CERCLA (42 USC 9601 et seq.)

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§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE

Sec.

9602.

Designation of additional hazardous substances and establishment of reportable released quantities; regulations.
Notification requirements respecting released
substances.
Response authorities.
National contingency plan.
Abatement actions.
Liability.
Financial responsibility.
Civil penalties and awards.
Employee protection.
Uses of Fund.
Claims procedure.
Civil proceedings.
Relationship to other law.
Presidential delegation and assignment of duties or powers and promulgation of regulations.
Schedules.
Public participation.
High priority for drinking water supplies.
Response action contractors.
Federal facilities.
Cleanup standards.
Settlements.
Reimbursement to local governments.
Methane recovery.
Section 6921(b)(3)(A)(i) waste.
Indian tribes.
Recycling transactions.
State response programs.

9603.
9604.
9605.
9606.
9607.
9608.
9609.
9610.
9611.
9612.
9613.
9614.
9615.

9616.
9617.
9618.
9619.
9620.
9621.
9622.
9623.
9624.
9625.
9626.
9627.
9628.

SUBCHAPTER II—HAZARDOUS SUBSTANCE
RESPONSE REVENUE
PART A—HAZARDOUS SUBSTANCE RESPONSE TRUST
FUND
9631 to 9633. Repealed.
PART B—POST-CLOSURE LIABILITY TRUST FUND
9641.

Repealed.

SUBCHAPTER III—MISCELLANEOUS PROVISIONS
9651.
9652.
9653.
9654.
9655.
9656.

9657.
9658.
9659.
9660.
9660a.
9661.
9662.

Reports and studies.
Effective dates; savings provisions.
Repealed.
Applicability of Federal water pollution control funding, etc., provisions.
Legislative veto of rule or regulation.
Transportation of hazardous substances; listing as hazardous material; liability for release.
Separability; contribution.
Actions under State law for damages from exposure to hazardous substances.
Citizens suits.
Research, development, and demonstration.
Grant program.
Love Canal property acquisition.
Limitation on contract and borrowing authority.

SUBCHAPTER IV—POLLUTION INSURANCE
9671.
9672.
9673.
9674.
9675.

Definitions.
State laws; scope of subchapter.
Risk retention groups.
Purchasing groups.
Applicability of securities laws.

SUBCHAPTER I—HAZARDOUS SUBSTANCES
RELEASES, LIABILITY, COMPENSATION
§ 9601. Definitions
For purpose of this subchapter—
(1) The term ‘‘act of God’’ means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable,

Page 7650

and irresistible character, the effects of which
could not have been prevented or avoided by
the exercise of due care or foresight.
(2) The term ‘‘Administrator’’ means the Administrator of the United States Environmental Protection Agency.
(3) The term ‘‘barrel’’ means forty-two
United States gallons at sixty degrees Fahrenheit.
(4) The term ‘‘claim’’ means a demand in
writing for a sum certain.
(5) The term ‘‘claimant’’ means any person
who presents a claim for compensation under
this chapter.
(6) The term ‘‘damages’’ means damages for
injury or loss of natural resources as set forth
in section 9607(a) or 9611(b) of this title.
(7) The term ‘‘drinking water supply’’ means
any raw or finished water source that is or
may be used by a public water system (as defined in the Safe Drinking Water Act [42
U.S.C. 300f et seq.]) or as drinking water by
one or more individuals.
(8) The term ‘‘environment’’ means (A) the
navigable waters, the waters of the contiguous
zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under
the Magnuson-Stevens Fishery Conservation
and Management Act [16 U.S.C. 1801 et seq.],
and (B) any other surface water, ground water,
drinking water supply, land surface or subsurface strata, or ambient air within the
United States or under the jurisdiction of the
United States.
(9) The term ‘‘facility’’ means (A) any building, structure, installation, equipment, pipe or
pipeline (including any pipe into a sewer or
publicly owned treatment works), well, pit,
pond, lagoon, impoundment, ditch, landfill,
storage container, motor vehicle, rolling
stock, or aircraft, or (B) any site or area where
a hazardous substance has been deposited,
stored, disposed of, or placed, or otherwise
come to be located; but does not include any
consumer product in consumer use or any vessel.
(10) The term ‘‘federally permitted release’’
means (A) discharges in compliance with a
permit under section 402 of the Federal Water
Pollution Control Act [33 U.S.C. 1342], (B) discharges resulting from circumstances identified and reviewed and made part of the public
record with respect to a permit issued or
modified under section 402 of the Federal
Water Pollution Control Act and subject to a
condition of such permit, (C) continuous or anticipated intermittent discharges from a point
source, identified in a permit or permit application under section 402 of the Federal Water
Pollution Control Act, which are caused by
events occurring within the scope of relevant
operating or treatment systems, (D) discharges in compliance with a legally enforceable permit under section 404 of the Federal
Water Pollution Control Act [33 U.S.C. 1344],
(E) releases in compliance with a legally enforceable final permit issued pursuant to section 3005(a) through (d) of the Solid Waste Disposal Act [42 U.S.C. 6925(a)–(d)] from a hazardous waste treatment, storage, or disposal

