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(continued)
the environment;
(ii) requires that the recipient use the grant or loan
exclusively for purposes specified in paragraph (2) or (3),
as applicable;
(iii) in the case of an application by an eligible entity
under paragraph (3)(A), requires the eligible entity to pay a
matching share (which may be in the form of a contribution of
labor, material, or services) of at least 20 percent, from
non-Federal sources of funding, unless the Administrator
determines that the matching share would place an undue
hardship on the eligible entity; and
(iv) contains such other terms and conditions as the
Administrator determines to be necessary to carry out this
subsection.
(10) Facility other than brownfield site
The fact that a facility may not be a brownfield site within
the meaning of section 9601(39)(A) of this title has no effect on
the eligibility of the facility for assistance under any other
provision of Federal law.
(11) Effect on Federal laws
Nothing in this subsection affects any liability or response
authority under any Federal law, including -
(A) this chapter (including the last sentence of section
9601(14) of this title);
(B) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);
(C) the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.);
(D) the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.); and
(E) the Safe Drinking Water Act (42 U.S.C. 300f et seq.).
(12) Funding
(A) Authorization of appropriations
There is authorized to be appropriated to carry out this
subsection $200,000,000 for each of fiscal years 2002 through
2006.
(B) Use of certain funds
Of the amount made available under subparagraph (A),
$50,000,000, or, if the amount made available is less than
$200,000,000, 25 percent of the amount made available, shall be
used for site characterization, assessment, and remediation of
facilities described in section 9601(39)(D)(ii)(II) of this
title.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 104, Dec. 11, 1980, 94 Stat. 2774;
Pub. L. 99-499, title I, Secs. 104, 110, title II, Sec. 207(b),
Oct. 17, 1986, 100 Stat. 1617, 1636, 1705; Pub. L. 99-514, Sec. 2,
Oct. 22, 1986, 100 Stat. 2095; Pub. L. 102-531, title III, Sec.
312(h), Oct. 27, 1992, 106 Stat. 3506; Pub. L. 107-118, title II,
Sec. 211(b), Jan. 11, 2002, 115 Stat. 2362.)
-REFTEXT-
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsecs. (c)(3),
(9)(D), (i)(10)(E), and (k)(11)(B), is title II of Pub. L. 89-272,
Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L.
94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795, which is classified
generally to chapter 82 (Sec. 6901 et seq.) of this title. Subtitle
C of the Act is classified generally to subchapter III (Sec. 6921
et seq.) of chapter 82 of this title. For complete classification
of this Act to the Code, see Short Title note set out under section
6901 of this title and Tables.
Title III of the Amendments and Reauthorization Act of 1986,
referred to in subsec. (e)(7)(E)(i), probably means title III of
the Superfund Amendments and Reauthorization Act of 1986, Pub. L.
99-499, Oct. 17, 1986, 100 Stat. 1728, known as the Emergency
Planning and Community Right-To-Know Act of 1986, which is
classified generally to chapter 116 (Sec. 11001 et seq.) of this
title. For complete classification of title III to the Code, see
Short Title note set out under section 11001 of this title and
Tables.
Reorganization Plan Numbered 14 of 1950, referred to in subsec.
(g)(2), is set out in the Appendix to Title 5, Government
Organization and Employees.
The Toxic Substances Control Act, referred to in subsecs.
(i)(5)(C), (D) and (k)(11)(D), is Pub. L. 94-469, Oct. 11, 1976, 90
Stat. 2003, as amended, which is classified generally to chapter 53
(Sec. 2601 et seq.) of Title 15, Commerce and Trade. For complete
classification of this Act to the Code, see Short Title note set
out under section 2601 of Title 15 and Tables.
The Federal Insecticide, Fungicide, and Rodenticide Act, referred
to in subsec. (i)(5)(C), (D), is act June 25, 1947, ch. 125, as
amended generally by Pub. L. 92-516, Oct. 21, 1972, 86 Stat. 973,
which is classified generally to subchapter II (Sec. 136 et seq.)
of chapter 6 of Title 7, Agriculture. For complete classification
of this Act to the Code, see Short Title note set out under section
136 of Title 7 and Tables.
The Alaska Native Claims Settlement Act, referred to in subsec.
(k)(1)(H), is Pub. L. 92-203, Dec. 18, 1971, 85 Stat. 688, as
amended, which is classified generally to chapter 33 (Sec. 1601 et
seq.) of Title 43, Public Lands. For complete classification of
this Act to the Code, see Short Title note set out under section
1601 of Title 43 and Tables.
The Federal Water Pollution Control Act, referred to in subsec.
