Loading (50 kb)...'

(continued)
release of a hazardous substance was the result of willful
misconduct or willful negligence within the privity or knowledge of
such person, or (ii) the primary cause of the release was a
violation (within the privity or knowledge of such person) of
applicable safety, construction, or operating standards or
regulations; or (B) such person fails or refuses to provide all
reasonable cooperation and assistance requested by a responsible
public official in connection with response activities under the
national contingency plan with respect to regulated carriers
subject to the provisions of title 49 or vessels subject to the
provisions of title 33, 46, or 46 Appendix, subparagraph (A)(ii) of
this paragraph shall be deemed to refer to Federal standards or
regulations.
(3) If any person who is liable for a release or threat of
release of a hazardous substance fails without sufficient cause to
properly provide removal or remedial action upon order of the
President pursuant to section 9604 or 9606 of this title, such
person may be liable to the United States for punitive damages in
an amount at least equal to, and not more than three times, the
amount of any costs incurred by the Fund as a result of such
failure to take proper action. The President is authorized to
commence a civil action against any such person to recover the
punitive damages, which shall be in addition to any costs recovered
from such person pursuant to section 9612(c) of this title. Any
moneys received by the United States pursuant to this subsection
shall be deposited in the Fund.
(d) Rendering care or advice
(1) In general
Except as provided in paragraph (2), no person shall be liable
under this subchapter for costs or damages as a result of actions
taken or omitted in the course of rendering care, assistance, or
advice in accordance with the National Contingency Plan ("NCP")
or at the direction of an onscene coordinator appointed under
such plan, with respect to an incident creating a danger to
public health or welfare or the environment as a result of any
releases of a hazardous substance or the threat thereof. This
paragraph shall not preclude liability for costs or damages as
the result of negligence on the part of such person.
(2) State and local governments
No State or local government shall be liable under this
subchapter for costs or damages as a result of actions taken in
response to an emergency created by the release or threatened
release of a hazardous substance generated by or from a facility
owned by another person. This paragraph shall not preclude
liability for costs or damages as a result of gross negligence or
intentional misconduct by the State or local government. For the
purpose of the preceding sentence, reckless, willful, or wanton
misconduct shall constitute gross negligence.
(3) Savings provision
This subsection shall not alter the liability of any person
covered by the provisions of paragraph (1), (2), (3), or (4) of
subsection (a) of this section with respect to the release or
threatened release concerned.
(e) Indemnification, hold harmless, etc., agreements or
conveyances; subrogation rights
(1) No indemnification, hold harmless, or similar agreement or
conveyance shall be effective to transfer from the owner or
operator of any vessel or facility or from any person who may be
liable for a release or threat of release under this section, to
any other person the liability imposed under this section. Nothing
in this subsection shall bar any agreement to insure, hold
harmless, or indemnify a party to such agreement for any liability
under this section.
(2) Nothing in this subchapter, including the provisions of
paragraph (1) of this subsection, shall bar a cause of action that
an owner or operator or any other person subject to liability under
this section, or a guarantor, has or would have, by reason of
subrogation or otherwise against any person.
(f) Natural resources liability; designation of public trustees of
natural resources
(1) Natural resources liability
In the case of an injury to, destruction of, or loss of natural
resources under subparagraph (C) of subsection (a) of this
section liability shall be to the United States Government and to
any State for natural resources within the State or belonging to,
managed by, controlled by, or appertaining to such State and to
any Indian tribe for natural resources belonging to, managed by,
controlled by, or appertaining to such tribe, or held in trust
for the benefit of such tribe, or belonging to a member of such
tribe if such resources are subject to a trust restriction on
alienation: Provided, however, That no liability to the United
States or State or Indian tribe shall be imposed under
subparagraph (C) of subsection (a) of this section, where the
party sought to be charged has demonstrated that the damages to
natural resources complained of were specifically identified as
an irreversible and irretrievable commitment of natural resources
in an environmental impact statement, or other comparable
environment analysis, and the decision to grant a permit or
license authorizes such commitment of natural resources, and the
facility or project was otherwise operating within the terms of
its permit or license, so long as, in the case of damages to an
Indian tribe occurring pursuant to a Federal permit or license,
the issuance of that permit or license was not inconsistent with
the fiduciary duty of the United States with respect to such