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

facility when such permit specifically identifies the hazardous substances and makes such
substances subject to a standard of practice,
control procedure or bioassay limitation or
condition, or other control on the hazardous
substances in such releases, (F) any release in
compliance with a legally enforceable permit
issued under section 1412 of title 33 of 1 section
1413 of title 33, (G) any injection of fluids authorized under Federal underground injection
control programs or State programs submitted
for Federal approval (and not disapproved by
the Administrator of the Environmental Protection Agency) pursuant to part C of the Safe
Drinking Water Act [42 U.S.C. 300h et seq.], (H)
any emission into the air subject to a permit
or control regulation under section 111 [42
U.S.C. 7411], section 112 [42 U.S.C. 7412], title I
part C [42 U.S.C. 7470 et seq.], title I part D [42
U.S.C. 7501 et seq.], or State implementation
plans submitted in accordance with section 110
of the Clean Air Act [42 U.S.C. 7410] (and not
disapproved by the Administrator of the Environmental Protection Agency), including any
schedule or waiver granted, promulgated, or
approved under these sections, (I) any injection of fluids or other materials authorized
under applicable State law (i) for the purpose
of stimulating or treating wells for the production of crude oil, natural gas, or water, (ii)
for the purpose of secondary, tertiary, or other
enhanced recovery of crude oil or natural gas,
or (iii) which are brought to the surface in
conjunction with the production of crude oil
or natural gas and which are reinjected, (J)
the introduction of any pollutant into a publicly owned treatment works when such pollutant is specified in and in compliance with
applicable pretreatment standards of section
307(b) or (c) of the Clean Water Act [33 U.S.C.
1317(b), (c)] and enforceable requirements in a
pretreatment program submitted by a State or
municipality for Federal approval under section 402 of such Act [33 U.S.C. 1342], and (K)
any release of source, special nuclear, or byproduct material, as those terms are defined
in the Atomic Energy Act of 1954 [42 U.S.C.
2011 et seq.], in compliance with a legally enforceable license, permit, regulation, or order
issued pursuant to the Atomic Energy Act of
1954.
(11) The term ‘‘Fund’’ or ‘‘Trust Fund’’
means the Hazardous Substance Superfund established by section 9507 of title 26.
(12) The term ‘‘ground water’’ means water
in a saturated zone or stratum beneath the
surface of land or water.
(13) The term ‘‘guarantor’’ means any person, other than the owner or operator, who
provides evidence of financial responsibility
for an owner or operator under this chapter.
(14) The term ‘‘hazardous substance’’ means
(A) any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control Act [33 U.S.C. 1321(b)(2)(A)], (B)
any element, compound, mixture, solution, or
substance designated pursuant to section 9602
of this title, (C) any hazardous waste having
the characteristics identified under or listed
1 So in original. Probably should be ‘‘or’’.

§ 9601

pursuant to section 3001 of the Solid Waste
Disposal Act [42 U.S.C. 6921] (but not including
any waste the regulation of which under the
Solid Waste Disposal Act [42 U.S.C. 6901 et
seq.] has been suspended by Act of Congress),
(D) any toxic pollutant listed under section
307(a) of the Federal Water Pollution Control
Act [33 U.S.C. 1317(a)], (E) any hazardous air
pollutant listed under section 112 of the Clean
Air Act [42 U.S.C. 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator
has taken action pursuant to section 7 of the
Toxic Substances Control Act [15 U.S.C. 2606].
The term does not include petroleum, including crude oil or any fraction thereof which is
not otherwise specifically listed or designated
as a hazardous substance under subparagraphs
(A) through (F) of this paragraph, and the
term does not include natural gas, natural gas
liquids, liquefied natural gas, or synthetic gas
usable for fuel (or mixtures of natural gas and
such synthetic gas).
(15) The term ‘‘navigable waters’’ or ‘‘navigable waters of the United States’’ means the
waters of the United States, including the territorial seas.
(16) The term ‘‘natural resources’’ means
land, fish, wildlife, biota, air, water, ground
water, drinking water supplies, and other such
resources belonging to, managed by, held in
trust by, appertaining to, or otherwise controlled by the United States (including the resources of the fishery conservation zone established by the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1801
et seq.]), any State or local government, any
foreign government, any Indian tribe, or, if
such resources are subject to a trust restriction on alienation, any member of an Indian
tribe.
(17) The term ‘‘offshore facility’’ means any
facility of any kind located in, on, or under,
any of the navigable waters of the United
States, and any facility of any kind which is
subject to the jurisdiction of the United
States and is located in, on, or under any
other waters, other than a vessel or a public
vessel.
(18) The term ‘‘onshore facility’’ means any
facility (including, but not limited to, motor
vehicles and rolling stock) of any kind located
in, on, or under, any land or nonnavigable waters within the United States.
(19) The term ‘‘otherwise subject to the jurisdiction of the United States’’ means subject
to the jurisdiction of the United States by virtue of United States citizenship, United States
vessel documentation or numbering, or as provided by international agreement to which the
United States is a party.
(20)(A) The term ‘‘owner or operator’’ means
(i) in the case of a vessel, any person owning,
operating, or chartering by demise, such vessel, (ii) in the case of an onshore facility or an
offshore facility, any person owning or operating such facility, and (iii) in the case of any
facility, title or control of which was conveyed
due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to a
unit of State or local government, any person