(k)(11)(C), is act June 30, 1948, ch. 758, as amended generally by
Pub. L. 92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 816, which is
classified generally to chapter 26 (Sec. 1251 et seq.) of Title 33,
Navigation and Navigable Waters. For complete classification of
this Act to the Code, see Short Title note set out under section
1251 of Title 33 and Tables.
The Safe Drinking Water Act, referred to in subsec. (k)(11)(E),
is title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L.
93-523, Sec. 2(a), 88 Stat. 1660, as amended, which is classified
generally to subchapter XII (Sec. 300f et seq.) of chapter 6A of
this title. For complete classification of this Act to the Code,
see Short Title note set out under section 201 of this title and
Tables.
-COD-
CODIFICATION
In subsec. (g)(1), "sections 3141-3144, 3146, and 3147 of title
40" substituted for "the Davis-Bacon Act" and, in subsec. (g)(2),
"section 3145 of title 40" substituted for "section 276c of title
40 of the United States Code", on authority of Pub. L. 107-217,
Sec. 5(c), Aug. 21, 2002, 116 Stat. 1303, the first section of
which enacted Title 40, Public Buildings, Property, and Works.
-MISC1-
AMENDMENTS
2002 - Subsec. (k). Pub. L. 107-118 added subsec. (k).
1992 - Subsec. (i)(1). Pub. L. 102-531 substituted "Centers for
Disease Control and Prevention" for "Centers for Disease Control".
1986 - Subsec. (a)(1). Pub. L. 99-499, Sec. 104(a), substituted
provisions authorizing the President to allow owner or operator of
facility or vessel or any other responsible party to carry out
action, conduct the remedial investigation, or conduct feasibility
study under section 9622 of this title, specifying conditions under
which a remedial investigation or feasibility study would be
authorized, providing for treatment of potentially responsible
parties, and requiring President to give primary attention to those
releases which the President deems may present a public health
threat, for ", unless the President determines that such removal
and remedial action will be done properly by the owner or operator
of the vessel or facility from which the release or threat of
release emanates, or by any other responsible party."
Subsec. (a)(2). Pub. L. 99-499, Sec. 104(b), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: "For the
purposes of this section, 'pollutant or contaminant' shall include,
but not be limited to, any element, substance, compound, or
mixture, including disease-causing agents, which after release into
the environment and upon exposure, ingestion, inhalation, or
assimilation into any organism, either directly from the
environment or indirectly by ingestion through food chains, will or
may reasonably be anticipated to cause death, disease, behavioral
abnormalities, cancer, genetic mutation, physiological malfunctions
(including malfunctions in reproduction) or physical deformations,
in such organisms or their offspring. The term does not include
petroleum, including crude oil and any fraction thereof which is
not otherwise specifically listed or designated as hazardous
substances under section 9601(14)(A) through (F) of this title, nor
does it include natural gas, liquefied natural gas, or synthetic
gas of pipeline quality (or mixtures of natural gas and such
synthetic gas)."
Subsec. (a)(3), (4). Pub. L. 99-499, Sec. 104(c), added pars. (3)
and (4).
Subsec. (b). Pub. L. 99-499, Sec. 104(d), designated existing
provisions as par. (1), inserted par. (1) heading, and added par.
(2).
Subsec. (c)(1). Pub. L. 99-499, Sec. 104(e)(1), substituted
"$2,000,000" for "$1,000,000" and "12 months" for "six months".
Subsec. (c)(1)(C). Pub. L. 99-499, Sec. 104(e)(2), added cl. (C).
Subsec. (c)(3). Pub. L. 99-499, Secs. 104(f), 207(b), substituted
text of cl. (C)(ii) and sentence providing that "facility" does not
include navigable waters or beds underlying those waters for "(ii)
at least 50 per centum or such greater amount as the President may
determine appropriate, taking into account the degree of
responsibility of the State or political subdivision, of any sums
expended in response to a release at a facility that was owned at
the time of any disposal of hazardous substances therein by the
State or a political subdivision thereof. The President shall grant
the State a credit against the share of the costs for which it is
responsible under this paragraph for any documented direct
out-of-pocket non-Federal funds expended or obligated by the State
or a political subdivision thereof after January 1, 1978, and
before December 11, 1980, for cost-eligible response actions and
claims for damages compensable under section 9611 of this title
relating to the specific release in question: Provided, however,
That in no event shall the amount of the credit granted exceed the
total response costs relating to the release." and inserted
provisions relating to remedial action to be taken on land or water
held by an Indian tribe, held by the United States in trust for
Indians, held by a member of an Indian Tribe (if such land or water
is subject to a trust restriction on alienation), or otherwise
within the borders of an Indian reservation.