Indian tribe. The President, or the authorized representative of
any State, shall act on behalf of the public as trustee of such
natural resources to recover for such damages. Sums recovered by
the United States Government as trustee under this subsection
shall be retained by the trustee, without further appropriation,
for use only to restore, replace, or acquire the equivalent of
such natural resources. Sums recovered by a State as trustee
under this subsection shall be available for use only to restore,
replace, or acquire the equivalent of such natural resources by
the State. The measure of damages in any action under
subparagraph (C) of subsection (a) of this section shall not be
limited by the sums which can be used to restore or replace such
resources. There shall be no double recovery under this chapter
for natural resource damages, including the costs of damage
assessment or restoration, rehabilitation, or acquisition for the
same release and natural resource. There shall be no recovery
under the authority of subparagraph (C) of subsection (a) of this
section where such damages and the release of a hazardous
substance from which such damages resulted have occurred wholly
before December 11, 1980.
(2) Designation of Federal and State officials
(A) Federal
The President shall designate in the National Contingency
Plan published under section 9605 of this title the Federal
officials who shall act on behalf of the public as trustees for
natural resources under this chapter and section 1321 of title
33. Such officials shall assess damages for injury to,
destruction of, or loss of natural resources for purposes of
this chapter and such section 1321 of title 33 for those
resources under their trusteeship and may, upon request of and
reimbursement from a State and at the Federal officials'
discretion, assess damages for those natural resources under
the State's trusteeship.
(B) State
The Governor of each State shall designate State officials
who may act on behalf of the public as trustees for natural
resources under this chapter and section 1321 of title 33 and
shall notify the President of such designations. Such State
officials shall assess damages to natural resources for the
purposes of this chapter and such section 1321 of title 33 for
those natural resources under their trusteeship.
(C) Rebuttable presumption
Any determination or assessment of damages to natural
resources for the purposes of this chapter and section 1321 of
title 33 made by a Federal or State trustee in accordance with
the regulations promulgated under section 9651(c) of this title
shall have the force and effect of a rebuttable presumption on
behalf of the trustee in any administrative or judicial
proceeding under this chapter or section 1321 of title 33.
(g) Federal agencies
For provisions relating to Federal agencies, see section 9620 of
this title.
(h) Owner or operator of vessel
The owner or operator of a vessel shall be liable in accordance
with this section, under maritime tort law, and as provided under
section 9614 of this title notwithstanding any provision of the Act
of March 3, 1851 (46 U.S.C. 183ff) [46 App. U.S.C. 182, 183,
184-188] or the absence of any physical damage to the proprietary
interest of the claimant.
(i) Application of a registered pesticide product
No person (including the United States or any State or Indian
tribe) may recover under the authority of this section for any
response costs or damages resulting from the application of a
pesticide product registered under the Federal Insecticide,
Fungicide, and Rodenticide Act [7 U.S.C. 136 et seq.]. Nothing in
this paragraph shall affect or modify in any way the obligations or
liability of any person under any other provision of State or
Federal law, including common law, for damages, injury, or loss
resulting from a release of any hazardous substance or for removal
or remedial action or the costs of removal or remedial action of
such hazardous substance.
(j) Obligations or liability pursuant to federally permitted
release
Recovery by any person (including the United States or any State
or Indian tribe) for response costs or damages resulting from a
federally permitted release shall be pursuant to existing law in
lieu of this section. Nothing in this paragraph shall affect or
modify in any way the obligations or liability of any person under
any other provision of State or Federal law, including common law,
for damages, injury, or loss resulting from a release of any
hazardous substance or for removal or remedial action or the costs
of removal or remedial action of such hazardous substance. In
addition, costs of response incurred by the Federal Government in
connection with a discharge specified in section 9601(10)(B) or (C)
of this title shall be recoverable in an action brought under
section 1319(b) of title 33.
(k) Transfer to, and assumption by, Post-Closure Liability Fund of
liability of owner or operator of hazardous waste disposal
facility in receipt of permit under applicable solid waste
disposal law; time, criteria applicable, procedures, etc.;
monitoring costs; reports
(1) The liability established by this section or any other law
for the owner or operator of a hazardous waste disposal facility
which has received a permit under subtitle C of the Solid Waste
Disposal Act [42 U.S.C. 6921 et seq.], shall be transferred to and
assumed by the Post-closure Liability Fund established by section
9641 )1(! of this title when -