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE

who owned, operated, or otherwise controlled
activities at such facility immediately beforehand. Such term does not include a person,
who, without participating in the management of a vessel or facility, holds indicia of
ownership primarily to protect his security interest in the vessel or facility.
(B) In the case of a hazardous substance
which has been accepted for transportation by
a common or contract carrier and except as
provided in section 9607(a)(3) or (4) of this
title, (i) the term ‘‘owner or operator’’ shall
mean such common carrier or other bona fide
for hire carrier acting as an independent contractor during such transportation, (ii) the
shipper of such hazardous substance shall not
be considered to have caused or contributed to
any release during such transportation which
resulted solely from circumstances or conditions beyond his control.
(C) In the case of a hazardous substance
which has been delivered by a common or contract carrier to a disposal or treatment facility and except as provided in section 9607(a)(3)
or (4) of this title, (i) the term ‘‘owner or operator’’ shall not include such common or contract carrier, and (ii) such common or contract carrier shall not be considered to have
caused or contributed to any release at such
disposal or treatment facility resulting from
circumstances or conditions beyond its control.
(D) The term ‘‘owner or operator’’ does not
include a unit of State or local government
which acquired ownership or control 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 or local government which has caused or contributed to the
release or threatened release of a hazardous
substance from the facility, and such a State
or local government shall be subject to the
provisions of this chapter in the same manner
and to the same extent, both procedurally and
substantively, as any nongovernmental entity,
including liability under section 9607 of this
title.
(E) EXCLUSION OF CERTAIN ALASKA NATIVE
VILLAGES AND NATIVE CORPORATIONS.—
(i) IN GENERAL.—The term ‘‘owner or operator’’ does not include, with respect to a facility conveyed to a Native village or Native
Corporation (as those terms are defined in
section 3 of the Alaska Native Claims Settlement Act [43 U.S.C. 1602]) under the Alaska
Native Claims Settlement Act [43 U.S.C. 1601
et seq.]—
(I) the Native village or Native Corporation that received the facility from the
United States Government; or
(II) a successor in interest to which the
facility was conveyed under section 14(c)
of such Act [43 U.S.C. 1613(c)].
(ii) LIMITATION.—The exclusion provided
under this subparagraph shall not apply to
any entity described in clause (i) that causes
or contributes to a release or threatened re-

Page 7652

lease of a hazardous substance from the facility 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’’ does
not include a person that is a lender that,
without participating in the management of
a vessel or facility, holds indicia of ownership primarily to protect the security interest of the person in the vessel or facility.
(ii) FORECLOSURE.—The term ‘‘owner or operator’’ does not include a person that is a
lender that did not participate in management of a vessel or facility prior to foreclosure, notwithstanding that the person—
(I) forecloses on the vessel or facility;
and
(II) after foreclosure, sells, re-leases (in
the case of a lease finance transaction), or
liquidates the vessel or facility, maintains
business activities, winds up operations,
undertakes a response action under section
9607(d)(1) of this title or under the direction of an on-scene coordinator appointed
under the National Contingency Plan, with
respect to the vessel or facility, or takes
any other measure to preserve, protect, or
prepare the vessel or facility prior to sale
or disposition,
if the person seeks to sell, re-lease (in the
case of a lease finance transaction), or otherwise divest the person of the vessel or facility at the earliest practicable, commercially reasonable time, on commercially reasonable terms, taking into account market
conditions and legal and regulatory requirements.
(G) PARTICIPATION IN MANAGEMENT.—For purposes of subparagraph (F)—
(i) the term ‘‘participate in management’’—
(I) means actually participating in the
management or operational affairs of a
vessel or facility; and
(II) does not include merely having the
capacity to influence, or the unexercised
right to control, vessel or facility operations;
(ii) a person that is a lender and that holds
indicia of ownership primarily to protect a
security interest in a vessel or facility shall
be considered to participate in management
only if, while the borrower is still in possession of the vessel or facility encumbered by
the security interest, the person—
(I) exercises decisionmaking control over
the environmental compliance related to
the vessel or facility, such that the person
has undertaken responsibility for the hazardous substance handling or disposal
practices related to the vessel or facility;
or
(II) exercises control at a level comparable to that of a manager of the vessel
or facility, such that the person has assumed or manifested responsibility—
(aa) for the overall management of the
vessel or facility encompassing day-to-