Subsec. (c)(4). Pub. L. 99-499, Sec. 104(g), amended par. (4)
generally. Prior to amendment, par. (4) read as follows: "The
President shall select appropriate remedial actions determined to
be necessary to carry out this section which are to the extent
practicable in accordance with the national contingency plan and
which provide for that cost-effective response which provides a
balance between the need for protection of public health and
welfare and the environment at the facility under consideration,
and the availability of amounts from the Fund established under
subchapter II of this chapter to respond to other sites which
present or may present a threat to public health or welfare or the
environment, taking into consideration the need for immediate
action."
Subsec. (c)(5). Pub. L. 99-499, Sec. 104(h), added par. (5).
Subsec. (c)(6). Pub. L. 99-499, Sec. 104(i), added par. (6).
Subsec. (c)(7). Pub. L. 99-514 substituted "Internal Revenue Code
of 1986" for "Internal Revenue Code of 1954", which for purposes of
codification was translated as "title 26" thus requiring no change
in text.
Pub. L. 99-499, Sec. 104(i), added par. (7).
Subsec. (c)(8). Pub. L. 99-499, Sec. 104(j), added par. (8).
Subsec. (c)(9). Pub. L. 99-499, Sec. 104(k), added par. (9).
Subsec. (d)(1). Pub. L. 99-499, Sec. 104(l), amended par. (1)
generally. Prior to amendment, par. (1) read as follows: "Where the
President determines that a State or political subdivision thereof
has the capability to carry out any or all of the actions
authorized in this section, the President may, in his discretion,
enter into a contract or cooperative agreement with such State or
political subdivision to take such actions in accordance with
criteria and priorities established pursuant to section 9605(8) of
this title and to be reimbursed for the reasonable response costs
thereof from the Fund. Any contract made hereunder shall be subject
to the cost-sharing provisions of subsection (c) of this section."
Subsec. (e)(1). Pub. L. 99-499, Sec. 104(m), added par. (1), and
struck out former par. (1) which provided for access to, and
copying of, records relating to covered substances, and entry by
officers, employees or representatives of the President or a State
into places where hazardous substances were or had been generated,
stored, treated or disposed of, or transported from, and inspection
and obtaining of samples of such substances and samples of
containers or labeling for such substances.
Subsec. (e)(2) to (6). Pub. L. 99-499, Sec. 104(m), added pars.
(2) to (6). Former par. (2) redesignated (7).
Subsec. (e)(7). Pub. L. 99-499, Sec. 104(m), (n), redesignated
par. (2) as (7), aligned margin of par. (7) with pars. (1) through
(6), and added par. heading and subpars. (E) and (F).
Subsec. (i). Pub. L. 99-499, Sec. 110, designated existing
provisions as par. (1), redesignated former pars. (1) to (5) as
subpars. (A) to (E), respectively, of par. (1), in introductory
provisions of par. (1), struck out "and" after "Health
Administration," and inserted "the Secretary of Transportation, and
appropriate State and local health officials," in par. (1)(D),
inserted "where appropriate", and added pars. (2) to (18).
Subsec. (j). Pub. L. 99-499, Sec. 104(o)(1), added subsec. (j).
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions in subsec.
(i)(10) of this section relating to the requirement that the
Administrator of ATSDR submit a biennial report to Congress, see
section 3003 of Pub. L. 104-66, as amended, set out as a note under
section 1113 of Title 31, Money and Finance, and the 13th item on
page 154 of House Document No. 103-7.
COORDINATION OF TITLES I TO IV OF PUB. L. 99-499
Any provision of titles I to IV of Pub. L. 99-499, imposing any
tax, premium, or fee; establishing any trust fund; or authorizing
expenditures from any trust fund, to have no force or effect, see
section 531 of Pub. L. 99-499, set out as a note under section 1 of
Title 26, Internal Revenue Code.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 6924, 6939a, 6939b, 6972,
9601, 9607, 9609, 9611, 9613, 9617, 9618, 9619, 9620, 9621, 9622,
9626, 9628, 9660, 9661 of this title; title 10 section 2704; title
26 section 198.
-FOOTNOTE-
)1(! So in original. Probably should be followed by a comma.
-End-
-CITE-
42 USC Sec. 9605 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9605. National contingency plan
-STATUTE-
(a) Revision and republication
Within one hundred and eighty days after December 11, 1980, the
President shall, after notice and opportunity for public comments,
revise and republish the national contingency plan for the removal
of oil and hazardous substances, originally prepared and published
pursuant to section 1321 of title 33, to reflect and effectuate the
responsibilities and powers created by this chapter, in addition to
those matters specified in section 1321(c)(2) )1(! of title 33.
