-4-A) and [(B)](#h-4-B), respectively, shall be made not later than 18 months after the date on which the real property is selected for closure or realignment pursuant to such a [base closure law](#h-4-E-ii). - (D) In the case of the sale or other transfer of any parcel of real property identified under [subparagraph (A)](#h-4-A), the deed entered into for the sale or transfer of such property by the [United States](/usc/42/9601.md?p=27) to any other [person](/usc/42/9601.md?p=21) or entity shall contain— - (i) a covenant warranting that any [response](/usc/42/9601.md?p=25) action or corrective action found to be necessary after the date of such sale or transfer shall be conducted by the [United States](/usc/42/9601.md?p=27); and - (ii) a clause granting the [United States](/usc/42/9601.md?p=27) access to the property in any case in which a [response](/usc/42/9601.md?p=25) action or corrective action is found to be necessary after such date at such property, or such access is necessary to carry out a [response](/usc/42/9601.md?p=25) action or corrective action on adjoining property. - (E) - (i) This paragraph applies to— - (I) real property owned by the [United States](/usc/42/9601.md?p=27) and on which the [United States](/usc/42/9601.md?p=27) plans to terminate Federal Government operations, other than real property described in [subclause (II)](#h-4-E-i-II); and - (II) real property that is or has been used as a military installation and on which the [United States](/usc/42/9601.md?p=27) plans to close or realign military operations pursuant to a [base closure law](#h-4-E-ii). - (ii) For purposes of this paragraph, the term “base closure law” includes the following: - (I) Title II of the Defense [Authorization](/usc/42/4370m.md?p=3) Amendments and Base Closure and Realignment Act (Public Law 100–526; [10 U.S.C. 2687](/usc/10/2687.md) note). - (II) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; [10 U.S.C. 2687](/usc/10/2687.md) note). - (III) [Section 2687 of title 10](/usc/10/2687.md). - (IV) Any provision of law authorizing the closure or realignment of a military installation enacted on or after October 19, 1992. - (F) Nothing in this paragraph shall affect, preclude, or otherwise impair the termination of Federal Government operations on real property owned by the [United States](/usc/42/9601.md?p=27). - (5) **Notification of States regarding certain leases—** In the case of real property owned by the [United States](/usc/42/9601.md?p=27), on which any [hazardous substance](/usc/42/1397h.md?p=c-4) or any petroleum product or its derivatives (including aviation fuel and motor oil) was stored for one year or more, known to have been released, or disposed of, and on which the [United States](/usc/42/9601.md?p=27) plans to terminate Federal Government operations, the head of the department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27) with jurisdiction over the property shall notify the [State](/usc/42/9601.md?p=27) in which the property is located of any lease entered into by the [United States](/usc/42/9601.md?p=27) that will encumber the property beyond the date of termination of operations on the property. Such notification shall be made before entering into the lease and shall include the length of the lease, the name of [person](/usc/42/9601.md?p=21) to whom the property is leased, and a description of the uses that will be allowed under the lease of the property and [buildings](/usc/42/6881.md?p=i-3) and other structures on the property. - (i) **Obligations under Solid Waste Disposal Act—** Nothing in this section shall affect or impair the obligation of any department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27) to comply with any requirement of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6901](/usc/42/6901.md) et seq.] (including corrective action requirements). - (j) **National security—** - (1) **Site specific Presidential orders—** The President may issue such orders regarding [response](/usc/42/9601.md?p=25) actions at any specified site or [facility](/usc/42/9601.md?p=9) of the Department of [Energy](/usc/42/6311.md?p=7) or the Department of Defense as may be necessary to protect the national [security interests](/usc/42/9601.md?p=20-H-vi) of the [United States](/usc/42/9601.md?p=27) at that site or [facility](/usc/42/9601.md?p=9). Such orders may include, where necessary to protect such interests, an exemption from any requirement contained in this subchapter or under title III of the Superfund Amendments and Reauthorization Act of 1986 [[42 U.S.C. 11001](/usc/42/11001.md) et seq.] with respect to the site or [facility](/usc/42/9601.md?p=9) concerned. The President shall notify the Congress within 30 days of the issuance of an order under this paragraph providing for any such exemption. Such notification shall include a statement of the reasons for the granting of the exemption. An exemption under this paragraph shall be for a specified period which may not exceed one year. Additional exemptions may be granted, each upon the President’s issuance of a new order under this paragraph for the site or [facility](/usc/42/9601.md?p=9) concerned. Each such additional exemption shall be for a specified period which may not exceed one year. It is the intention of the Congress that whenever an exemption is issued under this paragraph the [response](/usc/42/9601.md?p=25) action shall proceed as expeditiously as practicable. The Congress shall be notified periodically of the progress of any [response](/usc/42/9601.md?p=25) action with respect to which an exemption has been issued under this paragraph. No exemption shall be granted under this paragraph due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. - (2) **Classified information—** Notwithstanding any other provision of law, all requirements of the Atomic Energy Act [[42 U.S.C. 2011](/usc/42/2011.md) et seq.] and all Executive orders concerning the handling of [restricted data](/usc/42/2014.md?p=y) and national security information, including “need to know” requirements, shall be applicable to any grant of access to classified information under the provisions of this chapter or under title III of the Superfund Amendments and Reauthorization Act of 1986 [[42 U.S.C. 11001](/usc/42/11001.md) et seq.]. # §9621. Cleanup standards - (a) **Selection of remedial action—** The President shall select appropriate [remedial actions](/usc/42/9601.md?p=24) determined to be necessary to be carried out under [section 9604 of this title](/usc/42/9604.md) or secured under [section 9606 of this title](/usc/42/9606.md) which are in accordance with this section and, to the extent practicable, the [national contingency plan](/usc/42/9601.md?p=31), and which provide for [cost-effective](/usc/42/1396e.md?p=e-2) [response](/usc/42/9601.md?p=25). In evaluating the cost effectiveness of proposed alternative [remedial actions](/usc/42/9601.md?p=24), the President shall take into account the total short- and long-term costs of such actions, including the costs of operation and maintenance for the entire period during which such activities will be required. - (b) **General rules—** - (1) [Remedial actions](/usc/42/9601.md?p=24) in which [treatment](/usc/42/9601.md?p=29) which permanently and significantly reduces the volume, toxicity or mobility of the [hazardous substances](/usc/42/1397h.md?p=c-4), [pollutants](/usc/42/1397h.md?p=c-4), and [contaminants](/usc/42/1397h.md?p=c-4) is a principal element, are to be preferred over [remedial actions](/usc/42/9601.md?p=24) not involving such [treatment](/usc/42/9601.md?p=29). The offsite [transport](/usc/42/9601.md?p=26) and [disposal](/usc/42/9601.md?p=29) of [hazardous substances](/usc/42/1397h.md?p=c-4) or contaminated materials without such [treatment](/usc/42/9601.md?p=29) should be the least favored alternative [remedial action](/usc/42/9601.md?p=24) where practicable [treatment](/usc/42/9601.md?p=29) technologies are available. The President shall conduct an assessment of permanent solutions and alternative [treatment](/usc/42/9601.md?p=29) technologies or resource recovery technologies that, in whole or in part, will result in a permanent and significant decrease in the toxicity, mobility, or volume of the [hazardous substance](/usc/42/1397h.md?p=c-4), [pollutant](/usc/42/1397h.md?p=c-4), or [contaminant](/usc/42/1397h.md?p=c-4). In making such assessment, the President shall specifically address the long-term effectiveness of various alternatives. In assessing alternative [remedial actions](/usc/42/9601.md?p=24), the President shall, at a minimum, take into account: - (A) the long-term uncertainties associated with land [disposal](/usc/42/9601.md?p=29); - (B) the goals, objectives, and requirements of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6901](/usc/42/6901.md) et seq.]; - (C) the persistence, toxicity, mobility, and propensity to bioaccumulate of such [hazardous substances](/usc/42/1397h.md?p=c-4) and their constituents; - (D) short- and long-term potential for adverse health effects from human exposure; - (E) long-term maintenance costs; - (F) the potential for future [remedial action](/usc/42/9601.md?p=24) costs if the alternative [remedial action](/usc/42/9601.md?p=24) in question were to fail; and - (G) the potential threat to human health and the [environment](/usc/42/9601.md?p=8) associated with excavation, [transportation](/usc/42/9601.md?p=26), and redisposal, or containment. The President shall select a [remedial action](/usc/42/9601.md?p=24) that is protective of human health and the [environment](/usc/42/9601.md?p=8), that is cost effective, and that utilizes permanent solutions and alternative [treatment](/usc/42/9601.md?p=29) technologies or resource recovery technologies to the maximum extent practicable. If the President selects a [remedial action](/usc/42/9601.md?p=24) not appropriate for a preference under this subsection, the President shall publish an explanation as to why a [remedial action](/usc/42/9601.md?p=24) involving such reductions was not selected. - (2) The President may select an alternative [remedial action](/usc/42/9601.md?p=24) meeting the objectives of this subsection whether or not such action has been achieved in practice at any other [facility](/usc/42/9601.md?p=9) or site that has similar characteristics. In making such a selection, the President may take into account the degree of support for such [remedial action](/usc/42/9601.md?p=24) by parties interested in such site. - (c) **Review—** If the President selects a [remedial action](/usc/42/9601.md?p=24) that results in any [hazardous substances](/usc/42/1397h.md?p=c-4), [pollutants](/usc/42/1397h.md?p=c-4), or [contaminants](/usc/42/1397h.md?p=c-4) remaining at the site, the President shall review such [remedial action](/usc/42/9601.md?p=24) no less often than each 5 years after the initiation of such [remedial action](/usc/42/9601.md?p=24) to assure that human health and the [environment](/usc/42/9601.md?p=8) are being protected by the [remedial action](/usc/42/9601.md?p=24) being implemented. In addition, if upon such review it is the judgment of the President that action is appropriate at such site in accordance with section [9604](/usc/42/9604.md) or [9606](/usc/42/9606.md) of this title, the President shall take or require such action. The President shall report to the Congress a list of [facilities](/usc/42/9601.md?p=9) for which such review is required, the results of all such reviews, and any actions taken as a result of such reviews. - (d) **Degree of cleanup—** - (1) [Remedial actions](/usc/42/9601.md?p=24) selected under this section or otherwise required or agreed to by the President under this chapter shall attain a degree of cleanup of [hazardous substances](/usc/42/1397h.md?p=c-4), [pollutants](/usc/42/1397h.md?p=c-4), and [contaminants](/usc/42/1397h.md?p=c-4) released into the [environment](/usc/42/9601.md?p=8) and of control of further [release](/usc/42/9601.md?p=22) at a minimum which assures protection of human health and the [environment](/usc/42/9601.md?p=8). Such [remedial actions](/usc/42/9601.md?p=24) shall be relevant and appropriate under the circumstances presented by the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of such substance, [pollutant](/usc/42/1397h.md?p=c-4), or [contaminant](/usc/42/1397h.md?p=c-4). - (2) - (A) With respect to any [hazardous substance](/usc/42/1397h.md?p=c-4), [pollutant or contaminant](/usc/42/9601.md?p=33) that will remain onsite, if— - (i) any [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation under any Federal environmental law, including, but not limited to, the Toxic Substances Control Act [[15 U.S.C. 2601](/usc/15/2601.md) et seq.], the Safe Drinking Water Act [[42 U.S.C. 300f](/usc/42/300f.md) et seq.], the Clean Air Act [[42 U.S.C. 7401](/usc/42/7401.md) et seq.], the Clean Water Act [[33 U.S.C. 1251](/usc/33/1251.md) et seq.], the Marine Protection, Research and Sanctuaries Act [[16 U.S.C. 1431](/usc/16/1431.md) et seq., 1447 et seq., [33 U.S.C. 1401](/usc/33/1401.md) et seq., 2801 et seq.], or the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6901](/usc/42/6901.md) et seq.]; or - (ii) any promulgated [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation under a [State](/usc/42/9601.md?p=27) environmental or [facility](/usc/42/9601.md?p=9) siting law that is more stringent than any Federal [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation, including each such [State](/usc/42/9601.md?p=27) [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation contained in a [program](/usc/42/274l–1.md?p=4) approved, authorized or delegated by the [Administrator](/usc/42/9601.md?p=2) under a statute cited in [subparagraph (A)](#d-2-A), and that has been identified to the President by the [State](/usc/42/9601.md?p=27) in a timely manner, is legally applicable to the [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) concerned or is relevant and appropriate under the circumstances of the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of such [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33), the [remedial action](/usc/42/9601.md?p=24) selected under [section 9604 of this title](/usc/42/9604.md) or secured under [section 9606 of this title](/usc/42/9606.md) shall require, at the completion of the [remedial action](/usc/42/9601.md?p=24), a level or [standard](/usc/42/1320d.md?p=7) of control for such [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) which at least attains such legally applicable or relevant and appropriate [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation. Such [remedial action](/usc/42/9601.md?p=24) shall require a level or [standard](/usc/42/1320d.md?p=7) of control which at least attains Maximum [Contaminant](/usc/42/1397h.md?p=c-4) Level Goals established under the Safe Drinking Water Act [[42 U.S.C. 300f](/usc/42/300f.md) et seq.] and water quality criteria established under section 304 or 303 of the Clean Water Act [[33 U.S.C. 1314](/usc/33/1314.md), 1313], where such goals or criteria are relevant and appropriate under the circumstances of the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22). - (B) - (i) In determining whether or not any water quality criteria under the Clean Water Act [[33 U.S.C. 1251](/usc/33/1251.md) et seq.] is relevant and appropriate under the circumstances of the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22), the President shall consider the designated or potential use of the surface or groundwater, the environmental media affected, the purposes for which such criteria were developed, and the latest information available. - (ii) For the purposes of this section, a process for establishing alternate concentration limits to those otherwise applicable for hazardous constituents in groundwater under [subparagraph (A)](#d-2-A) may not be used to establish applicable [standards](/usc/42/1320d.md?p=7) under this paragraph if the process assumes a point of human exposure beyond the boundary of the [facility](/usc/42/9601.md?p=9), as defined at the conclusion of the remedial investigation and feasibility study, except where— - (I) there are known and projected points of entry of such groundwater into surface water; and - (II) on the basis of measurements or projections, there is or will be no statistically significant increase of such constituents from such groundwater in such surface water at the point of entry or at any point where there is reason to believe accumulation of constituents may occur downstream; and - (III) the [remedial action](/usc/42/9601.md?p=24) includes enforceable measures that will preclude human exposure to the contaminated groundwater at any point between the [facility](/usc/42/9601.md?p=9) boundary and all known and projected points of entry of such groundwater into surface water then the assumed point of human exposure may be at such known and projected points of entry. - (C) - (i) Clause (ii) of this subparagraph shall be applicable only in cases where, due to the President’s selection, in compliance with [subsection (b)(1)](#b-1), of a proposed [remedial action](/usc/42/9601.md?p=24) which does not permanently and significantly reduce the volume, toxicity, or mobility of [hazardous substances](/usc/42/1397h.md?p=c-4), [pollutants](/usc/42/1397h.md?p=c-4), or [contaminants](/usc/42/1397h.md?p=c-4), the proposed disposition of waste generated by or associated with the [remedial action](/usc/42/9601.md?p=24) selected by the President is land [disposal](/usc/42/9601.md?p=29) in a [State](/usc/42/9601.md?p=27) referred to in [clause (ii)](#d-2-C-ii). - (ii) Except as provided in clauses [(iii)](#d-2-C-iii) and [(iv)](#d-2-C-iv), a [State](/usc/42/9601.md?p=27) [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation (including any [State](/usc/42/9601.md?p=27) siting [standard](/usc/42/1320d.md?p=7) or requirement) which could effectively result in the statewide prohibition of land [disposal](/usc/42/9601.md?p=29) of [hazardous substances](/usc/42/1397h.md?p=c-4), [pollutants](/usc/42/1397h.md?p=c-4), or [contaminants](/usc/42/1397h.md?p=c-4) shall not apply. - (iii) Any [State](/usc/42/9601.md?p=27) [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation referred to in [clause (ii)](#d-2-C-ii) shall apply where each of the following conditions is met: - (I) The [State](/usc/42/9601.md?p=27) [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation is of general applicability and was adopted by formal means. - (II) The [State](/usc/42/9601.md?p=27) [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation was adopted on the basis of hydrologic, geologic, or other relevant considerations and was not adopted for the purpose of precluding onsite [remedial actions](/usc/42/9601.md?p=24) or other land [disposal](/usc/42/9601.md?p=29) for reasons unrelated to protection of human health and the [environment](/usc/42/9601.md?p=8). - (III) The [State](/usc/42/9601.md?p=27) arranges for, and assures payment of the incremental costs of utilizing, a [facility](/usc/42/9601.md?p=9) for disposition of the [hazardous substances](/usc/42/1397h.md?p=c-4), [pollutants](/usc/42/1397h.md?p=c-4), or [contaminants](/usc/42/1397h.md?p=c-4) concerned. - (iv) Where the [remedial action](/usc/42/9601.md?p=24) selected by the President does not conform to a [State](/usc/42/9601.md?p=27) [standard](/usc/42/1320d.md?p=7) and the [State](/usc/42/9601.md?p=27) has initiated a law suit against the Environmental Protection Agency prior to May 1, 1986, to seek to have the [remedial action](/usc/42/9601.md?p=24) conform to such [standard](/usc/42/1320d.md?p=7), the President shall conform the [remedial action](/usc/42/9601.md?p=24) to the [State](/usc/42/9601.md?p=27) [standard](/usc/42/1320d.md?p=7). The [State](/usc/42/9601.md?p=27) shall assure the availability of an offsite [facility](/usc/42/9601.md?p=9) for such [remedial action](/usc/42/9601.md?p=24). - (3) In the case of any [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) involving the transfer of any [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) offsite, such [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) shall only be transferred to a [facility](/usc/42/9601.md?p=9) which is operating in compliance with section 3004 and 3005 of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6924](/usc/42/6924.md), 6925] (or, where applicable, in compliance with the Toxic Substances Control Act [[15 U.S.C. 2601](/usc/15/2601.md) et seq.] or other applicable Federal law) and all applicable [State](/usc/42/9601.md?p=27) requirements. Such substance or [pollutant or contaminant](/usc/42/9601.md?p=33) may be transferred to a land [disposal](/usc/42/9601.md?p=29) [facility](/usc/42/9601.md?p=9) only if the President determines that both of the following requirements are met: - (A) The [unit](/usc/42/1395w–114b.md?p=g-2) to which the [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33) is transferred is not releasing any [hazardous waste](/usc/42/9601.md?p=29), or constituent thereof, into the groundwater or surface water or soil. - (B) All such [releases](/usc/42/9601.md?p=22) from other [units](/usc/42/1395w–114b.md?p=g-2) at the [facility](/usc/42/9601.md?p=9) are being controlled by a corrective action [program](/usc/42/274l–1.md?p=4) approved by the [Administrator](/usc/42/9601.md?p=2) under subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq.]. The President shall notify the [owner or operator](/usc/42/9601.md?p=20-A) of such [facility](/usc/42/9601.md?p=9) of determinations under this paragraph. - (4) The President may select a [remedial action](/usc/42/9601.md?p=24) meeting the requirements of [paragraph (1)](#d-1) that does not attain a level or [standard](/usc/42/1320d.md?p=7) of control at least equivalent to a legally applicable or relevant and appropriate [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation as required by [paragraph (2)](#d-2) (including [subparagraph (B)](#d-4-B) thereof), if the President finds that— - (A) the [remedial action](/usc/42/9601.md?p=24) selected is only part of a total [remedial action](/usc/42/9601.md?p=24) that will attain such level or [standard](/usc/42/1320d.md?p=7) of control when completed; - (B) compliance with such requirement at that [facility](/usc/42/9601.md?p=9) will result in greater risk to human health and the [environment](/usc/42/9601.md?p=8) than alternative options; - (C) compliance with such requirements is technically impracticable from an engineering perspective; - (D) the [remedial action](/usc/42/9601.md?p=24) selected will attain a [standard](/usc/42/1320d.md?p=7) of performance that is equivalent to that required under the otherwise applicable [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation, through use of another method or approach; - (E) with respect to a [State](/usc/42/9601.md?p=27) [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation, the [State](/usc/42/9601.md?p=27) has not consistently applied (or demonstrated the intention to consistently apply) the [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation in similar circumstances at other [remedial actions](/usc/42/9601.md?p=24) within the [State](/usc/42/9601.md?p=27); or - (F) in the case of a [remedial action](/usc/42/9601.md?p=24) to be undertaken solely under [section 9604 of this title](/usc/42/9604.md) using the [Fund](/usc/42/9601.md?p=11), selection of a [remedial action](/usc/42/9601.md?p=24) that attains such level or [standard](/usc/42/1320d.md?p=7) of control will not provide a balance between the need for protection of public health and welfare and the [environment](/usc/42/9601.md?p=8) at the [facility](/usc/42/9601.md?p=9) under consideration, and the availability of amounts from the [Fund](/usc/42/9601.md?p=11) to [respond](/usc/42/9601.md?p=25) to other sites which present or may present a threat to public health or welfare or the [environment](/usc/42/9601.md?p=8), taking into consideration the relative immediacy of such threats. The President shall publish such findings, together with an explanation and appropriate documentation. - (e) **Permits and enforcement—** - (1) No Federal, [State](/usc/42/9601.md?p=27), or local permit shall be required for the portion of any [removal](/usc/42/9601.md?p=25) or [remedial action](/usc/42/9601.md?p=24) conducted entirely onsite, where such [remedial action](/usc/42/9601.md?p=24) is selected and carried out in compliance with this section. - (2) A [State](/usc/42/9601.md?p=27) may enforce any Federal or [State](/usc/42/9601.md?p=27) [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation to which the [remedial action](/usc/42/9601.md?p=24) is required to conform under this chapter in the [United States](/usc/42/9601.md?p=27) district court for the district in which the [facility](/usc/42/9601.md?p=9) is located. Any consent decree shall require the parties to attempt expeditiously to resolve disagreements concerning implementation of the [remedial action](/usc/42/9601.md?p=24) informally with the appropriate Federal and [State agencies](/usc/42/1396r–8.md?p=k-9). Where the parties agree, the consent decree may provide for administrative enforcement. Each consent decree shall also contain stipulated penalties for [violations](/usc/42/2000e–16a.md?p=c) of the decree in an amount not to exceed $25,000 per day, which may be enforced by either the President or the [State](/usc/42/9601.md?p=27). Such stipulated penalties shall not be construed to impair or affect the authority of the court to order compliance with the specific terms of any such decree. - (f) **State involvement—** - (1) The President shall promulgate regulations providing for substantial and meaningful involvement by each [State](/usc/42/9601.md?p=27) in initiation, development, and selection of [remedial actions](/usc/42/9601.md?p=24) to be undertaken in that [State](/usc/42/9601.md?p=27). The regulations, at a minimum, shall include each of the following: - (A) [State](/usc/42/9601.md?p=27) involvement in decisions whether to perform a preliminary assessment and site [inspection](/usc/42/4851b.md?p=12). - (B) [Allocation](/usc/42/2021b.md?p=2) of responsibility for [hazard](/usc/42/5165f.md?p=a-3) ranking system scoring. - (C) [State](/usc/42/9601.md?p=27) concurrence in deleting sites from the National Priorities List. - (D) [State](/usc/42/9601.md?p=27) participation in the long-term planning process for all remedial sites within the [State](/usc/42/9601.md?p=27). - (E) A reasonable opportunity for [States](/usc/42/9601.md?p=27) to review and comment on each of the following: - (i) The remedial investigation and feasibility study and all data and technical documents leading to its issuance. - (ii) The planned [remedial action](/usc/42/9601.md?p=24) identified in the remedial investigation and feasibility study. - (iii) The engineering design following selection of the final [remedial action](/usc/42/9601.md?p=24). - (iv) Other technical data and reports relating to implementation of the [remedy](/usc/42/9601.md?p=24). - (v) Any proposed finding or decision by the President to exercise the authority of [subsection (d)(4)](#d-4). - (F) Notice to the [State](/usc/42/9601.md?p=27) of negotiations with potentially responsible parties regarding the scope of any [response](/usc/42/9601.md?p=25) action at a [facility](/usc/42/9601.md?p=9) in the [State](/usc/42/9601.md?p=27) and an opportunity to participate in such negotiations and, subject to [paragraph (2)](#f-2), be a party to any settlement. - (G) Notice to the [State](/usc/42/9601.md?p=27) and an opportunity to comment on the President’s proposed plan for [remedial action](/usc/42/9601.md?p=24) as well as on alternative plans under consideration. The President’s proposed decision regarding the selection of [remedial action](/usc/42/9601.md?p=24) shall be accompanied by a [response](/usc/42/9601.md?p=25) to the comments submitted by the [State](/usc/42/9601.md?p=27), including an explanation regarding any decision under [subsection (d)(4)](#d-4) on compliance with promulgated [State](/usc/42/9601.md?p=27) [standards](/usc/42/1320d.md?p=7). A copy of such [response](/usc/42/9601.md?p=25) shall also be provided to the [State](/usc/42/9601.md?p=27). - (H) Prompt notice and explanation of each proposed action to the [State](/usc/42/9601.md?p=27) in which the [facility](/usc/42/9601.md?p=9) is located. Prior to the promulgation of such regulations, the President shall provide notice to the [State](/usc/42/9601.md?p=27) of negotiations with potentially responsible parties regarding the scope of any [response](/usc/42/9601.md?p=25) action at a [facility](/usc/42/9601.md?p=9) in the [State](/usc/42/9601.md?p=27), and such [State](/usc/42/9601.md?p=27) may participate in such negotiations and, subject to [paragraph (2)](#f-2), any settlements. - (2) - (A) This paragraph shall apply to [remedial actions](/usc/42/9601.md?p=24) secured under [section 9606 of this title](/usc/42/9606.md). At least 30 days prior to the entering of any consent decree, if the President proposes to select a [remedial action](/usc/42/9601.md?p=24) that does not attain a legally applicable or relevant and appropriate [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation, under the authority of [subsection (d)(4)](#d-4), the President shall provide an opportunity for the [State](/usc/42/9601.md?p=27) to concur or not concur in such selection. If the [State](/usc/42/9601.md?p=27) concurs, the [State](/usc/42/9601.md?p=27) may become a signatory to the consent decree. - (B) If the [State](/usc/42/9601.md?p=27) does not concur in such selection, and the [State](/usc/42/9601.md?p=27) desires to have the [remedial action](/usc/42/9601.md?p=24) conform to such [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation, the [State](/usc/42/9601.md?p=27) shall intervene in the action under [section 9606 of this title](/usc/42/9606.md) before entry of the consent decree, to seek to have the [remedial action](/usc/42/9601.md?p=24) so conform. Such intervention shall be a matter of right. The [remedial action](/usc/42/9601.md?p=24) shall conform to such [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation if the [State](/usc/42/9601.md?p=27) establishes, on the administrative record, that the finding of the President was not supported by substantial evidence. If the court determines that the [remedial action](/usc/42/9601.md?p=24) shall conform to such [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation, the [remedial action](/usc/42/9601.md?p=24) shall be so [modified](/usc/42/7501.md?p=4) and the [State](/usc/42/9601.md?p=27) may become a signatory to the decree. If the court determines that the [remedial action](/usc/42/9601.md?p=24) need not conform to such [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation, and the [State](/usc/42/9601.md?p=27) pays or assures the payment of the additional costs attributable to meeting such [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation, the [remedial action](/usc/42/9601.md?p=24) shall be so [modified](/usc/42/7501.md?p=4) and the [State](/usc/42/9601.md?p=27) shall become a signatory to the decree. - (C) The President may conclude settlement negotiations with potentially responsible parties without [State](/usc/42/9601.md?p=27) concurrence. - (3) - (A) This paragraph shall apply to [remedial actions](/usc/42/9601.md?p=24) at [facilities](/usc/42/9601.md?p=9) owned or operated by a department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27). At least 30 days prior to the publication of the President’s final [remedial action](/usc/42/9601.md?p=24) plan, if the President proposes to select a [remedial action](/usc/42/9601.md?p=24) that does not attain a legally applicable or relevant and appropriate [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation, under the authority of [subsection (d)(4)](#d-4), the President shall provide an opportunity for the [State](/usc/42/9601.md?p=27) to concur or not concur in such selection. If the [State](/usc/42/9601.md?p=27) concurs, or does not act within 30 days, the [remedial action](/usc/42/9601.md?p=24) may proceed. - (B) If the [State](/usc/42/9601.md?p=27) does not concur in such selection as provided in [subparagraph (A)](#f-3-A), and desires to have the [remedial action](/usc/42/9601.md?p=24) conform to such [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation, the [State](/usc/42/9601.md?p=27) may maintain an action as follows: - (i) If the President has notified the [State](/usc/42/9601.md?p=27) of selection of such a [remedial action](/usc/42/9601.md?p=24), the [State](/usc/42/9601.md?p=27) may bring an action within 30 days of such notification for the sole purpose of determining whether the finding of the President is supported by substantial evidence. Such action shall be brought in the [United States](/usc/42/9601.md?p=27) district court for the district in which the [facility](/usc/42/9601.md?p=9) is located. - (ii) If the [State](/usc/42/9601.md?p=27) establishes, on the administrative record, that the President’s finding is not supported by substantial evidence, the [remedial action](/usc/42/9601.md?p=24) shall be [modified](/usc/42/7501.md?p=4) to conform to such [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation. - (iii) If the [State](/usc/42/9601.md?p=27) fails to establish that the President’s finding was not supported by substantial evidence and if the [State](/usc/42/9601.md?p=27) pays, within 60 days of judgment, the additional costs attributable to meeting such [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation, the [remedial action](/usc/42/9601.md?p=24) shall be selected to meet such [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation. If the [State](/usc/42/9601.md?p=27) fails to pay within 60 days, the [remedial action](/usc/42/9601.md?p=24) selected by the President shall proceed through completion. - (C) Nothing in this section precludes, and the court shall not enjoin, the Federal agency from taking any [remedial action](/usc/42/9601.md?p=24) unrelated to or not inconsistent with such [standard](/usc/42/1320d.md?p=7), requirement, criteria, or limitation. # §9622. Settlements - (a) **Authority to enter into agreements—** The President, in his discretion, may enter into an [agreement](/usc/42/1320b–8.md?p=a-3-A) with any [person](/usc/42/9601.md?p=21) (including the [owner or operator](/usc/42/9601.md?p=20-A) of the [facility](/usc/42/9601.md?p=9) from which a [release](/usc/42/9601.md?p=22) or substantial threat of [release](/usc/42/9601.md?p=22) emanates, or any other potentially responsible [person](/usc/42/9601.md?p=21)), to perform any [response](/usc/42/9601.md?p=25) action (including any action described in [section 9604(b) of this title](/usc/42/9604.md?p=b)) if the President determines that such action will be done properly by such [person](/usc/42/9601.md?p=21). Whenever practicable and in the public interest, as determined by the President, the President shall act to facilitate [agreements](/usc/42/1320b–8.md?p=a-3-A) under this section that are in the public interest and consistent with the [National Contingency Plan](/usc/42/9601.md?p=31) in order to expedite effective [remedial actions](/usc/42/9601.md?p=24) and minimize litigation. If the President decides not to use the procedures in this section, the President shall notify in writing potentially responsible parties at the [facility](/usc/42/9601.md?p=9) of such decision and the reasons why use of the procedures is inappropriate. A decision of the President to use or not to use the procedures in this section is not subject to judicial review. - (b) **Agreements with potentially responsible parties—** - (1) **Mixed funding—** An [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section may provide that the President will reimburse the parties to the [agreement](/usc/42/1320b–8.md?p=a-3-A) from the [Fund](/usc/42/9601.md?p=11), with interest, for certain costs of actions under the [agreement](/usc/42/1320b–8.md?p=a-3-A) that the parties have agreed to perform but which the President has agreed to finance. In any case in which the President provides such reimbursement, the President shall make all reasonable efforts to recover the amount of such reimbursement under [section 9607 of this title](/usc/42/9607.md) or under other relevant authorities. - (2) **Reviewability—** The President’s decisions regarding the availability of [fund](/usc/42/9601.md?p=11) financing under this subsection shall not be subject to judicial review under [subsection (d)](#d). - (3) **Retention of funds—** If, as part of any [agreement](/usc/42/1320b–8.md?p=a-3-A), the President will be carrying out any action and the parties will be paying amounts to the President, the President may, notwithstanding any other provision of law, retain and use such amounts for purposes of carrying out the [agreement](/usc/42/1320b–8.md?p=a-3-A). - (4) **Future obligation of Fund—** In the case of a completed [remedial action](/usc/42/9601.md?p=24) pursuant to an [agreement](/usc/42/1320b–8.md?p=a-3-A) described in [paragraph (1)](#b-1), the [Fund](/usc/42/9601.md?p=11) shall be subject to an obligation for subsequent [remedial actions](/usc/42/9601.md?p=24) at the same [facility](/usc/42/9601.md?p=9) but only to the extent that such subsequent actions are necessary by reason of the failure of the original [remedial action](/usc/42/9601.md?p=24). Such obligation shall be in a proportion equal to, but not exceeding, the proportion contributed by the [Fund](/usc/42/9601.md?p=11) for the original [remedial action](/usc/42/9601.md?p=24). The [Fund](/usc/42/9601.md?p=11)’s obligation for such future [remedial action](/usc/42/9601.md?p=24) may be met through [Fund](/usc/42/9601.md?p=11) expenditures or through payment, following settlement or [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i), by parties who were not signatories to the original [agreement](/usc/42/1320b–8.md?p=a-3-A). - (c) **Effect of agreement—** - (1) **Liability—** Whenever the President has entered into an [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section, the [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) under this chapter of each party to the [agreement](/usc/42/1320b–8.md?p=a-3-A), including any future [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27), arising from the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) that is the subject of the [agreement](/usc/42/1320b–8.md?p=a-3-A) shall be limited as provided in the [agreement](/usc/42/1320b–8.md?p=a-3-A) pursuant to a covenant not to sue in accordance with [subsection (f)](#f). A covenant not to sue may provide that future [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) of a settling potentially responsible party under the [agreement](/usc/42/1320b–8.md?p=a-3-A) may be limited to the same proportion as that established in the original settlement [agreement](/usc/42/1320b–8.md?p=a-3-A). Nothing in this section shall limit or otherwise affect the authority of any court to review in the consent decree process under [subsection (d)](#d) any covenant not to sue contained in an [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section. In determining the extent to which the [liability](/usc/42/9601.md?p=32) of parties to an [agreement](/usc/42/1320b–8.md?p=a-3-A) shall be limited pursuant to a covenant not to sue, the President shall be guided by the principle that a more complete covenant not to sue shall be provided for a more permanent [remedy](/usc/42/9601.md?p=24) undertaken by such parties. - (2) **Actions against other persons—** If an [agreement](/usc/42/1320b–8.md?p=a-3-A) has been entered into under this section, the President may take any action under [section 9606 of this title](/usc/42/9606.md) against any [person](/usc/42/9601.md?p=21) who is not a party to the [agreement](/usc/42/1320b–8.md?p=a-3-A), once the period for submitting a proposal under [subsection (e)(2)(B)](#e-2-B) has expired. Nothing in this section shall be construed to affect either of the following: - (A) The [liability](/usc/42/9601.md?p=32) of any [person](/usc/42/9601.md?p=21) under section [9606](/usc/42/9606.md) or [9607](/usc/42/9607.md) of this title with respect to any costs or [damages](/usc/42/9601.md?p=6) which are not included in the [agreement](/usc/42/1320b–8.md?p=a-3-A). - (B) The authority of the President to maintain an action under this chapter against any [person](/usc/42/9601.md?p=21) who is not a party to the [agreement](/usc/42/1320b–8.md?p=a-3-A). - (d) **Enforcement—** - (1) **Cleanup agreements—** - (A) **Consent decree—** Whenever the President enters into an [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section with any potentially responsible party with respect to [remedial action](/usc/42/9601.md?p=24) under [section 9606 of this title](/usc/42/9606.md), following approval of the [agreement](/usc/42/1320b–8.md?p=a-3-A) by the [Attorney General](/usc/42/14902.md?p=6), except as otherwise provided in the case of certain administrative settlements referred to in [subsection (g)](#g), the [agreement](/usc/42/1320b–8.md?p=a-3-A) shall be entered in the appropriate [United States](/usc/42/9601.md?p=27) district court as a consent decree. The President need not make any finding regarding an imminent and substantial endangerment to the public health or the [environment](/usc/42/9601.md?p=8) in connection with any such [agreement](/usc/42/1320b–8.md?p=a-3-A) or consent decree. - (B) **Effect—** The entry of any consent decree under this subsection shall not be construed to be an acknowledgment by the parties that the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) concerned constitutes an imminent and substantial endangerment to the public health or welfare or the [environment](/usc/42/9601.md?p=8). Except as otherwise provided in the Federal Rules of Evidence, the participation by any party in the process under this section shall not be considered an admission of [liability](/usc/42/9601.md?p=32) for any purpose, and the fact of such participation shall not be admissible in any judicial or administrative proceeding, including a subsequent proceeding under this section. - (C) **Structure—** The President may fashion a consent decree so that the entering of such decree and compliance with such decree or with any determination or [agreement](/usc/42/1320b–8.md?p=a-3-A) made pursuant to this section shall not be considered an admission of [liability](/usc/42/9601.md?p=32) for any purpose. - (2) **Public participation—** - (A) **Filing of proposed judgment—** At least 30 days before a final judgment is entered under [paragraph (1)](#d-1), the proposed judgment shall be filed with the court. - (B) **Opportunity for comment—** The [Attorney General](/usc/42/14902.md?p=6) shall provide an opportunity to [persons](/usc/42/9601.md?p=21) who are not named as parties to the action to comment on the proposed judgment before its entry by the court as a final judgment. The [Attorney General](/usc/42/14902.md?p=6) shall consider, and file with the court, any written comments, views, or allegations relating to the proposed judgment. The [Attorney General](/usc/42/14902.md?p=6) may withdraw or withhold its consent to the proposed judgment if the comments, views, and allegations concerning the judgment disclose facts or considerations which indicate that the proposed judgment is inappropriate, improper, or inadequate. - (3) **9604(b) agreements—** Whenever the President enters into an [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section with any potentially responsible party with respect to action under [section 9604(b) of this title](/usc/42/9604.md?p=b), the President shall issue an order or enter into a decree setting forth the obligations of such party. The [United States](/usc/42/9601.md?p=27) district court for the district in which the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) occurs may enforce such order or decree. - (e) **Special notice procedures—** - (1) **Notice—** Whenever the President determines that a period of negotiation under this subsection would facilitate an [agreement](/usc/42/1320b–8.md?p=a-3-A) with potentially responsible parties for taking [response](/usc/42/9601.md?p=25) action (including any action described in [section 9604(b) of this title](/usc/42/9604.md?p=b)) and would expedite [remedial action](/usc/42/9601.md?p=24), the President shall so notify all such parties and shall provide them with information concerning each of the following: - (A) The names and addresses of potentially responsible parties (including [owners](/usc/42/13641.md?p=4) and operators and other [persons](/usc/42/9601.md?p=21) referred to in [section 9607(a) of this title](/usc/42/9607.md?p=a)), to the extent such information is available. - (B) To the extent such information is available, the volume and nature of substances contributed by each potentially responsible party identified at the [facility](/usc/42/9601.md?p=9). - (C) A ranking by volume of the substances at the [facility](/usc/42/9601.md?p=9), to the extent such information is available. The President shall make the information referred to in this paragraph available in advance of notice under this paragraph upon the request of a potentially responsible party in accordance with procedures provided by the President. The provisions of subsection (e) of [section 9604 of this title](/usc/42/9604.md) regarding protection of confidential information apply to information provided under this paragraph. Disclosure of information generated by the President under this section to [persons](/usc/42/9601.md?p=21) other than the Congress, or any duly authorized Committee thereof, is subject to other privileges or protections provided by law, including (but not limited to) those applicable to attorney work product. Nothing contained in this paragraph or in other provisions of this chapter shall be construed, interpreted, or applied to diminish the required disclosure of information under other provisions of this or other Federal or [State](/usc/42/9601.md?p=27) laws. - (2) **Negotiation—** - (A) **Moratorium—** Except as provided in this subsection, the President may not commence action under [section 9604(a) of this title](/usc/42/9604.md?p=a) or take any action under [section 9606 of this title](/usc/42/9606.md) for 120 days after providing notice and information under this subsection with respect to such action. Except as provided in this subsection, the President may not commence a remedial investigation and feasibility study under [section 9604(b) of this title](/usc/42/9604.md?p=b) for 90 days after providing notice and information under this subsection with respect to such action. The President may commence any additional studies or investigations authorized under [section 9604(b) of this title](/usc/42/9604.md?p=b), including remedial design, during the negotiation period. - (B) **Proposals—** [Persons](/usc/42/9601.md?p=21) receiving notice and information under paragraph (1) of this subsection with respect to action under [section 9606 of this title](/usc/42/9606.md) shall have 60 days from the date of receipt of such notice to make a proposal to the President for undertaking or financing the action under [section 9606 of this title](/usc/42/9606.md). [Persons](/usc/42/9601.md?p=21) receiving notice and information under paragraph (1) of this subsection with respect to action under [section 9604(b) of this title](/usc/42/9604.md?p=b) shall have 60 days from the date of receipt of such notice to make a proposal to the President for undertaking or financing the action under [section 9604(b) of this title](/usc/42/9604.md?p=b). - (C) **Additional parties—** If an additional potentially responsible party is identified during the negotiation period or after an [agreement](/usc/42/1320b–8.md?p=a-3-A) has been entered into under this subsection concerning a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22), the President may bring the additional party into the negotiation or enter into a separate [agreement](/usc/42/1320b–8.md?p=a-3-A) with such party. - (3) **Preliminary allocation of responsibility—** - (A) **In general—** The President shall develop guidelines for preparing nonbinding preliminary [allocations](/usc/42/2021b.md?p=2) of responsibility. In developing these guidelines the President may include such factors as the President considers relevant, such as: volume, toxicity, mobility, strength of evidence, ability to pay, litigative risks, public interest considerations, precedential value, and inequities and aggravating factors. When it would expedite settlements under this section and [remedial action](/usc/42/9601.md?p=24), the President may, after completion of the remedial investigation and feasibility study, provide a nonbinding preliminary [allocation](/usc/42/2021b.md?p=2) of responsibility which allocates percentages of the total cost of [response](/usc/42/9601.md?p=25) among potentially responsible parties at the [facility](/usc/42/9601.md?p=9). - (B) **Collection of information—** To collect information necessary or appropriate for performing the [allocation](/usc/42/2021b.md?p=2) under [subparagraph (A)](#e-3-A) or for otherwise implementing this section, the President may by subpoena require the attendance and testimony of witnesses and the production of reports, papers, documents, answers to questions, and other information that the President deems necessary. Witnesses shall be paid the same fees and mileage that are paid witnesses in the courts of the [United States](/usc/42/9601.md?p=27). In the event of contumacy or failure or refusal of any [person](/usc/42/9601.md?p=21) to obey any such subpoena, any district court of the [United States](/usc/42/9601.md?p=27) in which venue is proper shall have jurisdiction to order any such [person](/usc/42/9601.md?p=21) to comply with such subpoena. Any failure to obey such an order of the court is punishable by the court as a contempt thereof. - (C) **Effect—** The nonbinding preliminary [allocation](/usc/42/2021b.md?p=2) of responsibility shall not be admissible as evidence in any proceeding, and no court shall have jurisdiction to review the nonbinding preliminary [allocation](/usc/42/2021b.md?p=2) of responsibility. The nonbinding preliminary [allocation](/usc/42/2021b.md?p=2) of responsibility shall not constitute an apportionment or other statement on the divisibility of harm or causation. - (D) **Costs—** The costs incurred by the President in producing the nonbinding preliminary [allocation](/usc/42/2021b.md?p=2) of responsibility shall be reimbursed by the potentially responsible parties whose offer is accepted by the President. Where an offer under this section is not accepted, such costs shall be considered costs of [response](/usc/42/9601.md?p=25). - (E) **Decision to reject offer—** Where the President, in his discretion, has provided a nonbinding preliminary [allocation](/usc/42/2021b.md?p=2) of responsibility and the potentially responsible parties have made a substantial offer providing for [response](/usc/42/9601.md?p=25) to the President which he rejects, the reasons for the rejection shall be provided in a written explanation. The President’s decision to reject such an offer shall not be subject to judicial review. - (4) **Failure to propose—** If the President determines that a good faith proposal for undertaking or financing action under [section 9606 of this title](/usc/42/9606.md) has not been submitted within 60 days of the provision of notice pursuant to this subsection, the President may thereafter commence action under [section 9604(a) of this title](/usc/42/9604.md?p=a) or take an action against any [person](/usc/42/9601.md?p=21) under [section 9606 of this title](/usc/42/9606.md). If the President determines that a good faith proposal for undertaking or financing action under [section 9604(b) of this title](/usc/42/9604.md?p=b) has not been submitted within 60 days after the provision of notice pursuant to this subsection, the President may thereafter commence action under [section 9604(b) of this title](/usc/42/9604.md?p=b). - (5) **Significant threats—** Nothing in this subsection shall limit the President’s authority to undertake [response](/usc/42/9601.md?p=25) or [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) regarding a significant threat to public health or the [environment](/usc/42/9601.md?p=8) within the negotiation period established by this subsection. - (6) **Inconsistent