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

day decisionmaking with respect to environmental compliance; or
(bb) over all or substantially all of the
operational functions (as distinguished
from financial or administrative functions) of the vessel or facility other than
the function of environmental compliance;
(iii) the term ‘‘participate in management’’ does not include performing an act or
failing to act prior to the time at which a security interest is created in a vessel or facility; and
(iv) the term ‘‘participate in management’’
does not include—
(I) holding a security interest or abandoning or releasing a security interest;
(II) including in the terms of an extension of credit, or in a contract or security
agreement relating to the extension, a
covenant, warranty, or other term or condition that relates to environmental compliance;
(III) monitoring or enforcing the terms
and conditions of the extension of credit or
security interest;
(IV) monitoring or undertaking 1 or
more inspections of the vessel or facility;
(V) requiring a response action or other
lawful means of addressing the release or
threatened release of a hazardous substance in connection with the vessel or facility prior to, during, or on the expiration
of the term of the extension of credit;
(VI) providing financial or other advice
or counseling in an effort to mitigate, prevent, or cure default or diminution in the
value of the vessel or facility;
(VII) restructuring, renegotiating, or
otherwise agreeing to alter the terms and
conditions of the extension of credit or security interest, exercising forbearance;
(VIII) exercising other remedies that
may be available under applicable law for
the breach of a term or condition of the
extension of credit or security agreement;
or
(IX) conducting a response action under
section 9607(d) of this title or under the direction of an on-scene coordinator appointed under the National Contingency
Plan,
if the actions do not rise to the level of participating in management (within the meaning of clauses (i) and (ii)).
(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 or facility and does
not during the lease term control the daily
operations or maintenance of the vessel or
facility; or
(II) that conforms with regulations
issued by the appropriate Federal banking
agency or the appropriate State bank supervisor (as those terms are defined in section 1813 of title 12) or with regulations
issued by the National Credit Union Administration Board, as appropriate.

§ 9601

(ii) FINANCIAL OR ADMINISTRATIVE FUNCTION.—The term ‘‘financial or administrative function’’ includes a function such as
that of a credit manager, accounts payable
officer, accounts receivable officer, personnel manager, comptroller, or chief financial officer, or a similar function.
(iii) FORECLOSURE; FORECLOSE.—The terms
‘‘foreclosure’’ and ‘‘foreclose’’ mean, respectively, acquiring, and to acquire, a vessel or
facility through—
(I)(aa) purchase at sale under a judgment
or decree, power of sale, or nonjudicial
foreclosure sale;
(bb) a deed in lieu of foreclosure, or similar conveyance from a trustee; or
(cc) repossession,
if the vessel or facility was security for an
extension of credit previously contracted;
(II) conveyance pursuant to an extension
of credit previously contracted, including
the termination of a lease agreement; or
(III) any other formal or informal manner by which the person acquires, for subsequent disposition, title to or possession
of a vessel or facility in order to protect
the security interest of the person.
(iv) LENDER.—The term ‘‘lender’’ means—
(I) an insured depository institution (as
defined in section 1813 of title 12);
(II) an insured credit union (as defined in
section 1752 of title 12);
(III) a bank or association chartered
under the Farm Credit Act of 1971 (12
U.S.C. 2001 et seq.);
(IV) a leasing or trust company that is
an affiliate of an insured depository institution;
(V) any person (including a successor or
assignee of any such person) that makes a
bona fide extension of credit to or takes or
acquires a security interest from a nonaffiliated person;
(VI) the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Agricultural
Mortgage Corporation, or any other entity
that in a bona fide manner buys or sells
loans or interests in loans;
(VII) a person that insures or guarantees
against a default in the repayment of an
extension of credit, or acts as a surety
with respect to an extension of credit, to a
nonaffiliated person; and
(VIII) a person that provides title insurance and that acquires a vessel or facility
as a result of assignment or conveyance in
the course of underwriting claims and
claims settlement.
(v) OPERATIONAL FUNCTION.—The term
‘‘operational function’’ includes a function
such as that of a facility or plant manager,
operations manager, chief operating officer,
or chief executive officer.
(vi) SECURITY INTEREST.—The term ‘‘security interest’’ includes a right under a mortgage, deed of trust, assignment, judgment
lien, pledge, security agreement, factoring
agreement, or lease and any other right accruing to a person to secure the repayment

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

of money, the performance of a duty, or any
other obligation by a nonaffiliated person.