Such revision shall include a section of the plan to be known as
the national hazardous substance response plan which shall
establish procedures and standards for responding to releases of
hazardous substances, pollutants, and contaminants, which shall
include at a minimum:
(1) methods for discovering and investigating facilities at
which hazardous substances have been disposed of or otherwise
come to be located;
(2) methods for evaluating, including analyses of relative
cost, and remedying any releases or threats of releases from
facilities which pose substantial danger to the public health or
the environment;
(3) methods and criteria for determining the appropriate extent
of removal, remedy, and other measures authorized by this
chapter;
(4) appropriate roles and responsibilities for the Federal,
State, and local governments and for interstate and
nongovernmental entities in effectuating the plan;
(5) provision for identification, procurement, maintenance, and
storage of response equipment and supplies;
(6) a method for and assignment of responsibility for reporting
the existence of such facilities which may be located on
federally owned or controlled properties and any releases of
hazardous substances from such facilities;
(7) means of assuring that remedial action measures are
cost-effective over the period of potential exposure to the
hazardous substances or contaminated materials;
(8)(A) criteria for determining priorities among releases or
threatened releases throughout the United States for the purpose
of taking remedial action and, to the extent practicable taking
into account the potential urgency of such action, for the
purpose of taking removal action. Criteria and priorities under
this paragraph shall be based upon relative risk or danger to
public health or welfare or the environment, in the judgment of
the President, taking into account to the extent possible the
population at risk, the hazard potential of the hazardous
substances at such facilities, the potential for contamination of
drinking water supplies, the potential for direct human contact,
the potential for destruction of sensitive ecosystems, the damage
to natural resources which may affect the human food chain and
which is associated with any release or threatened release, the
contamination or potential contamination of the ambient air which
is associated with the release or threatened release, State
preparedness to assume State costs and responsibilities, and
other appropriate factors;
(B) based upon the criteria set forth in subparagraph (A) of
this paragraph, the President shall list as part of the plan
national priorities among the known releases or threatened
releases throughout the United States and shall revise the list
no less often than annually. Within one year after December 11,
1980, and annually thereafter, each State shall establish and
submit for consideration by the President priorities for remedial
action among known releases and potential releases in that State
based upon the criteria set forth in subparagraph (A) of this
paragraph. In assembling or revising the national list, the
President shall consider any priorities established by the
States. To the extent practicable, the highest priority
facilities shall be designated individually and shall be referred
to as the "top priority among known response targets", and, to
the extent practicable, shall include among the one hundred
highest priority facilities one such facility from each State
which shall be the facility designated by the State as presenting
the greatest danger to public health or welfare or the
environment among the known facilities in such State. A State
shall be allowed to designate its highest priority facility only
once. Other priority facilities or incidents may be listed singly
or grouped for response priority purposes;
(9) specified roles for private organizations and entities in
preparation for response and in responding to releases of
hazardous substances, including identification of appropriate
qualifications and capacity therefor and including consideration
of minority firms in accordance with subsection (f) of this
section; and
(10) standards and testing procedures by which alternative or
innovative treatment technologies can be determined to be
appropriate for utilization in response actions authorized by
this chapter.
The plan shall specify procedures, techniques, materials,
equipment, and methods to be employed in identifying, removing, or
remedying releases of hazardous substances comparable to those
required under section 1321(c)(2)(F) and (G) and (j)(1) of title
33. Following publication of the revised national contingency plan,
the response to and actions to minimize damage from hazardous
substances releases shall, to the greatest extent possible, be in
accordance with the provisions of the plan. The President may, from
time to time, revise and republish the national contingency plan.
(b) Revision of plan
Not later than 18 months after the enactment of the Superfund
Amendments and Reauthorization Act of 1986 [October 17, 1986], the
President shall revise the National Contingency Plan to reflect the
requirements of such amendments. The portion of such Plan known as
"the National Hazardous Substance Response Plan" shall be revised
to provide procedures and standards for remedial actions undertaken
pursuant to this chapter which are consistent with amendments made
by the Superfund Amendments and Reauthorization Act of 1986
relating to the selection of remedial action.
(c) Hazard ranking system
(1) Revision
Not later than 18 months after October 17, 1986, and after
publication of notice and opportunity for submission of comments
in accordance with section 553 of title 5, the President shall by
rule promulgate amendments to the hazard ranking system in effect
on September 1, 1984. Such amendments shall assure, to the
maximum extent feasible, that the hazard ranking system
accurately assesses the relative degree of risk to human health
and the environment posed by sites and facilities subject to
review. The President shall establish an effective date for the
amended hazard ranking system which is not later than 24 months
after October 17, 1986. Such amended hazard ranking system shall
be applied to any site or facility to be newly listed on the
National Priorities List after the effective date established by
the President. Until such effective date of the regulations, the
hazard ranking system in effect on September 1, 1984, shall
continue in full force and effect.