response action—** When either the President, or a potentially responsible party pursuant to an administrative order or consent decree under this chapter, has initiated a remedial investigation and feasibility study for a particular [facility](/usc/42/9601.md?p=9) under this chapter, no potentially responsible party may undertake any [remedial action](/usc/42/9601.md?p=24) at the [facility](/usc/42/9601.md?p=9) unless such [remedial action](/usc/42/9601.md?p=24) has been authorized by the President. - (f) **Covenant not to sue—** - (1) **Discretionary covenants—** The President may, in his discretion, provide any [person](/usc/42/9601.md?p=21) with a covenant not to sue concerning any [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) under this chapter, including future [liability](/usc/42/9601.md?p=32), resulting from a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) addressed by a [remedial action](/usc/42/9601.md?p=24), whether that action is onsite or offsite, if each of the following conditions is met: - (A) The covenant not to sue is in the public interest. - (B) The covenant not to sue would expedite [response](/usc/42/9601.md?p=25) action consistent with the [National Contingency Plan](/usc/42/9601.md?p=31) under [section 9605 of this title](/usc/42/9605.md). - (C) The [person](/usc/42/9601.md?p=21) is in full compliance with a consent decree under [section 9606 of this title](/usc/42/9606.md) (including a consent decree entered into in accordance with this section) for [response](/usc/42/9601.md?p=25) to the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) concerned. - (D) The [response](/usc/42/9601.md?p=25) action has been approved by the President. - (2) **Special covenants not to sue—** In the case of any [person](/usc/42/9601.md?p=21) to whom the President is authorized under paragraph (1) of this subsection to provide a covenant not to sue, for the portion of [remedial action](/usc/42/9601.md?p=24)— - (A) which involves the [transport](/usc/42/9601.md?p=26) and secure disposition offsite of [hazardous substances](/usc/42/1397h.md?p=c-4) in a [facility](/usc/42/9601.md?p=9) meeting the requirements of sections [6924(c)](/usc/42/6924.md?p=c), [(d)](/usc/42/6924.md?p=d), [(e)](/usc/42/6924.md?p=e), [(f)](/usc/42/6924.md?p=f), [(g)](/usc/42/6924.md?p=g), [(m)](/usc/42/6924.md?p=m), [(o)](/usc/42/6924.md?p=o), [(p)](/usc/42/6924.md?p=p), [(u)](/usc/42/6924.md?p=u), and [(v)](/usc/42/6924.md?p=v) and [6925(c)](/usc/42/6925.md?p=c) of this title, where the President has rejected a proposed [remedial action](/usc/42/9601.md?p=24) that is consistent with the [National Contingency Plan](/usc/42/9601.md?p=31) that does not include such offsite disposition and has thereafter required offsite disposition; or - (B) which involves the [treatment](/usc/42/9601.md?p=29) of [hazardous substances](/usc/42/1397h.md?p=c-4) so as to destroy, eliminate, or permanently immobilize the hazardous constituents of such substances, such that, in the judgment of the President, the substances no longer present any current or currently foreseeable future significant risk to public health, welfare or the [environment](/usc/42/9601.md?p=8), no byproduct of the [treatment](/usc/42/9601.md?p=29) or destruction process presents any significant [hazard](/usc/42/5165f.md?p=a-3) to public health, welfare or the [environment](/usc/42/9601.md?p=8), and all byproducts are themselves treated, destroyed, or contained in a manner which assures that such byproducts do not present any current or currently foreseeable future significant risk to public health, welfare or the [environment](/usc/42/9601.md?p=8), the President shall provide such [person](/usc/42/9601.md?p=21) with a covenant not to sue with respect to future [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) under this chapter for a future [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4) from such [facility](/usc/42/9601.md?p=9), and a [person](/usc/42/9601.md?p=21) provided such covenant not to sue shall not be [liable](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) under section [9606](/usc/42/9606.md) or [9607](/usc/42/9607.md) of this title with respect to such [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) at a future time. - (3) **Requirement that remedial action be completed—** A covenant not to sue concerning future [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) shall not take effect until the President certifies that [remedial action](/usc/42/9601.md?p=24) has been completed in accordance with the requirements of this chapter at the [facility](/usc/42/9601.md?p=9) that is the subject of such covenant. - (4) **Factors—** In assessing the appropriateness of a covenant not to sue under [paragraph (1)](#f-1) and any condition to be included in a covenant not to sue under paragraph [(1)](#f-1) or [(2)](#f-2), the President shall consider whether the covenant or condition is in the public interest on the basis of such factors as the following: - (A) The effectiveness and reliability of the [remedy](/usc/42/9601.md?p=24), in light of the other alternative [remedies](/usc/42/9601.md?p=24) considered for the [facility](/usc/42/9601.md?p=9) concerned. - (B) The nature of the risks remaining at the [facility](/usc/42/9601.md?p=9). - (C) The extent to which performance [standards](/usc/42/1320d.md?p=7) are included in the order or decree. - (D) The extent to which the [response](/usc/42/9601.md?p=25) action provides a complete [remedy](/usc/42/9601.md?p=24) for the [facility](/usc/42/9601.md?p=9), including a reduction in the hazardous nature of the substances at the [facility](/usc/42/9601.md?p=9). - (E) The extent to which the technology used in the [response](/usc/42/9601.md?p=25) action is demonstrated to be effective. - (F) Whether the [Fund](/usc/42/9601.md?p=11) or other sources of funding would be available for any additional [remedial actions](/usc/42/9601.md?p=24) that might eventually be necessary at the [facility](/usc/42/9601.md?p=9). - (G) Whether the [remedial action](/usc/42/9601.md?p=24) will be carried out, in whole or in significant part, by the responsible parties themselves. - (5) **Satisfactory performance—** Any covenant not to sue under this subsection shall be subject to the satisfactory performance by such party of its obligations under the [agreement](/usc/42/1320b–8.md?p=a-3-A) concerned. - (6) **Additional condition for future liability—** - (A) Except for the portion of the [remedial action](/usc/42/9601.md?p=24) which is subject to a covenant not to sue under [paragraph (2)](#f-2) or under [subsection (g)](#g) (relating to de minimis settlements), a covenant not to sue a [person](/usc/42/9601.md?p=21) concerning future [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) shall include an exception to the covenant that allows the President to sue such [person](/usc/42/9601.md?p=21) concerning future [liability](/usc/42/9601.md?p=32) resulting from the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) that is the subject of the covenant where such [liability](/usc/42/9601.md?p=32) arises out of conditions which are unknown at the time the President certifies under [paragraph (3)](#f-3) that [remedial action](/usc/42/9601.md?p=24) has been completed at the [facility](/usc/42/9601.md?p=9) concerned. - (B) In extraordinary circumstances, the President may determine, after assessment of relevant factors such as those referred to in [paragraph (4)](#f-4) and volume, toxicity, mobility, strength of evidence, ability to pay, litigative risks, public interest considerations, precedential value, and inequities and aggravating factors, not to include the exception referred to in [subparagraph (A)](#f-6-A) if other terms, conditions, or requirements of the [agreement](/usc/42/1320b–8.md?p=a-3-A) containing the covenant not to sue are sufficient to provide all reasonable assurances that public health and the [environment](/usc/42/9601.md?p=8) will be protected from any future [releases](/usc/42/9601.md?p=22) at or from the [facility](/usc/42/9601.md?p=9). - (C) The President is authorized to include any provisions allowing future [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) under section [9606](/usc/42/9606.md) or [9607](/usc/42/9607.md) of this title that in the discretion of the President are necessary and appropriate to assure protection of public health, welfare, and the [environment](/usc/42/9601.md?p=8). - (g) **De minimis settlements—** - (1) **Expedited final settlement—** Whenever practicable and in the public interest, as determined by the President, the President shall as promptly as possible reach a final settlement with a potentially responsible party in an administrative or civil action under section [9606](/usc/42/9606.md) or [9607](/usc/42/9607.md) of this title if such settlement involves only a minor portion of the [response](/usc/42/9601.md?p=25) costs at the [facility](/usc/42/9601.md?p=9) concerned and, in the judgment of the President, the conditions in either of the following subparagraph [(A)](#g-1-A) or [(B)](#g-1-B) are met: - (A) Both of the following are minimal in comparison to other [hazardous substances](/usc/42/1397h.md?p=c-4) at the [facility](/usc/42/9601.md?p=9): - (i) The amount of the [hazardous substances](/usc/42/1397h.md?p=c-4) contributed by that party to the [facility](/usc/42/9601.md?p=9). - (ii) The toxic or other hazardous effects of the substances contributed by that party to the [facility](/usc/42/9601.md?p=9). - (B) The potentially responsible party— - (i) is the [owner](/usc/42/13641.md?p=4) of the real property on or in which the [facility](/usc/42/9601.md?p=9) is located; - (ii) did not conduct or permit the generation, [transportation](/usc/42/9601.md?p=26), storage, [treatment](/usc/42/9601.md?p=29), or [disposal](/usc/42/9601.md?p=29) of any [hazardous substance](/usc/42/1397h.md?p=c-4) at the [facility](/usc/42/9601.md?p=9); and - (iii) did not contribute to the [release](/usc/42/9601.md?p=22) or threat of [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) at the [facility](/usc/42/9601.md?p=9) through any action or omission. This [subparagraph (B)](#g-1-B) does not apply if the potentially responsible party purchased the real property with actual or constructive knowledge that the property was used for the generation, [transportation](/usc/42/9601.md?p=26), storage, [treatment](/usc/42/9601.md?p=29), or [disposal](/usc/42/9601.md?p=29) of any [hazardous substance](/usc/42/1397h.md?p=c-4). - (2) **Covenant not to sue—** The President may provide a covenant not to sue with respect to the [facility](/usc/42/9601.md?p=9) concerned to any party who has entered into a settlement under this subsection unless such a covenant would be inconsistent with the public interest as determined under [subsection (f)](#f). - (3) **Expedited agreement—** The President shall reach any such settlement or grant any such covenant not to sue as soon as possible after the President has available the information necessary to reach such a settlement or grant such a covenant. - (4) **Consent decree or administrative order—** A settlement under this subsection shall be entered as a consent decree or embodied in an administrative order setting forth the terms of the settlement. In the case of any [facility](/usc/42/9601.md?p=9) where the total [response](/usc/42/9601.md?p=25) costs exceed $500,000 (excluding interest), if the settlement is embodied as an administrative order, the order may be issued only with the prior written approval of the [Attorney General](/usc/42/14902.md?p=6). If the [Attorney General](/usc/42/14902.md?p=6) or his designee has not approved or disapproved the order within 30 days of this referral, the order shall be deemed to be approved unless the [Attorney General](/usc/42/14902.md?p=6) and the [Administrator](/usc/42/9601.md?p=2) have agreed to extend the time. The district court for the district in which the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) occurs may enforce any such administrative order. - (5) **Effect of agreement—** A party who has resolved its [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) under this subsection shall not be [liable](/usc/42/9601.md?p=32) for [claims](/usc/42/9601.md?p=4) for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially responsible parties unless its terms so provide, but it reduces the potential [liability](/usc/42/9601.md?p=32) of the others by the amount of the settlement. - (6) **Settlements with other potentially responsible parties—** Nothing in this subsection shall be construed to affect the authority of the President to reach settlements with other potentially responsible parties under this chapter. - (7) **Reduction in settlement amount based on limited ability to pay—** - (A) **In general—** The condition for settlement under this paragraph is that the potentially responsible party is a [person](/usc/42/9601.md?p=21) who demonstrates to the President an inability or a limited ability to pay [response](/usc/42/9601.md?p=25) costs. - (B) **Considerations—** In determining whether or not a demonstration is made under [subparagraph (A)](#g-7-A) by a [person](/usc/42/9601.md?p=21), the President shall take into consideration the ability of the [person](/usc/42/9601.md?p=21) to pay [response](/usc/42/9601.md?p=25) costs and still maintain its basic business operations, including consideration of the overall financial condition of the [person](/usc/42/9601.md?p=21) and demonstrable constraints on the ability of the [person](/usc/42/9601.md?p=21) to raise revenues. - (C) **Information—** A [person](/usc/42/9601.md?p=21) requesting settlement under this paragraph shall promptly provide the President with all relevant information needed to determine the ability of the [person](/usc/42/9601.md?p=21) to pay [response](/usc/42/9601.md?p=25) costs. - (D) **Alternative payment methods—** If the President determines that a [person](/usc/42/9601.md?p=21) is unable to pay its total settlement amount at the time of settlement, the President shall consider such alternative payment methods as may be necessary or appropriate. - (8) **Additional conditions for expedited settlements—** - (A) **Waiver of claims—** The President shall require, as a condition for settlement under this subsection, that a potentially responsible party waive all of the [claims](/usc/42/9601.md?p=4) (including a [claim](/usc/42/9601.md?p=4) for contribution under this chapter) that the party may have against other potentially responsible parties for [response](/usc/42/9601.md?p=25) costs incurred with respect to the [facility](/usc/42/9601.md?p=9), unless the President determines that requiring a waiver would be unjust. - (B) **Failure to comply—** The President may decline to offer a settlement to a potentially responsible party under this subsection if the President determines that the potentially responsible party has failed to comply with any request for access or information or an administrative subpoena issued by the President under this chapter or has impeded or is impeding, through action or inaction, the performance of a [response](/usc/42/9601.md?p=25) action with respect to the [facility](/usc/42/9601.md?p=9). - (C) **Responsibility to provide information and access—** A potentially responsible party that enters into a settlement under this subsection shall not be relieved of the responsibility to provide any information or access requested in accordance with [subsection (e)(3)(B)](#e-3-B) or [section 9604(e) of this title](/usc/42/9604.md?p=e). - (9) **Basis of determination—** If the President determines that a potentially responsible party is not eligible for settlement under this subsection, the President shall provide the reasons for the determination in writing to the potentially responsible party that requested a settlement under this subsection. - (10) **Notification—** As soon as practicable after receipt of sufficient information to make a determination, the President shall notify any [person](/usc/42/9601.md?p=21) that the President determines is eligible under [paragraph (1)](#g-1) of the [person](/usc/42/9601.md?p=21)’s eligibility for an expedited settlement. - (11) **No judicial review—** A determination by the President under paragraph [(7)](#g-7), [(8)](#g-8), [(9)](#g-9), or [(10)](#g-10) shall not be subject to judicial review. - (12) **Notice of settlement—** After a settlement under this subsection becomes final with respect to a [facility](/usc/42/9601.md?p=9), the President shall promptly notify potentially responsible parties at the [facility](/usc/42/9601.md?p=9) that have not resolved their [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) of the settlement. - (h) **Cost recovery settlement authority—** - (1) **Authority to settle—** The head of any department or agency with authority to undertake a [response](/usc/42/9601.md?p=25) action under this chapter pursuant to the [national contingency plan](/usc/42/9601.md?p=31) may consider, compromise, and settle a [claim](/usc/42/9601.md?p=4) under [section 9607 of this title](/usc/42/9607.md) for costs incurred by the [United States](/usc/42/9601.md?p=27) Government if the [claim](/usc/42/9601.md?p=4) has not been referred to the Department of Justice for further action. In the case of any [facility](/usc/42/9601.md?p=9) where the total [response](/usc/42/9601.md?p=25) costs exceed $500,000 (excluding interest), any [claim](/usc/42/9601.md?p=4) referred to in the preceding sentence may be