(A) such facility and the owner and operator thereof has
complied with the requirements of subtitle C of the Solid Waste
Disposal Act [42 U.S.C. 6921 et seq.] and regulations issued
thereunder, which may affect the performance of such facility
after closure; and
(B) such facility has been closed in accordance with such
regulations and the conditions of such permit, and such facility
and the surrounding area have been monitored as required by such
regulations and permit conditions for a period not to exceed five
years after closure to demonstrate that there is no substantial
likelihood that any migration offsite or release from confinement
of any hazardous substance or other risk to public health or
welfare will occur.

(2) Such transfer of liability shall be effective ninety days
after the owner or operator of such facility notifies the
Administrator of the Environmental Protection Agency (and the State
where it has an authorized program under section 3006(b) of the
Solid Waste Disposal Act [42 U.S.C. 6926(b)]) that the conditions
imposed by this subsection have been satisfied. If within such
ninety-day period the Administrator of the Environmental Protection
Agency or such State determines that any such facility has not
complied with all the conditions imposed by this subsection or that
insufficient information has been provided to demonstrate such
compliance, the Administrator or such State shall so notify the
owner and operator of such facility and the administrator of the
Fund established by section 9641 )1(! of this title, and the owner
and operator of such facility shall continue to be liable with
respect to such facility under this section and other law until
such time as the Administrator and such State determines that such
facility has complied with all conditions imposed by this
subsection. A determination by the Administrator or such State that
a facility has not complied with all conditions imposed by this
subsection or that insufficient information has been supplied to
demonstrate compliance, shall be a final administrative action for
purposes of judicial review. A request for additional information
shall state in specific terms the data required.
(3) In addition to the assumption of liability of owners and
operators under paragraph (1) of this subsection, the Post-closure
Liability Fund established by section 9641 )1(! of this title may
be used to pay costs of monitoring and care and maintenance of a
site incurred by other persons after the period of monitoring
required by regulations under subtitle C of the Solid Waste
Disposal Act [42 U.S.C. 6921 et seq.] for hazardous waste disposal
facilities meeting the conditions of paragraph (1) of this
subsection.
(4)(A) Not later than one year after December 11, 1980, the
Secretary of the Treasury shall conduct a study and shall submit a
report thereon to the Congress on the feasibility of establishing
or qualifying an optional system of private insurance for
postclosure financial responsibility for hazardous waste disposal
facilities to which this subsection applies. Such study shall
include a specification of adequate and realistic minimum standards
to assure that any such privately placed insurance will carry out
the purposes of this subsection in a reliable, enforceable, and
practical manner. Such a study shall include an examination of the
public and private incentives, programs, and actions necessary to
make privately placed insurance a practical and effective option to
the financing system for the Post-closure Liability Fund provided
in subchapter II )1(! of this chapter.
(B) Not later than eighteen months after December 11, 1980, and
after a public hearing, the President shall by rule determine
whether or not it is feasible to establish or qualify an optional
system of private insurance for postclosure financial
responsibility for hazardous waste disposal facilities to which
this subsection applies. If the President determines the
establishment or qualification of such a system would be
infeasible, he shall promptly publish an explanation of the reasons
for such a determination. If the President determines the
establishment or qualification of such a system would be feasible,
he shall promptly publish notice of such determination. Not later
than six months after an affirmative determination under the
preceding sentence and after a public hearing, the President shall
by rule promulgate adequate and realistic minimum standards which
must be met by any such privately placed insurance, taking into
account the purposes of this chapter and this subsection. Such
rules shall also specify reasonably expeditious procedures by which
privately placed insurance plans can qualify as meeting such
minimum standards.
(C) In the event any privately placed insurance plan qualifies
under subparagraph (B), any person enrolled in, and complying with
the terms of, such plan shall be excluded from the provisions of
paragraphs (1), (2), and (3) of this subsection and exempt from the
requirements to pay any tax or fee to the Post-closure Liability
Fund under subchapter II )1(! of this chapter.
(D) The President may issue such rules and take such other
actions as are necessary to effectuate the purposes of this
paragraph.
(5) Suspension of liability transfer. - Notwithstanding
paragraphs (1), (2), (3), and (4) of this subsection and subsection
(j) of section 9611 of this title, no liability shall be
transferred to or assumed by the Post-Closure Liability Trust Fund
established by section 9641 )1(! of this title prior to completion
of the study required under paragraph (6) of this subsection,
transmission of a report of such study to both Houses of Congress,
and authorization of such a transfer or assumption by Act of
Congress following receipt of such study and report.
(6) Study of options for post-closure program. -
(A) Study. - The Comptroller General shall conduct a study of
options for a program for the management of the liabilities
associated with hazardous waste treatment, storage, and disposal
sites after their closure which complements the policies set
forth in the Hazardous and Solid Waste Amendments of 1984 and
assures the protection of human health and the environment.
(B) Program elements. - The program referred to in subparagraph
(A) shall be designed to assure each of the following:
(i) Incentives are created and maintained for the safe
management and disposal of hazardous wastes so as to assure
protection of human health and the environment.
(ii) Members of the public will have reasonable confidence
that hazardous wastes will be managed and disposed of safely
and that resources will be available to address any problems
that may arise and to cover costs of long-term monitoring,
care, and maintenance of such sites.
(iii) Persons who are or seek to become owners and operators
of hazardous waste disposal facilities will be able to manage
their potential future liabilities and to attract the
investment capital necessary to build, operate, and close such
facilities in a manner which assures protection of human health
and the environment.