(2) Health assessment of water contamination risks
In carrying out this subsection, the President shall ensure
that the human health risks associated with the contamination or
potential contamination (either directly or as a result of the
runoff of any hazardous substance or pollutant or contaminant
from sites or facilities) of surface water are appropriately
assessed where such surface water is, or can be, used for
recreation or potable water consumption. In making the assessment
required pursuant to the preceding sentence, the President shall
take into account the potential migration of any hazardous
substance or pollutant or contaminant through such surface water
to downstream sources of drinking water.
(3) Reevaluation not required
The President shall not be required to reevaluate, after
October 17, 1986, the hazard ranking of any facility which was
evaluated in accordance with the criteria under this section
before the effective date of the amendments to the hazard ranking
system under this subsection and which was assigned a national
priority under the National Contingency Plan.
(4) New information
Nothing in paragraph (3) shall preclude the President from
taking new information into account in undertaking response
actions under this chapter.
(d) Petition for assessment of release
Any person who is, or may be, affected by a release or threatened
release of a hazardous substance or pollutant or contaminant, may
petition the President to conduct a preliminary assessment of the
hazards to public health and the environment which are associated
with such release or threatened release. If the President has not
previously conducted a preliminary assessment of such release, the
President shall, within 12 months after the receipt of any such
petition, complete such assessment or provide an explanation of why
the assessment is not appropriate. If the preliminary assessment
indicates that the release or threatened release concerned may pose
a threat to human health or the environment, the President shall
promptly evaluate such release or threatened release in accordance
with the hazard ranking system referred to in paragraph (8)(A) of
subsection (a) of this section to determine the national priority
of such release or threatened release.
(e) Releases from earlier sites
Whenever there has been, after January 1, 1985, a significant
release of hazardous substances or pollutants or contaminants from
a site which is listed by the President as a "Site Cleaned Up To
Date" on the National Priorities List (revised edition, December
1984) the site shall be restored to the National Priorities List,
without application of the hazard ranking system.
(f) Minority contractors
In awarding contracts under this chapter, the President shall
consider the availability of qualified minority firms. The
President shall describe, as part of any annual report submitted to
the Congress under this chapter, the participation of minority
firms in contracts carried out under this chapter. Such report
shall contain a brief description of the contracts which have been
awarded to minority firms under this chapter and of the efforts
made by the President to encourage the participation of such firms
in programs carried out under this chapter.
(g) Special study wastes
(1) Application
This subsection applies to facilities -
(A) which as of October 17, 1986, were not included on, or
proposed for inclusion on, the National Priorities List; and
(B) at which special study wastes described in paragraph (2),
(3)(A)(ii) or (3)(A)(iii) of section 6921(b) of this title are
present in significant quantities, including any such facility
from which there has been a release of a special study waste.
(2) Considerations in adding facilities to NPL
Pending revision of the hazard ranking system under subsection
(c) of this section, the President shall consider each of the
following factors in adding facilities covered by this section to
the National Priorities List:
(A) The extent to which hazard ranking system score for the
facility is affected by the presence of any special study waste
at, or any release from, such facility.
(B) Available information as to the quantity, toxicity, and
concentration of hazardous substances that are constituents of
any special study waste at, or released from such facility, the
extent of or potential for release of such hazardous
constituents, the exposure or potential exposure to human
population and the environment, and the degree of hazard to
human health or the environment posed by the release of such
hazardous constituents at such facility. This subparagraph
refers only to available information on actual concentrations
of hazardous substances and not on the total quantity of
special study waste at such facility.
(3) Savings provisions
Nothing in this subsection shall be construed to limit the
authority of the President to remove any facility which as of
October 17, 1986, is included on the National Priorities List
from such List, or not to list any facility which as of such date
is proposed for inclusion on such list.
(4) Information gathering and analysis
Nothing in this chapter shall be construed to preclude the
expenditure of monies from the Fund for gathering and analysis of
information which will enable the President to consider the
specific factors required by paragraph (2).
(h) NPL deferral
(1) Deferral to State voluntary cleanups
At the request of a State and subject to paragraphs (2) and
(3), the President generally shall defer final listing of an
eligible response site on the National Priorities List if the
President determines that -
(A) the State, or another party under an agreement with or
order from the State, is conducting a response action at the
eligible response site -
(i) in compliance with a State program that specifically
governs response actions for the protection of public health
and the environment; and
(ii) that will provide long-term protection of human health
and the environment; or
(B) the State is actively pursuing an agreement to perform a
response action described in subparagraph (A) at the site with
a person that the State has reason to believe is capable of
conducting a response action that meets the requirements of
subparagraph (A).
(2) Progress toward cleanup
If, after the last day of the 1-year period beginning on the
date on which the President proposes to list an eligible response
site on the National Priorities List, the President determines
that the State or other party is not making reasonable progress
toward completing a response action at the eligible response
site, the President may list the eligible response site on the
National Priorities List.