compromised and settled only with the prior written approval of the [Attorney General](/usc/42/14902.md?p=6). - (2) **Use of arbitration—** Arbitration in accordance with regulations promulgated under this subsection may be used as a method of settling [claims](/usc/42/9601.md?p=4) of the [United States](/usc/42/9601.md?p=27) where the total [response](/usc/42/9601.md?p=25) costs for the [facility](/usc/42/9601.md?p=9) concerned do not exceed $500,000 (excluding interest). After consultation with the [Attorney General](/usc/42/14902.md?p=6), the department or agency head may establish and publish regulations for the use of arbitration or settlement under this subsection. - (3) **Recovery of claims—** If any [person](/usc/42/9601.md?p=21) fails to pay a [claim](/usc/42/9601.md?p=4) that has been settled under this subsection, the department or agency head shall request the [Attorney General](/usc/42/14902.md?p=6) to bring a civil action in an appropriate district court to recover the amount of such [claim](/usc/42/9601.md?p=4), plus costs, attorneys’ fees, and interest from the date of the settlement. In such an action, the terms of the settlement shall not be subject to review. - (4) **Claims for contribution—** A [person](/usc/42/9601.md?p=21) who has resolved its [liability](/usc/42/9601.md?p=32) to the [United States](/usc/42/9601.md?p=27) under this subsection shall not be [liable](/usc/42/9601.md?p=32) for [claims](/usc/42/9601.md?p=4) for contribution regarding matters addressed in the settlement. Such settlement shall not discharge any of the other potentially [liable](/usc/42/9601.md?p=32) [persons](/usc/42/9601.md?p=21) unless its terms so provide, but it reduces the potential [liability](/usc/42/9601.md?p=32) of the others by the amount of the settlement. - (i) **Settlement procedures—** - (1) **Publication in Federal Register—** At least 30 days before any settlement (including any settlement arrived at through arbitration) may become final under [subsection (h)](#h), or under [subsection (g)](#g) in the case of a settlement embodied in an administrative order, the head of the department or agency which has jurisdiction over the proposed settlement shall publish in the Federal Register notice of the proposed settlement. The notice shall identify the [facility](/usc/42/9601.md?p=9) concerned and the parties to the proposed settlement. - (2) **Comment period—** For a 30-day period beginning on the date of publication of notice under [paragraph (1)](#i-1) of a proposed settlement, the head of the department or agency which has jurisdiction over the proposed settlement shall provide an opportunity for [persons](/usc/42/9601.md?p=21) who are not parties to the proposed settlement to file written comments relating to the proposed settlement. - (3) **Consideration of comments—** The head of the department or agency shall consider any comments filed under [paragraph (2)](#i-2) in determining whether or not to consent to the proposed settlement and may withdraw or withhold consent to the proposed settlement if such comments disclose facts or considerations which indicate the proposed settlement is inappropriate, improper, or inadequate. - (j) **Natural resources—** - (1) **Notification of trustee—** Where a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of any [hazardous substance](/usc/42/1397h.md?p=c-4) that is the subject of negotiations under this section may have resulted in [damages](/usc/42/9601.md?p=6) to [natural resources](/usc/42/9601.md?p=16) under the trusteeship of the [United States](/usc/42/9601.md?p=27), the President shall notify the Federal natural resource trustee of the negotiations and shall encourage the participation of such trustee in the negotiations. - (2) **Covenant not to sue—** An [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section may contain a covenant not to sue under [section 9607(a)(4)(C) of this title](/usc/42/9607.md?p=a-4-C) for [damages](/usc/42/9601.md?p=6) to [natural resources](/usc/42/9601.md?p=16) under the trusteeship of the [United States](/usc/42/9601.md?p=27) resulting from the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4) that is the subject of the [agreement](/usc/42/1320b–8.md?p=a-3-A), but only if the Federal natural resource trustee has agreed in writing to such covenant. The Federal natural resource trustee may agree to such covenant if the potentially responsible party agrees to undertake appropriate actions necessary to protect and restore the [natural resources](/usc/42/9601.md?p=16) damaged by such [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4). - (k) **Section not applicable to vessels—** The provisions of this section shall not apply to [releases](/usc/42/9601.md?p=22) from a [vessel](/usc/42/9601.md?p=28). - (l) **Civil penalties—** A potentially responsible party which is a party to an administrative order or consent decree entered pursuant to an [agreement](/usc/42/1320b–8.md?p=a-3-A) under this section or [section 9620 of this title](/usc/42/9620.md) (relating to [Federal facilities](/usc/42/17061.md?p=8)) or which is a party to an [agreement](/usc/42/1320b–8.md?p=a-3-A) under [section 9620 of this title](/usc/42/9620.md) and which fails or refuses to comply with any term or condition of the order, decree or [agreement](/usc/42/1320b–8.md?p=a-3-A) shall be subject to a civil penalty in accordance with [section 9609 of this title](/usc/42/9609.md). - (m) **Applicability of general principles of law—** In the case of consent decrees and other settlements under this section (including covenants not to sue), no provision of this chapter shall be construed to preclude or otherwise affect the applicability of general principles of law regarding the setting aside or [modification](/usc/42/7501.md?p=4) of consent decrees or other settlements. # §9623. Reimbursement to local governments - (a) **Application—** Any general purpose [unit of local government](/usc/42/6372.md?p=2) for a political subdivision which is affected by a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) at any [facility](/usc/42/9601.md?p=9) may apply to the President for reimbursement under this section. - (b) **Reimbursement—** - (1) **Temporary emergency measures—** The President is authorized to reimburse local community authorities for expenses incurred (before or after October 17, 1986) in carrying out temporary emergency measures necessary to prevent or mitigate injury to human health or the [environment](/usc/42/9601.md?p=8) associated with the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of any [hazardous substance](/usc/42/1397h.md?p=c-4) or [pollutant or contaminant](/usc/42/9601.md?p=33). Such measures may include, where appropriate, security fencing to limit access, [response](/usc/42/9601.md?p=25) to fires and explosions, and other measures which require immediate [response](/usc/42/9601.md?p=25) at the local level. - (2) **Local funds not supplanted—** Reimbursement under this section shall not supplant local [funds](/usc/42/9601.md?p=11) normally provided for [response](/usc/42/9601.md?p=25). - (c) **Amount—** The amount of any reimbursement to any local authority under [subsection (b)(1)](#b-1) may not exceed $25,000 for a [single](/usc/42/2304.md?p=m) [response](/usc/42/9601.md?p=25). The reimbursement under this section with respect to a [single](/usc/42/2304.md?p=m) [facility](/usc/42/9601.md?p=9) shall be limited to the [units](/usc/42/1395w–114b.md?p=g-2) of [local government](/usc/42/8401a.md) having jurisdiction over the political subdivision in which the [facility](/usc/42/9601.md?p=9) is located. - (d) **Procedure—** Reimbursements authorized pursuant to this section shall be in accordance with rules promulgated by the [Administrator](/usc/42/9601.md?p=2) within one year after October 17, 1986. # §9624. Methane recovery - (a) **In general—** In the case of a [facility](/usc/42/9601.md?p=9) at which equipment for the recovery or processing (including recirculation of condensate) of methane has been installed, for purposes of this chapter: - (1) The [owner or operator](/usc/42/9601.md?p=20-A) of such equipment shall not be considered an “[owner or operator](/usc/42/9601.md?p=20-A)”, as defined in [section 9601(20) of this title](/usc/42/9601.md?p=20), with respect to such [facility](/usc/42/9601.md?p=9). - (2) The [owner or operator](/usc/42/9601.md?p=20-A) of such equipment shall not be considered to have arranged for [disposal](/usc/42/9601.md?p=29) or [treatment](/usc/42/9601.md?p=29) of any [hazardous substance](/usc/42/1397h.md?p=c-4) at such [facility](/usc/42/9601.md?p=9) pursuant to [section 9607 of this title](/usc/42/9607.md). - (3) The [owner or operator](/usc/42/9601.md?p=20-A) of such equipment shall not be subject to any action under [section 9606 of this title](/usc/42/9606.md) with respect to such [facility](/usc/42/9601.md?p=9). - (b) **Exceptions—** [Subsection (a)](#a) does not apply with respect to a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) from a [facility](/usc/42/9601.md?p=9) described in [subsection (a)](#a) if either of the following circumstances exist: - (1) The [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) was primarily caused by activities of the [owner or operator](/usc/42/9601.md?p=20-A) of the equipment described in [subsection (a)](#a). - (2) The [owner or operator](/usc/42/9601.md?p=20-A) of such equipment would be covered by paragraph [(1)](#a-1), [(2)](#a-2), [(3)](#a-3), or (4) of subsection (a) of [section 9607 of this title](/usc/42/9607.md) with respect to such [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) if he were not the [owner or operator](/usc/42/9601.md?p=20-A) of such equipment. In the case of any [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) referred to in [paragraph (1)](#b-1), the [owner or operator](/usc/42/9601.md?p=20-A) of the equipment described in [subsection (a)](#a) shall be [liable](/usc/42/9601.md?p=32) under this chapter only for costs or [damages](/usc/42/9601.md?p=6) primarily caused by the activities of such [owner or operator](/usc/42/9601.md?p=20-A). # §9625. Section 6921(b)(3)(A)(i) waste - (a) **Revision of hazard ranking system—** This section shall apply only to [facilities](/usc/42/9601.md?p=9) which are not included or proposed for inclusion on the National Priorities List and which contain substantial volumes of waste described in [section 6921(b)(3)(A)(i) of this title](/usc/42/6921.md?p=b-3-A-i). As expeditiously as practicable, the President shall revise the [hazard](/usc/42/5165f.md?p=a-3) ranking system in effect under the [National Contingency Plan](/usc/42/9601.md?p=31) with respect to such [facilities](/usc/42/9601.md?p=9) in a manner which assures appropriate consideration of each of the following site-specific characteristics of such [facilities](/usc/42/9601.md?p=9): - (1) The quantity, toxicity, and concentrations of hazardous constituents which are present in such waste and a comparison thereof with other wastes. - (2) The extent of, and potential for, [release](/usc/42/9601.md?p=22) of such hazardous constituents into the [environment](/usc/42/9601.md?p=8). - (3) The degree of risk to human health and the [environment](/usc/42/9601.md?p=8) posed by such constituents. - (b) **Inclusion prohibited—** Until the [hazard](/usc/42/5165f.md?p=a-3) ranking system is revised as required by this section, the President may not include on the National Priorities List any [facility](/usc/42/9601.md?p=9) which contains substantial volumes of waste described in [section 6921(b)(3)(A)(i) of this title](/usc/42/6921.md?p=b-3-A-i) on the basis of an evaluation made principally on the volume of such waste and not on the concentrations of the hazardous constituents of such waste. Nothing in this section shall be construed to affect the President’s authority to include any such [facility](/usc/42/9601.md?p=9) on the National Priorities List based on the presence of other substances at such [facility](/usc/42/9601.md?p=9) or to exercise any other authority of this chapter with respect to such other substances. # §9626. Indian tribes - (a) **Treatment generally—** The governing body of an [Indian tribe](/usc/42/9601.md?p=36) shall be afforded substantially the same [treatment](/usc/42/9601.md?p=29) as a [State](/usc/42/9601.md?p=27) with respect to the provisions of [section 9603(a) of this title](/usc/42/9603.md?p=a) (regarding notification of [releases](/usc/42/9601.md?p=22)), [section 9604(c)(2) of this title](/usc/42/9604.md?p=c-2) (regarding consultation on [remedial actions](/usc/42/9601.md?p=24)), [section 9604(e) of this title](/usc/42/9604.md?p=e) (regarding access to information), [section 9604(i) of this title](/usc/42/9604.md?p=i) (regarding health authorities) and [section 9605 of this title](/usc/42/9605.md) (regarding roles and responsibilities under the [national contingency plan](/usc/42/9601.md?p=31) and submittal of priorities for [remedial action](/usc/42/9601.md?p=24), but not including the provision regarding the inclusion of at least one [facility](/usc/42/9601.md?p=9) per [State](/usc/42/9601.md?p=27) on the National Priorities List). - (b) **Community relocation—** Should the President determine that proper [remedial action](/usc/42/9601.md?p=24) is the permanent relocation of tribal members away from a contaminated site because it is cost effective and necessary to protect their health and welfare, such finding must be concurred in by the affected [tribal government](/usc/42/804.md?p=d-3) before relocation shall occur. The President, in cooperation with the [Secretary](/usc/42/242q–4.md?p=2) of the Interior, shall also assure that all benefits of the relocation [program](/usc/42/274l–1.md?p=4) are provided to the affected tribe and that alternative land of equivalent value is available and satisfactory to the tribe. Any lands acquired for relocation of tribal members shall be held in [trust](/usc/42/12854.md?p=6) by the [United States](/usc/42/9601.md?p=27) for the benefit of the tribe. - (c) **Study—** The President shall conduct a survey, in consultation with the [Indian tribes](/usc/42/9601.md?p=36), to determine the extent of [hazardous waste](/usc/42/9601.md?p=29) sites on [Indian](/usc/42/6862.md?p=6) lands. Such survey shall be included within a report which shall make recommendations on the [program](/usc/42/274l–1.md?p=4) needs of tribes under this chapter, with particular emphasis on how tribal participation in the administration of such [programs](/usc/42/274l–1.md?p=4) can be maximized. Such report shall be submitted to Congress along with the President’s budget request for fiscal year 1988. - (d) **Limitation—** Notwithstanding any other provision of this chapter, no action under this chapter by an [Indian tribe](/usc/42/9601.md?p=36) shall be barred until the later of the following: - (1) The applicable period of limitations has expired. - (2) 2 years after the [United States](/usc/42/9601.md?p=27), in its capacity as trustee for the tribe, gives written notice to the governing body of the tribe that it will not present a [claim](/usc/42/9601.md?p=4) or commence an action on behalf of the tribe or fails to present a [claim](/usc/42/9601.md?p=4) or commence an action within the time limitations specified in this chapter. # §9627. Recycling transactions - (a) **Liability clarification—** - (1) As provided in subsections [(b)](#b), [(c)](#c), [(d)](#d), and [(e)](#e), a [person](/usc/42/9601.md?p=21) who arranged for recycling of [recyclable material](#b) shall not be [liable](/usc/42/9601.md?p=32) under sections [9607(a)(3)](/usc/42/9607.md?p=a-3) and [9607(a)(4)](/usc/42/9607.md?p=a-4) of this title with respect to such material. - (2) A determination whether or not any [person](/usc/42/9601.md?p=21) shall be [liable](/usc/42/9601.md?p=32) under [section 9607(a)(3) of this title](/usc/42/9607.md?p=a-3) or [section 9607(a)(4) of this title](/usc/42/9607.md?p=a-4) for any material that is not a [recyclable material](#b) as that term is used in subsections [(b)](#b) and [(c)](#c), [(d)](#d), or [(e)](#e) of this section shall be made, without regard to subsections[^1] (b), (c), (d), or (e) of this section. - (b) **Recyclable material defined—** For purposes of this section, the term “recyclable material” means scrap paper, scrap plastic, scrap glass, scrap textiles, scrap rubber (other than whole tires), scrap metal, or spent lead-acid, spent nickel-cadmium, and other spent batteries, as well as minor amounts of material incident to or adhering to the scrap material as a result of its normal and customary use prior to becoming scrap; except that such term shall not include— - (1) shipping containers of a capacity from 30 liters to 3,000 liters, whether intact or not, having any [hazardous substance](/usc/42/1397h.md?p=c-4) (but not metal bits and pieces or [hazardous substance](/usc/42/1397h.md?p=c-4) that form an integral part of the container) contained in or adhering thereto; or - (2) any item of material that contained polychlorinated biphenyls at a concentration in excess of 50 parts per million or any new [standard](/usc/42/1320d.md?p=7) promulgated pursuant to applicable Federal laws. - (c) **Transactions involving scrap paper, plastic, glass, textiles, or rubber—** Transactions involving scrap paper, scrap plastic, scrap glass, scrap textiles, or scrap rubber (other than whole tires) shall be deemed to be arranging for recycling if the [person](/usc/42/9601.md?p=21) who arranged for the transaction (by selling [recyclable material](#b) or