(C) Assessments. - The study under this paragraph shall include
assessments of treatment, storage, and disposal facilities which
have been or are likely to be issued a permit under section 3005
of the Solid Waste Disposal Act [42 U.S.C. 6925] and the
likelihood of future insolvency on the part of owners and
operators of such facilities. Separate assessments shall be made
for different classes of facilities and for different classes of
land disposal facilities and shall include but not be limited to
-
(i) the current and future financial capabilities of facility
owners and operators;
(ii) the current and future costs associated with facilities,
including the costs of routine monitoring and maintenance,
compliance monitoring, corrective action, natural resource
damages, and liability for damages to third parties; and
(iii) the availability of mechanisms by which owners and
operators of such facilities can assure that current and future
costs, including post-closure costs, will be financed.

(D) Procedures. - In carrying out the responsibilities of this
paragraph, the Comptroller General shall consult with the
Administrator, the Secretary of Commerce, the Secretary of the
Treasury, and the heads of other appropriate Federal agencies.
(E) Consideration of options. - In conducting the study under
this paragraph, the Comptroller General shall consider various
mechanisms and combinations of mechanisms to complement the
policies set forth in the Hazardous and Solid Waste Amendments of
1984 to serve the purposes set forth in subparagraph (B) and to
assure that the current and future costs associated with
hazardous waste facilities, including post-closure costs, will be
adequately financed and, to the greatest extent possible, borne
by the owners and operators of such facilities. Mechanisms to be
considered include, but are not limited to -
(i) revisions to closure, post-closure, and financial
responsibility requirements under subtitles C and I of the
Solid Waste Disposal Act [42 U.S.C. 6921 et seq., 6991 et
seq.];
(ii) voluntary risk pooling by owners and operators;
(iii) legislation to require risk pooling by owners and
operators;
(iv) modification of the Post-Closure Liability Trust Fund
previously established by section 9641 )2(! of this title, and
the conditions for transfer of liability under this subsection,
including limiting the transfer of some or all liability under
this subsection only in the case of insolvency of owners and
operators;

(v) private insurance;
(vi) insurance provided by the Federal Government;
(vii) coinsurance, reinsurance, or pooled-risk insurance,
whether provided by the private sector or provided or assisted
by the Federal Government; and
(viii) creation of a new program to be administered by a new
or existing Federal agency or by a federally chartered
corporation.

(F) Recommendations. - The Comptroller General shall consider
options for funding any program under this section and shall, to
the extent necessary, make recommendations to the appropriate
committees of Congress for additional authority to implement such
program.
(l) Federal lien
(1) In general
All costs and damages for which a person is liable to the
United States under subsection (a) of this section (other than
the owner or operator of a vessel under paragraph (1) of
subsection (a) of this section) shall constitute a lien in favor
of the United States upon all real property and rights to such
property which -
(A) belong to such person; and
(B) are subject to or affected by a removal or remedial
action.
(2) Duration
The lien imposed by this subsection shall arise at the later of
the following:
(A) The time costs are first incurred by the United States
with respect to a response action under this chapter.
(B) The time that the person referred to in paragraph (1) is
provided (by certified or registered mail) written notice of
potential liability.