Page 7654

(21) The term ‘‘person’’ means an individual,
firm, corporation, association, partnership,
consortium, joint venture, commercial entity,
United States Government, State, municipality, commission, political subdivision of a
State, or any interstate body.
(22) The term ‘‘release’’ means any spilling,
leaking,
pumping,
pouring,
emitting,
emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other
closed receptacles containing any hazardous
substance or pollutant or contaminant), but
excludes (A) any release which results in exposure to persons solely within a workplace,
with respect to a claim which such persons
may assert against the employer of such persons, (B) emissions from the engine exhaust of
a motor vehicle, rolling stock, aircraft, vessel,
or pipeline pumping station engine, (C) release
of source, byproduct, or special nuclear material from a nuclear incident, as those terms
are defined in the Atomic Energy Act of 1954
[42 U.S.C. 2011 et seq.], if such release is subject to requirements with respect to financial
protection established by the Nuclear Regulatory Commission under section 170 of such
Act [42 U.S.C. 2210], or, for the purposes of section 9604 of this title or any other response action, any release of source byproduct, or special nuclear material from any processing site
designated under section 7912(a)(1) or 7942(a) of
this title, and (D) the normal application of
fertilizer.
(23) The terms ‘‘remove’’ or ‘‘removal’’
means 2 the cleanup or removal of released
hazardous substances from the environment,
such actions as may be necessary taken in the
event of the threat of release of hazardous substances into the environment, such actions as
may be necessary to monitor, assess, and
evaluate the release or threat of release of
hazardous substances, the disposal of removed
material, or the taking of such other actions
as may be necessary to prevent, minimize, or
mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release.
The term includes, in addition, without being
limited to, security fencing or other measures
to limit access, provision of alternative water
supplies, temporary evacuation and housing of
threatened individuals not otherwise provided
for, action taken under section 9604(b) of this
title, and any emergency assistance which
may be provided under the Disaster Relief and
Emergency Assistance Act [42 U.S.C. 5121 et
seq.].
(24) The terms ‘‘remedy’’ or ‘‘remedial action’’ means 2 those actions consistent with
permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or
minimize the release of hazardous substances

so that they do not migrate to cause substantial danger to present or future public health
or welfare or the environment. The term includes, but is not limited to, such actions at
the location of the release as storage, confinement, perimeter protection using dikes,
trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances
and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring
reasonably required to assure that such actions protect the public health and welfare
and the environment. The term includes the
costs of permanent relocation of residents and
businesses and community facilities where the
President determines that, alone or in combination with other measures, such relocation
is more cost-effective than and environmentally preferable to the transportation,
storage, treatment, destruction, or secure disposition offsite of hazardous substances, or
may otherwise be necessary to protect the
public health or welfare; the term includes offsite transport and offsite storage, treatment,
destruction, or secure disposition of hazardous
substances and associated contaminated materials.
(25) The terms ‘‘respond’’ or ‘‘response’’
means 2 remove, removal, remedy, and remedial action;,3 all such terms (including the
terms ‘‘removal’’ and ‘‘remedial action’’) include enforcement activities related thereto.
(26) The terms ‘‘transport’’ or ‘‘transportation’’ means 2 the movement of a hazardous
substance by any mode, including a hazardous
liquid pipeline facility (as defined in section
60101(a) of title 49), and in the case of a hazardous substance which has been accepted for
transportation by a common or contract carrier, the term ‘‘transport’’ or ‘‘transportation’’
shall include any stoppage in transit which is
temporary, incidental to the transportation
movement, and at the ordinary operating convenience of a common or contract carrier, and
any such stoppage shall be considered as a
continuity of movement and not as the storage of a hazardous substance.
(27) The terms ‘‘United States’’ and ‘‘State’’
include the several States of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American
Samoa, the United States Virgin Islands, the
Commonwealth of the Northern Marianas, and
any other territory or possession over which
the United States has jurisdiction.
(28) The term ‘‘vessel’’ means every description of watercraft or other artificial contrivance used, or capable of being used, as a means
of transportation on water.
(29) The terms ‘‘disposal’’, ‘‘hazardous
waste’’, and ‘‘treatment’’ shall have the meaning provided in section 1004 of the Solid Waste
Disposal Act [42 U.S.C. 6903].
(30) The terms ‘‘territorial sea’’ and ‘‘contiguous zone’’ shall have the meaning provided in