(3) Cleanup agreements
With respect to an eligible response site under paragraph
(1)(B), if, after the last day of the 1-year period beginning on
the date on which the President proposes to list the eligible
response site on the National Priorities List, an agreement
described in paragraph (1)(B) has not been reached, the President
may defer the listing of the eligible response site on the
National Priorities List for an additional period of not to
exceed 180 days if the President determines deferring the listing
would be appropriate based on -
(A) the complexity of the site;
(B) substantial progress made in negotiations; and
(C) other appropriate factors, as determined by the
President.
(4) Exceptions
The President may decline to defer, or elect to discontinue a
deferral of, a listing of an eligible response site on the
National Priorities List if the President determines that -
(A) deferral would not be appropriate because the State, as
an owner or operator or a significant contributor of hazardous
substances to the facility, is a potentially responsible party;
(B) the criteria under the National Contingency Plan for
issuance of a health advisory have been met; or
(C) the conditions in paragraphs (1) through (3), as
applicable, are no longer being met.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 105, Dec. 11, 1980, 94 Stat. 2779;
Pub. L. 99-499, title I, Sec. 105, Oct. 17, 1986, 100 Stat. 1625;
Pub. L. 107-118, title II, Sec. 232, Jan. 11, 2002, 115 Stat.
2379.)
-REFTEXT-
REFERENCES IN TEXT
Section 1321(c)(2) of title 33, referred to in subsec. (a), was
amended generally by Pub. L. 101-380, title IV, Sec. 4201(a), Aug.
18, 1990, 104 Stat. 523. Prior to general amendment, subsec. (c)(2)
related to preparation of a National Contingency Plan. Provisions
relating to a National Contingency Plan are contained in section
1321(d) of Title 33, Navigation and Navigable Waters.
Such amendments and the amendments made by the Superfund
Amendments and Reauthorization Act of 1986, referred to in subsec.
(b), are the amendments made by Pub. L. 99-499, Oct. 17, 1986, 100
Stat. 1613. For complete classification of this Act to the Code,
see Short Title of 1986 Amendment note set out under section 9601
of this title and Tables.
-MISC1-
AMENDMENTS
2002 - Subsec. (h). Pub. L. 107-118 added subsec. (h).
1986 - Subsec. (a). Pub. L. 99-499, Sec. 105(a)(1), designated
existing provisions as subsec. (a) and added heading.
Subsec. (a)(8)(A). Pub. L. 99-499, Sec. 105(a)(2), inserted "the
damage to natural resources which may affect the human food chain
and which is associated with any release or threatened release, the
contamination or potential contamination of the ambient air which
is associated with the release or threatened release," after
"ecosystems,".
Subsec. (a)(8)(B). Pub. L. 99-499, Sec. 105(a)(3), struck out "at
least four hundred of" after "To the extent practicable,",
substituted "one hundred highest priority facilities" for "one
hundred highest priority facilities at least", and inserted "A
State shall be allowed to designate its highest priority facility
only once."
Subsec. (a)(9). Pub. L. 99-499, Sec. 105(a)(4), inserted "and
including consideration of minority firms in accordance with
subsection (f) of this section".
Subsec. (a)(10). Pub. L. 99-499, Sec. 105(a)(5), added par. (10).
Subsecs. (b) to (g). Pub. L. 99-499, Sec. 105(b), added subsecs.
(b) to (g).
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 9601, 9604, 9607, 9611,
9616, 9620, 9622, 9626, 9651, 11003 of this title; title 26
sections 198, 468; title 33 section 2701; title 49 sections 5102,
5115.
-FOOTNOTE-
)1(! See References in Text note below.
-End-
-CITE-
42 USC Sec. 9606 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9606. Abatement actions
-STATUTE-
(a) Maintenance, jurisdiction, etc.
In addition to any other action taken by a State or local
government, when the President determines that there may be an
imminent and substantial endangerment to the public health or
welfare or the environment because of an actual or threatened
release of a hazardous substance from a facility, he may require
the Attorney General of the United States to secure such relief as
may be necessary to abate such danger or threat, and the district
court of the United States in the district in which the threat
occurs shall have jurisdiction to grant such relief as the public
interest and the equities of the case may require. The President
may also, after notice to the affected State, take other action
under this section including, but not limited to, issuing such
orders as may be necessary to protect public health and welfare and
the environment.
(b) Fines; reimbursement
(1) Any person who, without sufficient cause, willfully violates,
or fails or refuses to comply with, any order of the President
under subsection (a) of this section may, in an action brought in
the appropriate United States district court to enforce such order,
be fined not more than $25,000 for each day in which such violation
occurs or such failure to comply continues.