Such lien shall continue until the liability for the costs (or a
judgment against the person arising out of such liability) is
satisfied or becomes unenforceable through operation of the
statute of limitations provided in section 9613 of this title.
(3) Notice and validity
The lien imposed by this subsection shall be subject to the
rights of any purchaser, holder of a security interest, or
judgment lien creditor whose interest is perfected under
applicable State law before notice of the lien has been filed in
the appropriate office within the State (or county or other
governmental subdivision), as designated by State law, in which
the real property subject to the lien is located. Any such
purchaser, holder of a security interest, or judgment lien
creditor shall be afforded the same protections against the lien
imposed by this subsection as are afforded under State law
against a judgment lien which arises out of an unsecured
obligation and which arises as of the time of the filing of the
notice of the lien imposed by this subsection. If the State has
not by law designated one office for the receipt of such notices
of liens, the notice shall be filed in the office of the clerk of
the United States district court for the district in which the
real property is located. For purposes of this subsection, the
terms "purchaser" and "security interest" shall have the
definitions provided under section 6323(h) of title 26.
(4) Action in rem
The costs constituting the lien may be recovered in an action
in rem in the United States district court for the district in
which the removal or remedial action is occurring or has
occurred. Nothing in this subsection shall affect the right of
the United States to bring an action against any person to
recover all costs and damages for which such person is liable
under subsection (a) of this section.
(m) Maritime lien
All costs and damages for which the owner or operator of a vessel
is liable under subsection (a)(1) of this section with respect to a
release or threatened release from such vessel shall constitute a
maritime lien in favor of the United States on such vessel. Such
costs may be recovered in an action in rem in the district court of
the United States for the district in which the vessel may be
found. Nothing in this subsection shall affect the right of the
United States to bring an action against the owner or operator of
such vessel in any court of competent jurisdiction to recover such
costs.
(n) Liability of fiduciaries
(1) In general
The liability of a fiduciary under any provision of this
chapter for the release or threatened release of a hazardous
substance at, from, or in connection with a vessel or facility
held in a fiduciary capacity shall not exceed the assets held in
the fiduciary capacity.
(2) Exclusion
Paragraph (1) does not apply to the extent that a person is
liable under this chapter independently of the person's ownership
of a vessel or facility as a fiduciary or actions taken in a
fiduciary capacity.
(3) Limitation
Paragraphs (1) and (4) do not limit the liability pertaining to
a release or threatened release of a hazardous substance if
negligence of a fiduciary causes or contributes to the release or
threatened release.
(4) Safe harbor
A fiduciary shall not be liable in its personal capacity under
this chapter for -
(A) undertaking or directing another person to undertake a
response action under subsection (d)(1) of this section or
under the direction of an on scene coordinator designated under
the National Contingency Plan;
(B) undertaking or directing another person to undertake any
other lawful means of addressing a hazardous substance in
connection with the vessel or facility;
(C) terminating the fiduciary relationship;
(D) including in the terms of the fiduciary agreement a
covenant, warranty, or other term or condition that relates to
compliance with an environmental law, or monitoring, modifying
or enforcing the term or condition;
(E) monitoring or undertaking 1 or more inspections of the
vessel or facility;
(F) providing financial or other advice or counseling to
other parties to the fiduciary relationship, including the
settlor or beneficiary;
(G) restructuring, renegotiating, or otherwise altering the
terms and conditions of the fiduciary relationship;
(H) administering, as a fiduciary, a vessel or facility that
was contaminated before the fiduciary relationship began; or
(I) declining to take any of the actions described in
subparagraphs (B) through (H).
(5) Definitions
As used in this chapter:
(A) Fiduciary
The term "fiduciary" -
(i) means a person acting for the benefit of another party
as a bona fide -
(I) trustee;
(II) executor;
(III) administrator;
(IV) custodian;
(V) guardian of estates or guardian ad litem;
(VI) receiver;
(VII) conservator;
(VIII) committee of estates of incapacitated persons;
(IX) personal representative;
(X) trustee (including a successor to a trustee) under an
indenture agreement, trust agreement, lease, or similar
financing agreement, for debt securities, certificates of
interest or certificates of participation in debt
securities, or other forms of indebtedness as to which the
trustee is not, in the capacity of trustee, the lender; or
(XI) representative in any other capacity that the
Administrator, after providing public notice, determines to
be similar to the capacities described in subclauses (I)
through (X); and