2 So in original. Probably should be ‘‘mean’’.

3 So in original.

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

section 502 of the Federal Water Pollution
Control Act [33 U.S.C. 1362].
(31) The term ‘‘national contingency plan’’
means the national contingency plan published under section 311(c) 4 of the Federal
Water Pollution Control Act or revised pursuant to section 9605 of this title.
(32) The terms ‘‘liable’’ or ‘‘liability’’ under
this subchapter shall be construed to be the
standard of liability which obtains under section 311 of the Federal Water Pollution Control Act [33 U.S.C. 1321].
(33) The term ‘‘pollutant or contaminant’’
shall include, but not be limited to, any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure,
ingestion, inhalation, or assimilation into any
organism, either directly from the environment or indirectly by ingestion through food
chains, will or may reasonably be anticipated
to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological
malfunctions (including malfunctions in reproduction) or physical deformations, in such
organisms or their offspring; except that the
term ‘‘pollutant or contaminant’’ shall not include petroleum, including crude oil or any
fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of
paragraph (14) and shall not include natural
gas, liquefied natural gas, or synthetic gas of
pipeline quality (or mixtures of natural gas
and such synthetic gas).
(34) The term ‘‘alternative water supplies’’
includes, but is not limited to, drinking water
and household water supplies.
(35)(A) The term ‘‘contractual relationship’’,
for the purpose of section 9607(b)(3) of this
title, includes, but is not limited to, land contracts, deeds, easements, leases, or other instruments transferring title or possession, unless the real property on which the facility
concerned is located was acquired by the defendant after the disposal or placement of the
hazardous substance on, in, or at the facility,
and one or more of the circumstances described in clause (i), (ii), or (iii) is also established by the defendant by a preponderance of
the evidence:
(i) At the time the defendant acquired the
facility the defendant did not know and had
no reason to know that any hazardous substance which is the subject of the release or
threatened release was disposed of on, in, or
at the facility.
(ii) The defendant is a government entity
which acquired the facility by escheat, or
through any other involuntary transfer or
acquisition, or through the exercise of eminent domain authority by purchase or condemnation.
(iii) The defendant acquired the facility by
inheritance or bequest.
In addition to establishing the foregoing, the
defendant must establish that the defendant
has satisfied the requirements of section
4 See References in Text note below.

§ 9601

9607(b)(3)(a) and (b) of this title, provides full
cooperation, assistance, and facility access to
the persons that are authorized to conduct response actions at the facility (including the
cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response action at the facility), is in compliance with any
land use restrictions established or relied on
in connection with the response action at a facility, and does not impede the effectiveness
or integrity of any institutional control employed at the facility in connection with a response action.
(B) REASON TO KNOW.—
(i) ALL APPROPRIATE INQUIRIES.—To establish that the defendant had no reason to
know of the matter described in subparagraph (A)(i), the defendant must demonstrate to a court that—
(I) on or before the date on which the defendant acquired the facility, the defendant carried out all appropriate inquiries,
as provided in clauses (ii) and (iv), into the
previous ownership and uses of the facility
in accordance with generally accepted
good commercial and customary standards
and practices; and
(II) the defendant took reasonable steps
to—
(aa) stop any continuing release;
(bb) prevent any threatened future release; and
(cc) prevent or limit any human, environmental, or natural resource exposure
to any previously released hazardous
substance.
(ii) STANDARDS AND PRACTICES.—Not later
than 2 years after January 11, 2002, the Administrator shall by regulation establish
standards and practices for the purpose of
satisfying the requirement to carry out all
appropriate inquiries under clause (i).
(iii) CRITERIA.—In promulgating regulations that establish the standards and practices referred to in clause (ii), the Administrator shall include each of the following:
(I) The results of an inquiry by an environmental professional.
(II) Interviews with past and present
owners, operators, and occupants of the facility for the purpose of gathering information regarding the potential for contamination at the facility.
(III) Reviews of historical sources, such
as chain of title documents, aerial photographs, building department records, and
land use records, to determine previous
uses and occupancies of the real property
since the property was first developed.
(IV) Searches for recorded environmental cleanup liens against the facility
that are filed under Federal, State, or
local law.
(V) Reviews of Federal, State, and local
government
records,
waste
disposal
records, underground storage tank records,
and hazardous waste handling, generation,
treatment, disposal, and spill records, concerning contamination at or near the facility.

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE
(VI) Visual inspections of the facility
and of adjoining properties.
(VII) Specialized knowledge or experience on the part of the defendant.
(VIII) The relationship of the purchase
price to the value of the property, if the
property was not contaminated.
(IX) Commonly known or reasonably ascertainable information about the property.
(X) The degree of obviousness of the
presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation.
(iv) INTERIM STANDARDS AND PRACTICES.—
(I) PROPERTY PURCHASED BEFORE MAY 31,
1997.—With respect to property purchased
before May 31, 1997, in making a determination with respect to a defendant described in clause (i), a court shall take
into account—
(aa) any specialized knowledge or experience on the part of the defendant;
(bb) the relationship of the purchase
price to the value of the property, if the
property was not contaminated;
(cc) commonly known or reasonably
ascertainable information about the
property;
(dd) the obviousness of the presence or
likely presence of contamination at the
property; and
(ee) the ability of the defendant to detect the contamination by appropriate
inspection.
(II) PROPERTY PURCHASED ON OR AFTER
MAY 31, 1997.—With respect to property purchased on or after May 31, 1997, and until
the Administrator promulgates the regulations described in clause (ii), the procedures of the American Society for Testing
and Materials, including the document
known as ‘‘Standard E1527–97’’, entitled
‘‘Standard Practice for Environmental
Site Assessment: Phase 1 Environmental
Site Assessment Process’’, shall satisfy the
requirements in clause (i).