otherwise arranging for the recycling of [recyclable material](#b)) can demonstrate by a preponderance of the evidence that all of the following criteria were met at the time of the transaction: - (1) The [recyclable material](#b) met a commercial specification grade. - (2) A market existed for the [recyclable material](#b). - (3) A substantial portion of the [recyclable material](#b) was made available for use as feedstock for the [manufacture](/usc/42/300aa–33.md?p=3) of a new saleable product. - (4) The [recyclable material](#b) could have been a replacement or substitute for a virgin raw material, or the product to be made from the [recyclable material](#b) could have been a replacement or substitute for a product made, in whole or in part, from a virgin raw material. - (5) For transactions occurring 90 days or more after November 29, 1999, the [person](/usc/42/9601.md?p=21) exercised reasonable care to determine that the [facility](/usc/42/9601.md?p=9) where the [recyclable material](#b) was handled, processed, reclaimed, or otherwise managed by another [person](/usc/42/9601.md?p=21) (hereinafter in this section referred to as a “consuming [facility](/usc/42/9601.md?p=9)”) was in compliance with substantive (not procedural or administrative) provisions of any Federal, [State](/usc/42/9601.md?p=27), or local environmental law or regulation, or compliance order or decree issued pursuant thereto, applicable to the handling, processing, reclamation, storage, or other management activities associated with [recyclable material](#b). - (6) For purposes of this subsection, “reasonable care” shall be determined using criteria that include (but are not limited to)— - (A) the price paid in the recycling transaction; - (B) the ability of the [person](/usc/42/9601.md?p=21) to detect the nature of the consuming [facility](/usc/42/9601.md?p=9)’s operations concerning its handling, processing, reclamation, or other management activities associated with [recyclable material](#b); and - (C) the result of inquiries made to the appropriate Federal, [State](/usc/42/9601.md?p=27), or local environmental agency (or agencies) regarding the consuming [facility](/usc/42/9601.md?p=9)’s past and current compliance with substantive (not procedural or administrative) provisions of any Federal, [State](/usc/42/9601.md?p=27), or local environmental law or regulation, or compliance order or decree issued pursuant thereto, applicable to the handling, processing, reclamation, storage, or other management activities associated with the [recyclable material](#b). For the purposes of this paragraph, a requirement to obtain a permit applicable to the handling, processing, reclamation, or other management activity associated with the [recyclable materials](#b) shall be deemed to be a substantive provision. - (d) **Transactions involving scrap metal—** - (1) Transactions involving [scrap metal](#d-3) shall be deemed to be arranging for recycling if the [person](/usc/42/9601.md?p=21) who arranged for the transaction (by selling [recyclable material](#b) or otherwise arranging for the recycling of [recyclable material](#b)) can demonstrate by a preponderance of the evidence that at the time of the transaction— - (A) the [person](/usc/42/9601.md?p=21) met the criteria set forth in [subsection (c)](#c) with respect to the [scrap metal](#d-3); - (B) the [person](/usc/42/9601.md?p=21) was in compliance with any applicable regulations or [standards](/usc/42/1320d.md?p=7) regarding the storage, [transport](/usc/42/9601.md?p=26), management, or other activities associated with the recycling of [scrap metal](#d-3) that the [Administrator](/usc/42/9601.md?p=2) promulgates under the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6901](/usc/42/6901.md) et seq.] subsequent to November 29, 1999, and with regard to transactions occurring after the effective date of such regulations or [standards](/usc/42/1320d.md?p=7); and - (C) the [person](/usc/42/9601.md?p=21) did not melt the [scrap metal](#d-3) prior to the transaction. - (2) For purposes of [paragraph (1)(C)](#d-1-C), melting of [scrap metal](#d-3) does not include the thermal separation of 2 or more materials due to differences in their melting points (referred to as “sweating”). - (3) For purposes of this subsection, the term “scrap metal” means bits and pieces of metal parts (e.g., bars, turnings, rods, sheets, wire) or metal pieces that may be combined together with bolts or soldering (e.g., radiators, scrap automobiles, railroad box cars), which when worn or superfluous can be recycled, except for scrap metals that the [Administrator](/usc/42/9601.md?p=2) excludes from this definition by regulation. - (e) **Transactions involving batteries—** Transactions involving spent lead-acid batteries, spent nickel-cadmium batteries, or other spent batteries shall be deemed to be arranging for recycling if the [person](/usc/42/9601.md?p=21) who arranged for the transaction (by selling [recyclable material](#b) or otherwise arranging for the recycling of [recyclable material](#b)) can demonstrate by a preponderance of the evidence that at the time of the transaction— - (1) the [person](/usc/42/9601.md?p=21) met the criteria set forth in [subsection (c)](#c) with respect to the spent lead-acid batteries, spent nickel-cadmium batteries, or other spent batteries, but the [person](/usc/42/9601.md?p=21) did not recover the valuable components of such batteries; and - (2) - (A) with respect to transactions involving lead-acid batteries, the [person](/usc/42/9601.md?p=21) was in compliance with applicable Federal environmental regulations or [standards](/usc/42/1320d.md?p=7), and any amendments thereto, regarding the storage, [transport](/usc/42/9601.md?p=26), management, or other activities associated with the recycling of spent lead-acid batteries; - (B) with respect to transactions involving nickel-cadmium batteries, Federal environmental regulations or [standards](/usc/42/1320d.md?p=7) are in effect regarding the storage, [transport](/usc/42/9601.md?p=26), management, or other activities associated with the recycling of spent nickel-cadmium batteries, and the [person](/usc/42/9601.md?p=21) was in compliance with applicable regulations or [standards](/usc/42/1320d.md?p=7) or any amendments thereto; or - (C) with respect to transactions involving other spent batteries, Federal environmental regulations or [standards](/usc/42/1320d.md?p=7) are in effect regarding the storage, [transport](/usc/42/9601.md?p=26), management, or other activities associated with the recycling of such batteries, and the [person](/usc/42/9601.md?p=21) was in compliance with applicable regulations or [standards](/usc/42/1320d.md?p=7) or any amendments thereto. - (f) **Exclusions—** - (1) The exemptions set forth in subsections [(c)](#c), [(d)](#d), and [(e)](#e) shall not apply if— - (A) the [person](/usc/42/9601.md?p=21) had an objectively reasonable basis to believe at the time of the recycling transaction— - (i) that the [recyclable material](#b) would not be recycled; - (ii) that the [recyclable material](#b) would be burned as fuel, or for [energy](/usc/42/6311.md?p=7) recovery or incineration; or - (iii) for transactions occurring before 90 days after November 29, 1999, that the consuming [facility](/usc/42/9601.md?p=9) was not in compliance with a substantive (not procedural or administrative) provision of any Federal, [State](/usc/42/9601.md?p=27), or local environmental law or regulation, or compliance order or decree issued pursuant thereto, applicable to the handling, processing, reclamation, or other management activities associated with the [recyclable material](#b); - (B) the [person](/usc/42/9601.md?p=21) had reason to believe that [hazardous substances](/usc/42/1397h.md?p=c-4) had been added to the [recyclable material](#b) for purposes other than processing for recycling; or - (C) the [person](/usc/42/9601.md?p=21) failed to exercise reasonable care with respect to the management and handling of the [recyclable material](#b) (including adhering to customary industry [practices](/usc/42/17061.md?p=19) current at the time of the recycling transaction designed to minimize, through source control, contamination of the [recyclable material](#b) by [hazardous substances](/usc/42/1397h.md?p=c-4)). - (2) For purposes of this subsection, an objectively reasonable basis for belief shall be determined using criteria that include (but are not limited to) the size of the [person](/usc/42/9601.md?p=21)’s business, customary industry [practices](/usc/42/17061.md?p=19) (including customary industry [practices](/usc/42/17061.md?p=19) current at the time of the recycling transaction designed to minimize, through source control, contamination of the [recyclable material](#b) by [hazardous substances](/usc/42/1397h.md?p=c-4)), the price paid in the recycling transaction, and the ability of the [person](/usc/42/9601.md?p=21) to detect the nature of the consuming [facility](/usc/42/9601.md?p=9)’s operations concerning its handling, processing, reclamation, or other management activities associated with the [recyclable material](#b). - (3) For purposes of this subsection, a requirement to obtain a permit applicable to the handling, processing, reclamation, or other management activities associated with [recyclable material](#b) shall be deemed to be a substantive provision. - (g) **Effect on other liability—** Nothing in this section shall be deemed to affect the [liability](/usc/42/9601.md?p=32) of a [person](/usc/42/9601.md?p=21) under paragraph (1) or (2) of [section 9607(a) of this title](/usc/42/9607.md?p=a). - (h) **Regulations—** The [Administrator](/usc/42/9601.md?p=2) has the authority, under [section 9615 of this title](/usc/42/9615.md), to promulgate additional regulations concerning this section. - (i) **Effect on pending or concluded actions—** The exemptions provided in this section shall not affect any concluded judicial or administrative action or any pending judicial action initiated by the [United States](/usc/42/9601.md?p=27) prior to November 29, 1999. - (j) **Liability for attorney’s fees for certain actions—** Any [person](/usc/42/9601.md?p=21) who commences an action in contribution against a [person](/usc/42/9601.md?p=21) who is not [liable](/usc/42/9601.md?p=32) by operation of this section shall be [liable](/usc/42/9601.md?p=32) to that [person](/usc/42/9601.md?p=21) for all reasonable costs of defending that action, including all reasonable attorney’s and expert witness fees. - (k) **Relationship to liability under other laws—** Nothing in this section shall affect— - (1) [liability](/usc/42/9601.md?p=32) under any other Federal, [State](/usc/42/9601.md?p=27), or local statute or regulation promulgated pursuant to any such statute, including any requirements promulgated by the [Administrator](/usc/42/9601.md?p=2) under the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6901](/usc/42/6901.md) et seq.]; or - (2) the ability of the [Administrator](/usc/42/9601.md?p=2) to promulgate regulations under any other statute, including the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act. - (l) **Limitation on statutory construction—** Nothing in this section shall be construed to— - (1) affect any defenses or [liabilities](/usc/42/9601.md?p=32) of any [person](/usc/42/9601.md?p=21) to whom [subsection (a)(1)](#a-1) does not apply; or - (2) create any presumption of [liability](/usc/42/9601.md?p=32) against any [person](/usc/42/9601.md?p=21) to whom [subsection (a)(1)](#a-1) does not apply. # §9628. State response programs - (a) **Assistance to States—** - (1) **In general—** - (A) **States—** The [Administrator](/usc/42/9601.md?p=2) may award a grant to a [State](/usc/42/9601.md?p=27) or [Indian tribe](/usc/42/9601.md?p=36) that— - (i) has a [response](/usc/42/9601.md?p=25) [program](/usc/42/274l–1.md?p=4) that includes each of the elements, or is taking reasonable steps to include each of the elements, listed in [paragraph (2)](#a-2); or - (ii) is a party to a memorandum of [agreement](/usc/42/1320b–8.md?p=a-3-A) with the [Administrator](/usc/42/9601.md?p=2) for voluntary [response](/usc/42/9601.md?p=25) [programs](/usc/42/274l–1.md?p=4). - (B) **Use of grants by States—** - (i) **In general—** A [State](/usc/42/9601.md?p=27) or [Indian tribe](/usc/42/9601.md?p=36) may use a grant under this subsection to establish or enhance the [response](/usc/42/9601.md?p=25) [program](/usc/42/274l–1.md?p=4) of the [State](/usc/42/9601.md?p=27) or [Indian tribe](/usc/42/9601.md?p=36). - (ii) **Additional uses—** In addition to the uses under [clause (i)](#a-1-B-i), a [State](/usc/42/9601.md?p=27) or [Indian tribe](/usc/42/9601.md?p=36) may use a grant under this subsection to— - (I) capitalize a revolving loan [fund](/usc/42/9601.md?p=11) for brownfield remediation under [section 9604(k)(3) of this title](/usc/42/9604.md?p=k-3); - (II) purchase insurance or develop a risk sharing pool, an indemnity pool, or insurance mechanism to provide financing for [response](/usc/42/9601.md?p=25) actions under a [State](/usc/42/9601.md?p=27) [response](/usc/42/9601.md?p=25) [program](/usc/42/274l–1.md?p=4); or - (III) assist [small communities](#a-1-B-iv-II), [Indian tribes](/usc/42/9601.md?p=36), rural areas, or [disadvantaged areas](#a-1-B-iv-I) in carrying out activities described in [section 9604(k)(7)(A) of this title](/usc/42/9604.md?p=k-7-A) with respect to [brownfield sites](/usc/42/9601.md?p=39-A). - (iii) **Small communities, Indian tribes, rural areas, and disadvantaged areas—** - (I) **In general—** To make grants to [States](/usc/42/9601.md?p=27) or [Indian tribes](/usc/42/9601.md?p=36) under [clause (ii)(III)](#a-1-B-ii-III), the [Administrator](/usc/42/9601.md?p=2) may use, in addition to amounts available to carry out this subsection, not more than $1,500,000 of the amounts made available to carry out [section 9604(k)(7) of this title](/usc/42/9604.md?p=k-7) in each fiscal year. - (II) **Limitation—** Each grant made under [subclause (I)](#a-1-B-iii-I) may be not more than $20,000. - (III) **Inclusion in other grants—** The [Administrator](/usc/42/9601.md?p=2) may, at the request of a [State](/usc/42/9601.md?p=27) or [Indian tribe](/usc/42/9601.md?p=36), include a grant under this clause in any other grant to the [State](/usc/42/9601.md?p=27) or [Indian tribe](/usc/42/9601.md?p=36) made under this subsection. - (iv) **Definitions—** In this subparagraph: - (I) **Disadvantaged area—** The term “disadvantaged area” means a community with an annual median household [income](/usc/42/292s.md?p=c-4) that is less than 80 percent of the statewide annual median household [income](/usc/42/292s.md?p=c-4), as determined by the President based on the latest available decennial census. - (II) **Small community—** The term “small community” means a community with a population of not more than 15,000 individuals, as determined by the President based on the latest available decennial census. - (2) **Elements—** The elements of a [State](/usc/42/9601.md?p=27) or [Indian tribe](/usc/42/9601.md?p=36) [response](/usc/42/9601.md?p=25) [program](/usc/42/274l–1.md?p=4) referred to in [paragraph (1)(A)(i)](#a-1-A-i) are the following: - (A) Timely survey and [inventory](/usc/42/4370m.md?p=14) of [brownfield sites](/usc/42/9601.md?p=39-A) in the [State](/usc/42/9601.md?p=27). - (B) Oversight and enforcement authorities or other mechanisms, and resources, that are adequate to ensure that— - (i) a [response](/usc/42/9601.md?p=25) action will— - (I) protect human health and the [environment](/usc/42/9601.md?p=8); and - (II) be conducted in accordance with applicable Federal and [State](/usc/42/9601.md?p=27) law; and - (ii) if the [person](/usc/42/9601.md?p=21) conducting the [response](/usc/42/9601.md?p=25) action fails to complete the necessary [response](/usc/42/9601.md?p=25) activities, including operation and maintenance or long-term monitoring activities, the necessary [response](/usc/42/9601.md?p=25) activities are completed. - (C) Mechanisms and resources to provide meaningful opportunities for public participation, including— - (i) public access to documents that the [State](/usc/42/9601.md?p=27), [Indian tribe](/usc/42/9601.md?p=36), or party conducting the cleanup is relying on or developing in making cleanup decisions or conducting site activities; - (ii) prior notice and opportunity for comment on proposed cleanup plans and site activities; and - (iii) a mechanism by which— - (I) a [person](/usc/42/9601.md?p=21) that is or may be affected by a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4), [pollutant](/usc/42/1397h.md?p=c-4), or [contaminant](/usc/42/1397h.md?p=c-4) at a [brownfield site](/usc/42/9601.md?p=39-A) located in the community in which the [person](/usc/42/9601.md?p=21) works or resides may request the conduct of a site assessment; and - (II) an appropriate [State](/usc/42/9601.md?p=27) official shall consider and appropriately [respond](/usc/42/9601.md?p=25) to a request under [subclause (I)](#a-2-C-iii-I). - (D) Mechanisms for approval of a cleanup plan, and a requirement for verification by and certification or similar documentation from the [State](/usc/42/9601.md?p=27), an [Indian tribe](/usc/42/9601.md?p=36), or a licensed site professional to the [person](/usc/42/9601.md?p=21) conducting a [response](/usc/42/9601.md?p=25) action indicating that the [response](/usc/42/9601.md?p=25) is complete. - (3) **Funding—** There is authorized to be appropriated to carry out this