(ii) does not include -
(I) a person that is acting as a fiduciary with respect
to a trust or other fiduciary estate that was organized for
the primary purpose of, or is engaged in, actively carrying
on a trade or business for profit, unless the trust or
other fiduciary estate was created as part of, or to
facilitate, 1 or more estate plans or because of the
incapacity of a natural person; or
(II) a person that acquires ownership or control of a
vessel or facility with the objective purpose of avoiding
liability of the person or of any other person.
(B) Fiduciary capacity
The term "fiduciary capacity" means the capacity of a person
in holding title to a vessel or facility, or otherwise having
control of or an interest in the vessel or facility, pursuant
to the exercise of the responsibilities of the person as a
fiduciary.
(6) Savings clause
Nothing in this subsection -
(A) affects the rights or immunities or other defenses that
are available under this chapter or other law that is
applicable to a person subject to this subsection; or
(B) creates any liability for a person or a private right of
action against a fiduciary or any other person.
(7) No effect on certain persons
Nothing in this subsection applies to a person if the person -
(A)(i) acts in a capacity other than that of a fiduciary or
in a beneficiary capacity; and
(ii) in that capacity, directly or indirectly benefits from a
trust or fiduciary relationship; or
(B)(i) is a beneficiary and a fiduciary with respect to the
same fiduciary estate; and
(ii) as a fiduciary, receives benefits that exceed customary
or reasonable compensation, and incidental benefits, permitted
under other applicable law.
(8) Limitation
This subsection does not preclude a claim under this chapter
against -
(A) the assets of the estate or trust administered by the
fiduciary; or
(B) a nonemployee agent or independent contractor retained by
a fiduciary.
(o) De micromis exemption
(1) In general
Except as provided in paragraph (2), a person shall not be
liable, with respect to response costs at a facility on the
National Priorities List, under this chapter if liability is
based solely on paragraph (3) or (4) of subsection (a) of this
section, and the person, except as provided in paragraph (4) of
this subsection, can demonstrate that -
(A) the total amount of the material containing hazardous
substances that the person arranged for disposal or treatment
of, arranged with a transporter for transport for disposal or
treatment of, or accepted for transport for disposal or
treatment, at the facility was less than 110 gallons of liquid
materials or less than 200 pounds of solid materials (or such
greater or lesser amounts as the Administrator may determine by
regulation); and
(B) all or part of the disposal, treatment, or transport
concerned occurred before April 1, 2001.
(2) Exceptions
Paragraph (1) shall not apply in a case in which -
(A) the President determines that -
(i) the materials containing hazardous substances referred
to in paragraph (1) have contributed significantly or could
contribute significantly, either individually or in the
aggregate, to the cost of the response action or natural
resource restoration with respect to the facility; or
(ii) the person has failed to comply with an information
request or administrative subpoena issued by the President
under this chapter or has impeded or is impeding, through
action or inaction, the performance of a response action or
natural resource restoration with respect to the facility; or

(B) a person has been convicted of a criminal violation for
the conduct to which the exemption would apply, and that
conviction has not been vitiated on appeal or otherwise.
(3) No judicial review
A determination by the President under paragraph (2)(A) shall
not be subject to judicial review.
(4) Nongovernmental third-party contribution actions
In the case of a contribution action, with respect to response
costs at a facility on the National Priorities List, brought by a
party, other than a Federal, State, or local government, under
this chapter, the burden of proof shall be on the party bringing
the action to demonstrate that the conditions described in
paragraph (1)(A) and (B) of this subsection are not met.
(p) Municipal solid waste exemption
(1) In general
Except as provided in paragraph (2) of this subsection, a
person shall not be liable, with respect to response costs at a
facility on the National Priorities List, under paragraph (3) of
subsection (a) of this section for municipal solid waste disposed
of at a facility if the person, except as provided in paragraph
(5) of this subsection, can demonstrate that the person is -
(A) an owner, operator, or lessee of residential property
from which all of the person's municipal solid waste was
generated with respect to the facility;
(B) a business entity (including a parent, subsidiary, or
affiliate of the entity) that, during its 3 taxable years
preceding the date of transmittal of written notification from
the President of its potential liability under this section,
employed on average not more than 100 full-time individuals, or
the equivalent thereof, and that is a small business concern
(within the meaning of the Small Business Act (15 U.S.C. 631 et
seq.)) from which was generated all of the municipal solid
waste attributable to the entity with respect to the facility;
or
(C) an organization described in section 501(c)(3) of title
26 and exempt from tax under section 501(a) of such title that,
during its taxable year preceding the date of transmittal of
written notification from the President of its potential
liability under this section, employed not more than 100 paid
individuals at the location from which was generated all of the
municipal solid waste attributable to the organization with
respect to the facility.