(v) SITE INSPECTION AND TITLE SEARCH.—In
the case of property for residential use or
other similar use purchased by a nongovernmental or noncommercial entity, a facility
inspection and title search that reveal no
basis for further investigation shall be considered to satisfy the requirements of this
subparagraph.
(C) Nothing in this paragraph or in section
9607(b)(3) of this title shall diminish the liability of any previous owner or operator of such
facility who would otherwise be liable under
this chapter. Notwithstanding this paragraph,
if the defendant obtained actual knowledge of
the release or threatened release of a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to another person without disclosing such
knowledge, such defendant shall be treated as
liable under section 9607(a)(1) of this title and

Page 7656

no defense under section 9607(b)(3) of this title
shall be available to such defendant.
(D) Nothing in this paragraph shall affect
the liability under this chapter of a defendant
who, by any act or omission, caused or contributed to the release or threatened release of
a hazardous substance which is the subject of
the action relating to the facility.
(36) The term ‘‘Indian tribe’’ means any Indian tribe, band, nation, or other organized
group or community, including any Alaska
Native village but not including any Alaska
Native regional or village corporation, which
is recognized as eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.
(37)(A) The term ‘‘service station dealer’’
means any person—
(i) who owns or operates a motor vehicle
service station, filling station, garage, or
similar retail establishment engaged in the
business of selling, repairing, or servicing
motor vehicles, where a significant percentage of the gross revenue of the establishment is derived from the fueling, repairing,
or servicing of motor vehicles, and
(ii) who accepts for collection, accumulation, and delivery to an oil recycling facility, recycled oil that (I) has been removed
from the engine of a light duty motor vehicle or household appliances by the owner of
such vehicle or appliances, and (II) is presented, by such owner, to such person for
collection, accumulation, and delivery to an
oil recycling facility.
(B) For purposes of section 9614(c) of this
title, the term ‘‘service station dealer’’ shall,
notwithstanding the provisions of subparagraph (A), include any government agency
that establishes a facility solely for the purpose of accepting recycled oil that satisfies
the criteria set forth in subclauses (I) and (II)
of subparagraph (A)(ii), and, with respect to
recycled oil that satisfies the criteria set forth
in subclauses (I) and (II), owners or operators
of refuse collection services who are compelled
by State law to collect, accumulate, and deliver such oil to an oil recycling facility.
(C) The President shall promulgate regulations regarding the determination of what
constitutes a significant percentage of the
gross revenues of an establishment for purposes of this paragraph.
(38) The term ‘‘incineration vessel’’ means
any vessel which carries hazardous substances
for the purpose of incineration of such substances, so long as such substances or residues
of such substances are on board.
(39) BROWNFIELD SITE.—
(A) IN GENERAL.—The term ‘‘brownfield
site’’ means real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or
contaminant.
(B) EXCLUSIONS.—The term ‘‘brownfield
site’’ does not include—
(i) a facility that is the subject of a
planned or ongoing removal action under
this subchapter;

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

(ii) a facility that is listed on the National Priorities List or is proposed for
listing;
(iii) a facility that is the subject of a
unilateral administrative order, a court
order, an administrative order on consent
or judicial consent decree that has been
issued to or entered into by the parties
under this chapter;
(iv) a facility that is the subject of a unilateral administrative order, a court order,
an administrative order on consent or judicial consent decree that has been issued
to or entered into by the parties, or a facility to which a permit has been issued by
the United States or an authorized State
under the Solid Waste Disposal Act (42
U.S.C. 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. 1321) [33
U.S.C. § 1251 et seq.], the Toxic Substances
Control Act (15 U.S.C. 2601 et seq.), or the
Safe Drinking Water Act (42 U.S.C. 300f et
seq.);
(v) a facility that—
(I) is subject to corrective action under
section 3004(u) or 3008(h) of the Solid
Waste Disposal Act (42 U.S.C. 6924(u),
6928(h)); and
(II) to which a corrective action permit
or order has been issued or modified to
require the implementation of corrective
measures;
(vi) a land disposal unit with respect to
which—
(I) a closure notification under subtitle
C of the Solid Waste Disposal Act (42
U.S.C. 6921 et seq.) has been submitted;
and
(II) closure requirements have been
specified in a closure plan or permit;
(vii) a facility that is subject to the jurisdiction, custody, or control of a department, agency, or instrumentality of the
United States, except for land held in trust
by the United States for an Indian tribe;
(viii) a portion of a facility—
(I) at which there has been a release of
polychlorinated biphenyls; and
(II) that is subject to remediation
under the Toxic Substances Control Act
(15 U.S.C. 2601 et seq.); or
(ix) a portion of a facility, for which portion, assistance for response activity has
been obtained under subtitle I of the Solid
Waste Disposal Act (42 U.S.C. 6991 et seq.)
from the Leaking Underground Storage
Tank Trust Fund established under section
9508 of title 26.
(C) SITE-BY-SITE DETERMINATIONS.—Notwithstanding subparagraph (B) and on a siteby-site basis, the President may authorize
financial assistance under section 9604(k) of
this title to an eligible entity at a site included in clause (i), (iv), (v), (vi), (viii), or
(ix) of subparagraph (B) if the President
finds that financial assistance will protect
human health and the environment, and either promote economic development or enable the creation of, preservation of, or addi-