subsection $50,000,000 for each of fiscal years 2019 through 2023. - (b) **Enforcement in cases of a release subject to State program—** - (1) **Enforcement—** - (A) **In general—** Except as provided in [subparagraph (B)](#b-1-B) and subject to [subparagraph (C)](#b-1-C), in the case of an [eligible response site](/usc/42/9601.md?p=41-B) at which— - (i) there is a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4), [pollutant](/usc/42/1397h.md?p=c-4), or [contaminant](/usc/42/1397h.md?p=c-4); and - (ii) a [person](/usc/42/9601.md?p=21) is conducting or has completed a [response](/usc/42/9601.md?p=25) action regarding the specific [release](/usc/42/9601.md?p=22) that is addressed by the [response](/usc/42/9601.md?p=25) action that is in compliance with the [State](/usc/42/9601.md?p=27) [program](/usc/42/274l–1.md?p=4) that specifically governs [response](/usc/42/9601.md?p=25) actions for the protection of public health and the [environment](/usc/42/9601.md?p=8), the President may not use authority under this chapter to take an administrative or judicial [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) under [section 9606(a) of this title](/usc/42/9606.md?p=a) or to take a judicial [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) to recover [response](/usc/42/9601.md?p=25) costs under [section 9607(a) of this title](/usc/42/9607.md?p=a) against the [person](/usc/42/9601.md?p=21) regarding the specific [release](/usc/42/9601.md?p=22) that is addressed by the [response](/usc/42/9601.md?p=25) action. - (B) **Exceptions—** The President may bring an administrative or judicial [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) under this chapter during or after completion of a [response](/usc/42/9601.md?p=25) action described in [subparagraph (A)](#b-1-A) with respect to a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) at an [eligible response site](/usc/42/9601.md?p=41-B) described in that subparagraph if— - (i) the [State](/usc/42/9601.md?p=27) requests that the President provide assistance in the performance of a [response](/usc/42/9601.md?p=25) action; - (ii) the [Administrator](/usc/42/9601.md?p=2) determines that contamination has migrated or will migrate across a [State](/usc/42/9601.md?p=27) line, resulting in the need for further [response](/usc/42/9601.md?p=25) action to protect human health or the [environment](/usc/42/9601.md?p=8), or the President determines that contamination has migrated or is likely to migrate onto property subject to the jurisdiction, custody, or control of a department, agency, or instrumentality of the [United States](/usc/42/9601.md?p=27) and may impact the authorized purposes of the Federal property; - (iii) after taking into consideration the [response](/usc/42/9601.md?p=25) activities already taken, the [Administrator](/usc/42/9601.md?p=2) determines that— - (I) a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) may present an imminent and substantial endangerment to public health or welfare or the [environment](/usc/42/9601.md?p=8); and - (II) additional [response](/usc/42/9601.md?p=25) actions are likely to be necessary to address, prevent, limit, or mitigate the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22); or - (iv) the [Administrator](/usc/42/9601.md?p=2), after consultation with the [State](/usc/42/9601.md?p=27), determines that information, that on the earlier of the date on which cleanup was approved or completed, was not known by the [State](/usc/42/9601.md?p=27), as recorded in documents prepared or relied on in selecting or conducting the cleanup, has been discovered regarding the contamination or conditions at a [facility](/usc/42/9601.md?p=9) such that the contamination or conditions at the [facility](/usc/42/9601.md?p=9) present a threat requiring further remediation to protect public health or welfare or the [environment](/usc/42/9601.md?p=8). Consultation with the [State](/usc/42/9601.md?p=27) shall not limit the ability of the [Administrator](/usc/42/9601.md?p=2) to make this determination. - (C) **Public record—** The limitations on the authority of the President under [subparagraph (A)](#b-1-A) apply only at sites in [States](/usc/42/9601.md?p=27) that maintain, update not less than annually, and make available to the public a record of sites, by name and location, at which [response](/usc/42/9601.md?p=25) actions have been completed in the previous year and are planned to be addressed under the [State](/usc/42/9601.md?p=27) [program](/usc/42/274l–1.md?p=4) that specifically governs [response](/usc/42/9601.md?p=25) actions for the protection of public health and the [environment](/usc/42/9601.md?p=8) in the upcoming year. The public record shall identify whether or not the site, on completion of the [response](/usc/42/9601.md?p=25) action, will be suitable for unrestricted use and, if not, shall identify the institutional controls relied on in the [remedy](/usc/42/9601.md?p=24). Each [State](/usc/42/9601.md?p=27) and tribe receiving financial assistance under [subsection (a)](#a) shall maintain and make available to the public a record of sites as provided in this paragraph. - (D) **EPA notification—** - (i) **In general—** In the case of an [eligible response site](/usc/42/9601.md?p=41-B) at which there is a [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4), [pollutant](/usc/42/1397h.md?p=c-4), or [contaminant](/usc/42/1397h.md?p=c-4) and for which the [Administrator](/usc/42/9601.md?p=2) intends to carry out an action that may be barred under [subparagraph (A)](#b-1-A), the [Administrator](/usc/42/9601.md?p=2) shall— - (I) notify the [State](/usc/42/9601.md?p=27) of the action the [Administrator](/usc/42/9601.md?p=2) intends to take; and - (II) - (aa) wait 48 hours for a reply from the [State](/usc/42/9601.md?p=27) under [clause (ii)](#b-1-D-ii); or - (bb) if the [State](/usc/42/9601.md?p=27) fails to reply to the notification or if the [Administrator](/usc/42/9601.md?p=2) makes a determination under [clause (iii)](#b-1-D-iii), take immediate action under that clause. - (ii) **State reply—** Not later than 48 hours after a [State](/usc/42/9601.md?p=27) receives notice from the [Administrator](/usc/42/9601.md?p=2) under [clause (i)](#b-1-D-i), the [State](/usc/42/9601.md?p=27) shall notify the [Administrator](/usc/42/9601.md?p=2) if— - (I) the [release](/usc/42/9601.md?p=22) at the [eligible response site](/usc/42/9601.md?p=41-B) is or has been subject to a cleanup conducted under a [State](/usc/42/9601.md?p=27) [program](/usc/42/274l–1.md?p=4); and - (II) the [State](/usc/42/9601.md?p=27) is planning to abate the [release](/usc/42/9601.md?p=22) or threatened [release](/usc/42/9601.md?p=22), any actions that are planned. - (iii) **Immediate Federal action—** The [Administrator](/usc/42/9601.md?p=2) may take action immediately after giving notification under [clause (i)](#b-1-D-i) without waiting for a [State](/usc/42/9601.md?p=27) reply under [clause (ii)](#b-1-D-ii) if the [Administrator](/usc/42/9601.md?p=2) determines that one or more exceptions under [subparagraph (B)](#b-1-B) are met. - (E) **Report to Congress—** Not later than 90 days after the date of initiation of any [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) by the President under clause [(ii)](#b-1-B-ii), [(iii)](#b-1-B-iii), or [(iv)](#b-1-B-iv) of subparagraph (B), the President shall submit to Congress a report describing the basis for the [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i), including specific references to the facts demonstrating that [enforcement action](/usc/42/247d–6d.md?p=c-5-B-i) is permitted under [subparagraph (B)](#b-1-B). - (2) **Savings provision—** - (A) **Costs incurred prior to limitations—** Nothing in [paragraph (1)](#b-1) precludes the President from seeking to recover costs incurred prior to January 11, 2002, or during a period in which the limitations of [paragraph (1)(A)](#b-1-A) were not applicable. - (B) **Effect on agreements between States and EPA—** Nothing in [paragraph (1)](#b-1)— - (i) modifies or otherwise affects a memorandum of [agreement](/usc/42/1320b–8.md?p=a-3-A), memorandum of understanding, or any similar [agreement](/usc/42/1320b–8.md?p=a-3-A) relating to this chapter between a [State agency](/usc/42/1396r–8.md?p=k-9) or an [Indian tribe](/usc/42/9601.md?p=36) and the [Administrator](/usc/42/9601.md?p=2) that is in effect on or before January 11, 2002 (which [agreement](/usc/42/1320b–8.md?p=a-3-A) shall remain in effect, subject to the terms of the [agreement](/usc/42/1320b–8.md?p=a-3-A)); or - (ii) limits the discretionary authority of the President to enter into or modify an [agreement](/usc/42/1320b–8.md?p=a-3-A) with a [State](/usc/42/9601.md?p=27), an [Indian tribe](/usc/42/9601.md?p=36), or any other [person](/usc/42/9601.md?p=21) relating to the implementation by the President of statutory authorities. - (3) **Effective date—** This subsection applies only to [response](/usc/42/9601.md?p=25) actions conducted after February 15, 2001. - (c) **Effect on Federal laws—** Nothing in this section affects any [liability](/usc/42/9601.md?p=32) or [response](/usc/42/9601.md?p=25) authority under any Federal law, including— - (1) this chapter, except as provided in [subsection (b)](#b); - (2) the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act ([42 U.S.C. 6901](/usc/42/6901.md) et seq.); - (3) the Federal Water Pollution Control Act ([33 U.S.C. 1251](/usc/33/1251.md) et seq.); - (4) the Toxic Substances Control Act ([15 U.S.C. 2601](/usc/15/2601.md) et seq.); and - (5) the Safe Drinking Water Act ([42 U.S.C. 300f](/usc/42/300f.md) et seq.). # [§§9631 to 9633. Repealed. Pub. L. 99–499, title V, § 517(c)(1), Oct. 17, 1986, 100 Stat. 1774 — repealed] # [§9641. Repealed. Pub. L. 99–499, title V, § 514(b), Oct. 17, 1986, 100 Stat. 1767 — repealed] # §9651. Reports and studies - (a) **Implementation experiences; identification and disposal of waste—** - (1) The President shall submit to the Congress, within four years after December 11, 1980, a comprehensive report on experience with the implementation of this chapter including, but not limited to— - (A) the extent to which the chapter and [Fund](/usc/42/12854.md?p=3) are effective in enabling Government to respond to and mitigate the effects of [releases](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4); - (B) a summary of past receipts and disbursements from the [Fund](/usc/42/12854.md?p=3); - (C) a projection of any future funding needs remaining after the expiration of authority to collect taxes, and of the threat to public health, welfare, and the environment posed by the projected [releases](/usc/42/9601.md?p=22) which create any such needs; - (D) the record and experience of the [Fund](/usc/42/12854.md?p=3) in recovering [Fund](/usc/42/12854.md?p=3) disbursements from liable parties; - (E) the record of [State](/usc/42/201.md?p=f) participation in the system of response, liability, and compensation established by this chapter; - (F) the impact of the taxes imposed by subchapter II[^1] of this chapter on the Nation’s balance of trade with other countries; - (G) an assessment of the feasibility and desirability of a schedule of taxes which would take into account one or more of the following: the likelihood of a [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4), the degree of [hazard](/usc/42/5165f.md?p=a-3) and risk of harm to public health, welfare, and the environment resulting from any such [release](/usc/42/9601.md?p=22), incentives to proper handling, recycling, incineration, and neutralization of hazardous wastes, and disincentives to improper or illegal handling or [disposal](/usc/42/2021b.md?p=7) of hazardous materials, administrative and reporting burdens on Government and industry, and the extent to which the tax burden falls on the substances and parties which create the problems addressed by this chapter. In preparing the report, the President shall consult with appropriate Federal, [State](/usc/42/201.md?p=f), and local agencies, affected industries and [claimants](/usc/42/9601.md?p=5), and such other interested parties as he may find useful. Based upon the analyses and consultation required by this subsection, the President shall also include in the report any recommendations for legislative changes he may deem necessary for the better effectuation of the purposes of this chapter, including but not limited to recommendations concerning [authorization](/usc/42/4370m.md?p=3) levels, taxes, [State](/usc/42/201.md?p=f) participation, liability and liability limits, and financial responsibility provisions for the Response [Trust](/usc/42/12854.md?p=6) [Fund](/usc/42/12854.md?p=3) and the Post-closure Liability [Trust](/usc/42/12854.md?p=6) [Fund](/usc/42/12854.md?p=3); - (H) an exemption from or an increase in the substances or the amount of taxes imposed by [section 4661 of title 26](/usc/26/4661.md) for copper, lead, and zinc oxide, and for feedstocks when used in the [manufacture](/usc/42/300aa–33.md?p=3) and production of fertilizers, based upon the expenditure experience of the Response [Trust](/usc/42/12854.md?p=6) [Fund](/usc/42/12854.md?p=3); - (I) the economic impact of taxing coal-derived substances and recycled metals. - (2) The [Administrator](/usc/42/4005.md?p=1) of the Environmental Protection Agency (in consultation with the [Secretary](/usc/42/242q–4.md?p=2) of the Treasury) shall submit to the Congress (i) within four years after December 11, 1980, a report identifying additional wastes designated by rule as hazardous after the effective date of this chapter and pursuant to section 3001 of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md)] and recommendations on appropriate tax rates for such wastes for the Post-closure Liability [Trust](/usc/42/12854.md?p=6) [Fund](/usc/42/12854.md?p=3). The report shall, in addition, recommend a tax rate, considering the quantity and potential danger to human health and the environment posed by the [disposal](/usc/42/2021b.md?p=7) of any wastes which the [Administrator](/usc/42/4005.md?p=1), pursuant to subsection 3001(b)(2)(B) and subsection 3001(b)(3)(A) of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act of 1980 [[42 U.S.C. 6921(b)(2)(B)](/usc/42/6921.md?p=b-2-B) and 6921(b)(3)(A)], has determined should be subject to regulation under subtitle C of such Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq.], (ii) within three years after December 11, 1980, a report on the necessity for and the adequacy of the revenue raised, in relation to estimated future requirements, of the Post-closure Liability [Trust](/usc/42/12854.md?p=6) [Fund](/usc/42/12854.md?p=3). - (b) **Private insurance protection—** The President shall conduct a study to determine (1) whether adequate private insurance protection is available on reasonable terms and conditions to the [owners](/usc/42/13641.md?p=4) and operators of vessels and [facilities](/usc/42/11049.md?p=4) subject to liability under [section 9607 of this title](/usc/42/9607.md), and (2) whether the market for such insurance is sufficiently competitive to assure purchasers of features such as a reasonable range of deductibles, coinsurance provisions, and exclusions. The President shall submit the results of his study, together with his recommendations, within two years of December 11, 1980, and shall submit an interim report on his study within one year of December 11, 1980. - (c) **Regulations respecting assessment of damages to natural resources—** - (1) The President, acting through Federal officials designated by the [National Contingency Plan](/usc/42/9601.md?p=31) published under [section 9605 of this title](/usc/42/9605.md), shall study and, not later than two years after December 11, 1980, shall promulgate regulations for the assessment of [damages](/usc/42/9601.md?p=6) for injury to, destruction of, or loss of natural resources resulting from a [release](/usc/42/9601.md?p=22) of oil or a [hazardous substance](/usc/42/1397h.md?p=c-4) for the purposes of this chapter and section [1321(f)(4)](/usc/33/1321.md?p=f-4) and [(5)](/usc/33/1321.md?p=f-5) of title 33. Notwithstanding the failure of the President to promulgate the regulations required under this subsection on the required date, the President shall promulgate such regulations not later than 6 months after October 17, 1986. - (2) Such regulations shall specify (A) [standard](/usc/42/1320d.md?p=7) procedures for simplified assessments requiring minimal field observation, including establishing measures of [damages](/usc/42/9601.md?p=6) based on [units](/usc/42/1395w–114b.md?p=g-2) of discharge or [release](/usc/42/9601.md?p=22) or [units](/usc/42/1395w–114b.md?p=g-2) of affected area, and (B) alternative protocols for conducting assessments in individual cases to determine the type and extent of short- and long-term injury, destruction, or loss. Such regulations shall identify the best available procedures to determine such [damages](/usc/42/9601.md?p=6), including both direct and indirect injury, destruction, or loss and shall take into consideration factors including, but not limited to, replacement value, use value, and ability of the ecosystem or resource to recover. - (3) Such regulations shall be reviewed and revised as appropriate every two years. - (d) **Issues, alternatives, and policy considerations involving selection of locations for waste treatment, storage, and disposal facilities—** The [Administrator](/usc/42/4005.md?p=1) of the Environmental Protection Agency shall, in consultation