For purposes of this subsection, the term "affiliate" has the
meaning of that term provided in the definition of "small
business concern" in regulations promulgated by the Small
Business Administration in accordance with the Small Business Act
(15 U.S.C. 631 et seq.).
(2) Exception
Paragraph (1) shall not apply in a case in which the President
determines that -
(A) the municipal solid waste referred to in paragraph (1)
has contributed significantly or could contribute
significantly, either individually or in the aggregate, to the
cost of the response action or natural resource restoration
with respect to the facility;
(B) the person has failed to comply with an information
request or administrative subpoena issued by the President
under this chapter; or
(C) the person has impeded or is impeding, through action or
inaction, the performance of a response action or natural
resource restoration with respect to the facility.
(3) No judicial review
A determination by the President under paragraph (2) shall not
be subject to judicial review.
(4) Definition of municipal solid waste
(A) In general
For purposes of this subsection, the term "municipal solid
waste" means waste material -
(i) generated by a household (including a single or
multifamily residence); and
(ii) generated by a commercial, industrial, or
institutional entity, to the extent that the waste material -

(I) is essentially the same as waste normally generated
by a household;
(II) is collected and disposed of with other municipal
solid waste as part of normal municipal solid waste
collection services; and
(III) contains a relative quantity of hazardous
substances no greater than the relative quantity of
hazardous substances contained in waste material generated
by a typical single-family household.
(B) Examples
Examples of municipal solid waste under subparagraph (A)
include food and yard waste, paper, clothing, appliances,
consumer product packaging, disposable diapers, office
supplies, cosmetics, glass and metal food containers,
elementary or secondary school science laboratory waste, and
household hazardous waste.
(C) Exclusions
The term "municipal solid waste" does not include -
(i) combustion ash generated by resource recovery
facilities or municipal incinerators; or
(ii) waste material from manufacturing or processing
operations (including pollution control operations) that is
not essentially the same as waste normally generated by
households.
(5) Burden of proof
In the case of an action, with respect to response costs at a
facility on the National Priorities List, brought under this
section or section 9613 of this title by -
(A) a party, other than a Federal, State, or local
government, with respect to municipal solid waste disposed of
on or after April 1, 2001; or
(B) any party with respect to municipal solid waste disposed
of before April 1, 2001, the burden of proof shall be on the
party bringing the action to demonstrate that the conditions
described in paragraphs (1) and (4) for exemption for entities
and organizations described in paragraph (1)(B) and (C) are not
met.
(6) Certain actions not permitted
No contribution action may be brought by a party, other than a
Federal, State, or local government, under this chapter with
respect to circumstances described in paragraph (1)(A).
(7) Costs and fees
A nongovernmental entity that commences, after January 11,
2002, a contribution action under this chapter shall be liable to
the defendant for all reasonable costs of defending the action,
including all reasonable attorney's fees and expert witness fees,
if the defendant is not liable for contribution based on an
exemption under this subsection or subsection (o) of this
section.
(q) Contiguous properties
(1) Not considered to be an owner or operator
(A) In general
A person that owns real property that is contiguous to or
otherwise similarly situated with respect to, and that is or
may be contaminated by a release or threatened release of a
hazardous substance from, real property that is not owned by
that person shall not be considered to be an owner or operator
of a vessel or facility under paragraph (1) or (2) of
subsection (a) of this section solely by reason of the
contamination if -
(i) the person did not cause, contribute, or consent to the
release or threatened release;
(ii) the person is not -
(I) potentially liable, or affiliated with any other
person that is potentially liable, for response costs at a
facility through any direct or indirect familial
relationship or any contractual, corporate, or financial
relationship (other than a contractual, corporate, or
financial relationship that is created by a contract for
the sale of goods or services); or
(II) the result of a reorganization of a business entity
that was potentially liable;

(iii) the person takes reasonable steps to -
(I) stop any continuing release;
(II) prevent any threatened future release; and
(III) prevent or limit human, environmental, or natural
resource exposure to any hazardous substance released on or
from property owned by that person;