(2)(A) Any person who receives and complies with the terms of any
order issued under subsection (a) of this section may, within 60
days after completion of the required action, petition the
President for reimbursement from the Fund for the reasonable costs
of such action, plus interest. Any interest payable under this
paragraph shall accrue on the amounts expended from the date of
expenditure at the same rate as specified for interest on
investments of the Hazardous Substance Superfund established under
subchapter A of chapter 98 of title 26.
(B) If the President refuses to grant all or part of a petition
made under this paragraph, the petitioner may within 30 days of
receipt of such refusal file an action against the President in the
appropriate United States district court seeking reimbursement from
the Fund.
(C) Except as provided in subparagraph (D), to obtain
reimbursement, the petitioner shall establish by a preponderance of
the evidence that it is not liable for response costs under section
9607(a) of this title and that costs for which it seeks
reimbursement are reasonable in light of the action required by the
relevant order.
(D) A petitioner who is liable for response costs under section
9607(a) of this title may also recover its reasonable costs of
response to the extent that it can demonstrate, on the
administrative record, that the President's decision in selecting
the response action ordered was arbitrary and capricious or was
otherwise not in accordance with law. Reimbursement awarded under
this subparagraph shall include all reasonable response costs
incurred by the petitioner pursuant to the portions of the order
found to be arbitrary and capricious or otherwise not in accordance
with law.
(E) Reimbursement awarded by a court under subparagraph (C) or
(D) may include appropriate costs, fees, and other expenses in
accordance with subsections (a) and (d) of section 2412 of title
28.
(c) Guidelines for using imminent hazard, enforcement, and
emergency response authorities; promulgation by Administrator of
EPA, scope, etc.
Within one hundred and eighty days after December 11, 1980, the
Administrator of the Environmental Protection Agency shall, after
consultation with the Attorney General, establish and publish
guidelines for using the imminent hazard, enforcement, and
emergency response authorities of this section and other existing
statutes administered by the Administrator of the Environmental
Protection Agency to effectuate the responsibilities and powers
created by this chapter. Such guidelines shall to the extent
practicable be consistent with the national hazardous substance
response plan, and shall include, at a minimum, the assignment of
responsibility for coordinating response actions with the issuance
of administrative orders, enforcement of standards and permits, the
gathering of information, and other imminent hazard and emergency
powers authorized by (1) sections 1321(c)(2),)1(! 1318, 1319, and
1364(a) of title 33, (2) sections 6927, 6928, 6934, and 6973 of
this title, (3) sections 300j-4 and 300i of this title, (4)
sections 7413, 7414, and 7603 of this title, and (5) section 2606
of title 15.
-SOURCE-
(Pub. L. 96-510, title I, Sec. 106, Dec. 11, 1980, 94 Stat. 2780;
Pub. L. 99-499, title I, Secs. 106, 109(b), Oct. 17, 1986, 100
Stat. 1628, 1633; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat.
2095.)
-REFTEXT-
REFERENCES IN TEXT
This chapter, referred to in subsec. (c), was in the original
"this Act", meaning Pub. L. 96-510, Dec. 11, 1980, 94 Stat. 2767,
as amended, known as the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, which enacted this
chapter, section 6911a of this title, and sections 4611, 4612,
4661, 4662, 4681, and 4682 of Title 26, Internal Revenue Code,
amended section 6911 of this title, section 1364 of Title 33,
Navigation and Navigable Waters, and section 11901 of Title 49,
Transportation, and enacted provisions set out as notes under
section 6911 of this title and sections 1 and 4611 of Title 26. For
complete classification of this Act to the Code, see Short Title
note set out under section 9601 of this title and Tables.
Section 1321(c)(2) of title 33, referred to in subsec. (c), was
amended generally by Pub. L. 101-380, title IV, Sec. 4201(a), Aug.
18, 1990, 104 Stat. 523. Prior to general amendment, subsec. (c)(2)
related to preparation of a National Contingency Plan. Provisions
relating to a National Contingency Plan are contained in section
1321(d) of Title 33, Navigation and Navigable Waters.
-MISC1-
AMENDMENTS
1986 - Subsec. (b). Pub. L. 99-499 designated existing provisions
as par. (1), substituted "who, without sufficient cause, willfully"
for "who willfully" and "$25,000" for "$5,000", and added par. (2).
Subsec. (b)(2)(A). Pub. L. 99-514 substituted "Internal Revenue
Code of 1986" for "Internal Revenue Code of 1954", which for
purposes of codification was translated as "title 26" thus
requiring no change in text.