with other Federal agencies and appropriate [representatives](/usc/42/3058f.md?p=5) of [State](/usc/42/201.md?p=f) and [local governments](/usc/42/8401a.md) and non­governmental agencies, conduct a study and report to the Congress within two years of December 11, 1980, on the issues, alternatives, and policy considerations involved in the selection of locations for hazardous waste [treatment](/usc/42/11851.md?p=11), storage, and [disposal](/usc/42/2021b.md?p=7) [facilities](/usc/42/11049.md?p=4). This study shall include— - (A) an assessment of current and projected [treatment](/usc/42/11851.md?p=11), storage, and [disposal](/usc/42/2021b.md?p=7) capacity needs and shortfalls for hazardous waste by management [category](/usc/42/1395w–4.md?p=j-1) on a [State](/usc/42/201.md?p=f)-by-[State](/usc/42/201.md?p=f) basis; - (B) an evaluation of the appropriateness of a regional approach to siting and designing hazardous waste management [facilities](/usc/42/11049.md?p=4) and the identification of hazardous waste management regions, interstate or intrastate, or both, with similar hazardous waste management needs; - (C) solicitation and analysis of proposals for the [construction](/usc/42/7479.md?p=2-C) and operation of hazardous waste management [facilities](/usc/42/11049.md?p=4) by nongovernmental entities, except that no proposal solicited under terms of this subsection shall be analyzed if it involves cost to the [United States](/usc/42/403.md?p=k) Government or fails to comply with the requirements of subtitle C of the [Solid Waste](/usc/42/7546.md?p=a-1) Disposal Act [[42 U.S.C. 6921](/usc/42/6921.md) et seq.] and other applicable provisions of law; - (D) recommendations on the appropriate balance between public and private sector involvement in the siting, design, and operation of new hazardous waste management [facilities](/usc/42/11049.md?p=4); - (E) documentation of the major reasons for public opposition to new hazardous waste management [facilities](/usc/42/11049.md?p=4); and - (F) an evaluation of the various options for overcoming obstacles to siting new [facilities](/usc/42/11049.md?p=4), including needed legislation for implementing the most suitable option or options. - (e) **Adequacy of existing common law and statutory remedies—** - (1) In order to determine the adequacy of existing common law and statutory remedies in providing legal redress for harm to man and the environment caused by the [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4) into the environment, there shall be submitted to the Congress a study within twelve months of December 11, 1980. - (2) This study shall be conducted with the assistance of the American Bar Association, the American Law Institute, the Association of American Trial Lawyers, and the National Association of [State](/usc/42/201.md?p=f) Attorneys General with the President of each entity selecting three members from each organization to conduct the study. The study chairman and one reporter shall be elected from among the twelve members of the study group. - (3) As part of their review of the adequacy of existing common law and statutory remedies, the study group shall evaluate the following: - (A) the nature, adequacy, and availability of existing remedies under present law in compensating for harm to man from the [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4); - (B) the nature of barriers to recovery (particularly with respect to burdens of going forward and of proof and relevancy) and the role such barriers play in the legal system; - (C) the scope of the evidentiary burdens placed on the plaintiff in proving harm from the [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4), particularly in light of the scientific uncertainty over causation with respect to— - (i) carcinogens, mutagens, and teratogens, and - (ii) the human health effects of exposure to low doses of [hazardous substances](/usc/42/1397h.md?p=c-4) over long periods of time; - (D) the nature and adequacy of existing remedies under present law in providing compensation for [damages](/usc/42/9601.md?p=6) to natural resources from the [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4); - (E) the scope of liability under existing law and the consequences, particularly with respect to obtaining insurance, of any changes in such liability; - (F) barriers to recovery posed by existing statutes of limitations. - (4) The report shall be submitted to the Congress with appropriate recommendations. Such recommendations shall explicitly address— - (A) the need for revisions in existing statutory or common law, and - (B) whether such revisions should take the form of Federal statutes or the development of a model code which is recommended for adoption by the [States](/usc/42/201.md?p=f). - (5) The [Fund](/usc/42/12854.md?p=3) shall pay administrative expenses incurred for the study. No expenses shall be available to pay compensation, except expenses on a per diem basis for the one reporter, but in no case shall the total expenses of the study exceed $300,000. - (f) **Modification of national contingency plan—** The President, acting through the [Administrator](/usc/42/4005.md?p=1) of the Environmental Protection Agency, the [Secretary](/usc/42/242q–4.md?p=2) of Transportation, the [Administrator](/usc/42/4005.md?p=1) of the Occupational Safety and Health Administration, and the [Director](/usc/42/5061.md?p=1) of the National Institute for Occupational Safety and Health shall study and, not later than two years after December 11, 1980, shall modify the [national contingency plan](/usc/42/9601.md?p=31) to provide for the protection of the health and safety of [employees](/usc/42/1320a–7h.md?p=e-7) involved in response actions. - (g) **Insurability study—** - (1) **Study by Comptroller General—** The Comptroller General of the [United States](/usc/42/403.md?p=k), in consultation with the [persons](/usc/42/1320a–7k.md?p=d-4-C-i) described in [paragraph (2)](#g-2), shall undertake a study to determine the insurability, and effects on the [standard](/usc/42/1320d.md?p=7) of care, of the liability of each of the following: - (A) [Persons](/usc/42/1320a–7k.md?p=d-4-C-i) who [generate](/usc/42/2021b.md?p=8) [hazardous substances](/usc/42/1397h.md?p=c-4): liability for costs and [damages](/usc/42/9601.md?p=6) under this chapter. - (B) [Persons](/usc/42/1320a–7k.md?p=d-4-C-i) who own or operate [facilities](/usc/42/11049.md?p=4): liability for costs and [damages](/usc/42/9601.md?p=6) under this chapter. - (C) [Persons](/usc/42/1320a–7k.md?p=d-4-C-i) liable for injury to [persons](/usc/42/1320a–7k.md?p=d-4-C-i) or property caused by the [release](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4) into the environment. - (2) **Consultation—** In conducting the study under this subsection, the Comptroller General shall consult with the following: - (A) [Representatives](/usc/42/3058f.md?p=5) of the [Administrator](/usc/42/4005.md?p=1). - (B) [Representatives](/usc/42/3058f.md?p=5) of [persons](/usc/42/1320a–7k.md?p=d-4-C-i) described in [subparagraphs (A) through (C)](#g-2-A..g-2-C) of the preceding paragraph. - (C) [Representatives](/usc/42/3058f.md?p=5) (i) of groups or organizations comprised generally of [persons](/usc/42/1320a–7k.md?p=d-4-C-i) adversely affected by [releases](/usc/42/9601.md?p=22) or threatened [releases](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4) and (ii) of groups organized for protecting the interests of consumers. - (D) [Representatives](/usc/42/3058f.md?p=5) of property and casualty insurers. - (E) [Representatives](/usc/42/3058f.md?p=5) of reinsurers. - (F) [Persons](/usc/42/1320a–7k.md?p=d-4-C-i) responsible for the regulation of insurance at the [State](/usc/42/201.md?p=f) level. - (3) **Items evaluated—** The study under this section shall include, among other matters, an evaluation of the following: - (A) Current economic conditions in, and the future outlook for, the commercial market for insurance and reinsurance. - (B) Current trends in statutory and common law remedies. - (C) The impact of possible changes in traditional [standards](/usc/42/1320d.md?p=7) of liability, proof, evidence, and [damages](/usc/42/9601.md?p=6) on existing statutory and common law remedies. - (D) The effect of the [standard](/usc/42/1320d.md?p=7) of liability and extent of the [persons](/usc/42/1320a–7k.md?p=d-4-C-i) upon whom it is imposed under this chapter on the protection of human health and the environment and on the availability, underwriting, and pricing of insurance coverage. - (E) Current trends, if any, in the judicial interpretation and [construction](/usc/42/7479.md?p=2-C) of applicable insurance contracts, together with the degree to which amendments in the language of such contracts and the description of the risks assumed, could affect such trends. - (F) The frequency and severity of a [representative](/usc/42/3058f.md?p=5) sample of [claims](/usc/42/1320a–7a.md?p=i-2) closed during the calendar year immediately preceding October 17, 1986. - (G) Impediments to the acquisition of insurance or other means of obtaining liability coverage other than those referred to in the preceding subparagraphs. - (H) The effects of the [standards](/usc/42/1320d.md?p=7) of liability and financial responsibility requirements imposed pursuant to this chapter on the cost of, and incentives for, developing and demonstrating alternative and innovative [treatment](/usc/42/11851.md?p=11) technologies, as well as waste generation minimization. - (4) **Submission—** The Comptroller General shall submit a report on the results of the study to Congress with appropriate recommendations within 12 months after October 17, 1986. # §9652. Effective dates; savings provisions - (a) Unless otherwise provided, all provisions of this chapter shall be effective on December 11, 1980. - (b) Any regulation issued pursuant to any provisions of [section 1321 of title 33](/usc/33/1321.md) which is repealed or superseded by this chapter and which is in effect on the date immediately preceding the effective date of this chapter shall be deemed to be a regulation issued pursuant to the authority of this chapter and shall remain in full force and effect unless or until superseded by new regulations issued thereunder. - (c) Any regulation— - (1) respecting financial responsibility, - (2) issued pursuant to any provision of law repealed or superseded by this chapter, and - (3) in effect on the date immediately preceding the effective date of this chapter shall be deemed to be a regulation issued pursuant to the authority of this chapter and shall remain in full force and effect unless or until superseded by new regulations issued thereunder. - (d) Nothing in this chapter shall affect or modify in any way the obligations or liabilities of any [person](/usc/42/1320a–7k.md?p=d-4-C-i) under other Federal or [State](/usc/42/201.md?p=f) law, including common law, with respect to [releases](/usc/42/9601.md?p=22) of [hazardous substances](/usc/42/1397h.md?p=c-4) or other [pollutants](/usc/42/1397h.md?p=c-4) or [contaminants](/usc/42/1397h.md?p=c-4). The provisions of this chapter shall not be considered, interpreted, or construed in any way as reflecting a determination, in part or whole, of policy regarding the inapplicability of strict liability, or strict liability doctrines, to activities relating to [hazardous substances](/usc/42/1397h.md?p=c-4), [pollutants](/usc/42/1397h.md?p=c-4), or [contaminants](/usc/42/1397h.md?p=c-4) or other such activities. # [§9653. Repealed. Pub. L. 99–499, title V, § 511(b), Oct. 17, 1986, 100 Stat. 1761 — repealed] # §9654. Applicability of Federal water pollution control funding, etc., provisions - (a) Omitted - (b) One-half of the unobligated balance remaining before December 11, 1980, under subsection (k)[^1] of [section 1321 of title 33](/usc/33/1321.md) and all sums appropriated under [section 1364(b)](/usc/33/1364.md?p=b)[^1] of [title 33](/usc/33.md) shall be transferred to the [Fund](/usc/42/12854.md?p=3) established under subchapter II[^1] of this chapter. - (c) In any case in which any provision of [section 1321 of title 33](/usc/33/1321.md) is determined to be in conflict with any provisions of this chapter, the provisions of this chapter shall apply. # §9655. Legislative veto of rule or regulation - (a) **Transmission to Congress upon promulgation or repromulgation of rule or regulation; disapproval procedures—** Notwithstanding any other provision of law, simultaneously with promulgation or repromulgation of any rule or regulation under authority of subchapter I of this chapter, the head of the department, agency, or instrumentality promulgating such rule or regulation shall transmit a copy thereof to the [Secretary](/usc/42/242q–4.md?p=2) of the Senate and the Clerk of the House of [Representatives](/usc/42/3058f.md?p=5). Except as provided in [subsection (b)](#b) of this section, the rule or regulation shall not become effective, if— - (1) within ninety calendar days of continuous session of Congress after the date of promulgation, both Houses of Congress adopt a concurrent resolution, the matter after the resolving clause of which is as follows: “That Congress disapproves the rule or regulation promulgated by the dealing with the matter of , which rule or regulation was transmitted to Congress on .”, the blank spaces therein being appropriately filled; or - (2) within sixty calendar days of continuous session of Congress after the date of promulgation, one House of Congress adopts such a concurrent resolution and transmits such resolution to the other House, and such resolution is not disapproved by such other House within thirty calendar days of continuous session of Congress after such transmittal. - (b) **Approval; effective dates—** If, at the end of sixty calendar days of continuous session of Congress after the date of promulgation of a rule or regulation, no committee of either House of Congress has reported or been discharged from further consideration of a concurrent resolution disapproving the rule or regulation and neither House has adopted such a resolution, the rule or regulation may go into effect immediately. If, within such sixty calendar days, such a committee has reported or been discharged from further consideration of such a resolution, or either House has adopted such a resolution, the rule or regulation may go into effect not sooner than ninety calendar days of continuous session of Congress after such rule is prescribed unless disapproved as provided in [subsection (a)](#a) of this section. - (c) **Sessions of Congress as applicable—** For purposes of subsections [(a)](#a) and [(b)](#b) of this section— - (1) continuity of session is broken only by an adjournment of Congress sine die; and - (2) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of thirty, sixty, and ninety calendar days of continuous session of Congress. - (d) **Congressional inaction on, or rejection of, resolution of disapproval—** Congressional inaction on, or rejection of, a resolution of disapproval shall not be deemed an expression of approval of such rule or regulation. # §9656. Transportation of hazardous substances; listing as hazardous material; liability for release - (a) Each [hazardous substance](/usc/42/1397h.md?p=c-4) which is listed or designated as provided in [section 9601(14) of this title](/usc/42/9601.md?p=14) shall, within 30 days after October 17, 1986, or at the time of such listing or designation, whichever is later, be listed and regulated as a hazardous material under [chapter 51](/usc/49/chstIII-ch51.md) of title 49. - (b) A common or contract carrier shall be liable under other law in lieu of [section 9607 of this title](/usc/42/9607.md) for [damages](/usc/42/9601.md?p=6) or remedial action resulting from the [release](/usc/42/9601.md?p=22) of a [hazardous substance](/usc/42/1397h.md?p=c-4) during the course of transportation which commenced prior to the effective date of the listing and regulation of such substance as a hazardous material under [chapter 51](/usc/49/chstIII-ch51.md) of title 49, or for substances listed pursuant to [subsection (a)](#a) of this section, prior to the effective date of such listing: Provided, however, That this subsection shall not apply where such a carrier can demonstrate that he did not have actual knowledge of the identity or nature of the substance released. # §9657. Separability; contribution If any provision of this chapter, or the application of any provision of this chapter to any [person](/usc/42/1320a–7k.md?p=d-4-C-i) or circumstance, is held invalid, the application of such provision to other [persons](/usc/42/1320a–7k.md?p=d-4-C-i) or circumstances and the remainder of this chapter shall not be affected thereby. If an administrative settlement under [section 9622 of this title](/usc/42/9622.md) has the effect of limiting any [person](/usc/42/1320a–7k.md?p=d-4-C-i)’s right to obtain contribution from any party to such settlement, and if the effect of such limitation would constitute a taking without just compensation in [violation](/usc/42/2000e–16a.md?p=c) of the fifth amendment of the Constitution of the [United States](/usc/42/403.md?p=k), such [person](/usc/42/1320a–7k.md?p=d-4-C-i) shall not be entitled, under other laws of the [United States](/usc/42/403.md?p=k), to recover compensation from the [United States](/usc/42/403.md?p=k) for such taking, but in any such case, such limitation on the right to obtain contribution shall be treated as having no force and effect.