(iv) the person provides full cooperation, assistance, and
access to persons that are authorized to conduct response
actions or natural resource restoration at the vessel or
facility from which there has been a release or threatened
release (including the cooperation and access necessary for
the installation, integrity, operation, and maintenance of
any complete or partial response action or natural resource
restoration at the vessel or facility);
(v) the person -
(I) is in compliance with any land use restrictions
established or relied on in connection with the response
action at the facility; and
(II) does not impede the effectiveness or integrity of
any institutional control employed in connection with a
response action;

(vi) the person is in compliance with any request for
information or administrative subpoena issued by the
President under this chapter;
(vii) the person provides all legally required notices with
respect to the discovery or release of any hazardous
substances at the facility; and
(viii) at the time at which the person acquired the
property, the person -
(I) conducted all appropriate inquiry within the meaning
of section 9601(35)(B) of this title with respect to the
property; and
(II) did not know or have reason to know that the
property was or could be contaminated by a release or
threatened release of one or more hazardous substances from
other real property not owned or operated by the person.
(B) Demonstration
To qualify as a person described in subparagraph (A), a
person must establish by a preponderance of the evidence that
the conditions in clauses (i) through (viii) of subparagraph
(A) have been met.
(C) Bona fide prospective purchaser
Any person that does not qualify as a person described in
this paragraph because the person had, or had reason to have,
knowledge specified in subparagraph (A)(viii) at the time of
acquisition of the real property may qualify as a bona fide
prospective purchaser under section 9601(40) of this title if
the person is otherwise described in that section.
(D) Ground water
With respect to a hazardous substance from one or more
sources that are not on the property of a person that is a
contiguous property owner that enters ground water beneath the
property of the person solely as a result of subsurface
migration in an aquifer, subparagraph (A)(iii) shall not
require the person to conduct ground water investigations or to
install ground water remediation systems, except in accordance
with the policy of the Environmental Protection Agency
concerning owners of property containing contaminated aquifers,
dated May 24, 1995.
(2) Effect of law
With respect to a person described in this subsection, nothing
in this subsection -
(A) limits any defense to liability that may be available to
the person under any other provision of law; or
(B) imposes liability on the person that is not otherwise
imposed by subsection (a) of this section.
(3) Assurances
The Administrator may -
(A) issue an assurance that no enforcement action under this
chapter will be initiated against a person described in
paragraph (1); and
(B) grant a person described in paragraph (1) protection
against a cost recovery or contribution action under section
9613(f) of this title.
(r) Prospective purchaser and windfall lien
(1) Limitation on liability
Notwithstanding subsection (a)(1) of this section, a bona fide
prospective purchaser whose potential liability for a release or
threatened release is based solely on the purchaser's being
considered to be an owner or operator of a facility shall not be
liable as long as the bona fide prospective purchaser does not
impede the performance of a response action or natural resource
restoration.
(2) Lien
If there are unrecovered response costs incurred by the United
States at a facility for which an owner of the facility is not
liable by reason of paragraph (1), and if each of the conditions
described in paragraph (3) is met, the United States shall have a
lien on the facility, or may by agreement with the owner, obtain
from the owner a lien on any other property or other assurance of
payment satisfactory to the Administrator, for the unrecovered
response costs.
(3) Conditions
The conditions referred to in paragraph (2) are the following:
(A) Response action
A response action for which there are unrecovered costs of
the United States is carried out at the facility.
(B) Fair market value
The response action increases the fair market value of the
facility above the fair market value of the facility that
existed before the response action was initiated.
(4) Amount; duration
A lien under paragraph (2) -
(A) shall be in an amount not to exceed the increase in fair
market value of the property attributable to the response
action at the time of a sale or other disposition of the
property;
(B) shall arise at the time at which costs are first incurred
by the United States with respect to a response action at the
facility;
(C) shall be subject to the requirements of subsection (l)(3)
of this section; and
(D) shall continue until the earlier of -
(i) satisfaction of the lien by sale or other means; or
(ii) notwithstanding any statute of limitations under
section 9613 of this title, recovery of all response costs
incurred at the facility.

-SOURCE-
(Pub. L. 96-510, title I, Sec. 107, Dec. 11, 1980, 94 Stat. 2781;
Pub. L. 99-499, title I, Secs. 107(a)-(d)(2), (e), (f), 127(b),
(e), title II, Secs. 201, 207(c), Oct. 17, 1986, 100 Stat.
1628-1630, 1692, 1693, 1705; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, (continued)