COORDINATION OF TITLES I TO IV OF PUB. L. 99-499
Any provision of titles I to IV of Pub. L. 99-499, imposing any
tax, premium, or fee; establishing any trust fund; or authorizing
expenditures from any trust fund, to have no force or effect, see
section 531 of Pub. L. 99-499, set out as a note under section 1 of
Title 26, Internal Revenue Code.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 6924, 6939b, 6972, 7412,
9607, 9613, 9614, 9617, 9618, 9619, 9620, 9621, 9622, 9624, 9628 of
this title; title 26 section 4662.
-FOOTNOTE-
)1(! See References in Text note below.
-End-
-CITE-
42 USC Sec. 9607 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY
SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
-HEAD-
Sec. 9607. Liability
-STATUTE-
(a) Covered persons; scope; recoverable costs and damages; interest
rate; "comparable maturity" date
Notwithstanding any other provision or rule of law, and subject
only to the defenses set forth in subsection (b) of this section -
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such hazardous
substances were disposed of,
(3) any person who by contract, agreement, or otherwise
arranged for disposal or treatment, or arranged with a
transporter for transport for disposal or treatment, of hazardous
substances owned or possessed by such person, by any other party
or entity, at any facility or incineration vessel owned or
operated by another party or entity and containing such hazardous
substances, and
(4) any person who accepts or accepted any hazardous substances
for transport to disposal or treatment facilities, incineration
vessels or sites selected by such person, from which there is a
release, or a threatened release which causes the incurrence of
response costs, of a hazardous substance, shall be liable for -
(A) all costs of removal or remedial action incurred by the
United States Government or a State or an Indian tribe not
inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any
other person consistent with the national contingency plan;
(C) damages for injury to, destruction of, or loss of natural
resources, including the reasonable costs of assessing such
injury, destruction, or loss resulting from such a release; and
(D) the costs of any health assessment or health effects
study carried out under section 9604(i) of this title.
The amounts recoverable in an action under this section shall
include interest on the amounts recoverable under subparagraphs (A)
through (D). Such interest shall accrue from the later of (i) the
date payment of a specified amount is demanded in writing, or (ii)
the date of the expenditure concerned. The rate of interest on the
outstanding unpaid balance of the amounts recoverable under this
section shall be the same rate as is specified for interest on
investments of the Hazardous Substance Superfund established under
subchapter A of chapter 98 of title 26. For purposes of applying
such amendments to interest under this subsection, the term
"comparable maturity" shall be determined with reference to the
date on which interest accruing under this subsection commences.
(b) Defenses
There shall be no liability under subsection (a) of this section
for a person otherwise liable who can establish by a preponderance
of the evidence that the release or threat of release of a
hazardous substance and the damages resulting therefrom were caused
solely by -
(1) an act of God;
(2) an act of war;
(3) an act or omission of a third party other than an employee
or agent of the defendant, or than one whose act or omission
occurs in connection with a contractual relationship, existing
directly or indirectly, with the defendant (except where the sole
contractual arrangement arises from a published tariff and
acceptance for carriage by a common carrier by rail), if the
defendant establishes by a preponderance of the evidence that (a)
he exercised due care with respect to the hazardous substance
concerned, taking into consideration the characteristics of such
hazardous substance, in light of all relevant facts and
circumstances, and (b) he took precautions against foreseeable
acts or omissions of any such third party and the consequences
that could foreseeably result from such acts or omissions; or
(4) any combination of the foregoing paragraphs.
(c) Determination of amounts
(1) Except as provided in paragraph (2) of this subsection, the
liability under this section of an owner or operator or other
responsible person for each release of a hazardous substance or
incident involving release of a hazardous substance shall not
exceed -
(A) for any vessel, other than an incineration vessel, which
carries any hazardous substance as cargo or residue, $300 per
gross ton, or $5,000,000, whichever is greater;
(B) for any other vessel, other than an incineration vessel,
$300 per gross ton, or $500,000, whichever is greater;
(C) for any motor vehicle, aircraft, hazardous liquid pipeline
facility (as defined in section 60101(a) of title 49), or rolling
stock, $50,000,000 or such lesser amount as the President shall
establish by regulation, but in no event less than $5,000,000
(or, for releases of hazardous substances as defined in section
9601(14)(A) of this title into the navigable waters, $8,000,000).
Such regulations shall take into account the size, type,
location, storage, and handling capacity and other matters
relating to the likelihood of release in each such class and to
the economic impact of such limits on each such class; or
(D) for any incineration vessel or any facility other than
those specified in subparagraph (C) of this paragraph, the total
of all costs of response plus $50,000,000 for any damages under
this subchapter.
(2) Notwithstanding the limitations in paragraph (1) of this
subsection, the liability of an owner or operator or other
responsible person under this section shall be the full and total
costs of response and damages, if (A)(i) the release or threat of (continued)