§ 9601

tion to parks, greenways, undeveloped property, other recreational property, or other
property used for nonprofit purposes.
(D) ADDITIONAL AREAS.—For the purposes
of section 9604(k) of this title, the term
‘‘brownfield site’’ includes a site that—
(i) meets the definition of ‘‘brownfield
site’’ under subparagraphs (A) through (C);
and
(ii)(I) is contaminated by a controlled
substance (as defined in section 802 of title
21);
(II)(aa) is contaminated by petroleum or
a petroleum product excluded from the
definition of ‘‘hazardous substance’’ under
this section; and
(bb) is a site for which there is no viable
responsible party and that is determined
by the Administrator or the State, as appropriate, to be a site that will be assessed, investigated, or cleaned up by a
person that is not potentially liable 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
Disposal Act (42 U.S.C. 6991b(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—
(i) a person who—
(I) acquires ownership of the facility
after January 11, 2002; and
(II) establishes by a preponderance of
the evidence each of the criteria described in clauses (i) through (viii) of
subparagraph (B); and
(ii) a person—
(I) who acquires a leasehold interest in
the facility after January 11, 2002;
(II) who establishes by a preponderance
of the evidence that the leasehold interest is not designed to avoid liability
under this chapter by any person; and
(III) with respect to whom any of the
following conditions apply:
(aa) The owner of the facility that is
subject to the leasehold interest is a
person described in clause (i).
(bb)(AA) The owner of the facility
that is subject to the leasehold interest was a person described in clause (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) of subparagraph (B) due to circumstances unrelated to any action of the person who
holds the leasehold interest; and
(BB) the person who holds the leasehold interest establishes by a preponderance of the evidence each of the criteria described in clauses (i), (iii), (iv),
(v), (vi), (vii), and (viii) of subparagraph (B).
(cc) The person who holds the leasehold interest establishes by a prepon-

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE
derance of the evidence each of the criteria described in clauses (i) through
(viii) of subparagraph (B).

(B) CRITERIA.—The criteria described in
this subparagraph are as follows:
(i) DISPOSAL PRIOR TO ACQUISITION.—All
disposal of hazardous substances at the facility occurred before the person acquired
the facility.
(ii) INQUIRIES.—
(I) IN GENERAL.—The person made all
appropriate inquiries into the previous
ownership and uses of the facility in accordance with generally accepted good
commercial and customary standards
and practices in accordance with subclauses (II) and (III).
(II) STANDARDS AND PRACTICES.—The
standards and practices referred to in
clauses (ii) and (iv) of paragraph (35)(B)
shall be considered to satisfy the requirements of this 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 inspection and title search
that reveal no basis for further investigation shall be considered to satisfy
the requirements of this clause.
(iii) NOTICES.—The person provides all legally required notices with respect to the
discovery or release of any hazardous substances at the facility.
(iv) CARE.—The person exercises appropriate care with respect to hazardous substances found at the facility by taking reasonable steps to—
(I) stop any continuing release;
(II) prevent any threatened future release; and
(III) prevent or limit human, environmental, or natural resource exposure to
any previously released hazardous substance.
(v) COOPERATION, ASSISTANCE, AND ACCESS.—The person provides full cooperation, assistance, and access to persons that
are authorized to conduct response actions
or natural resource restoration at a vessel
or facility (including the cooperation and
access necessary for the installation, integrity, operation, and maintenance of any
complete or partial response actions or
natural resource restoration at the vessel
or facility).
(vi) INSTITUTIONAL CONTROL.—The person—
(I) is in compliance with any land use
restrictions established or relied on in
connection with the response action at a
vessel or facility; and
(II) does not impede the effectiveness
or integrity of any institutional control
employed at the vessel or facility in connection with a response action.
(vii) REQUESTS; SUBPOENAS.—The person
complies with any request for information
or administrative subpoena issued by the
President under this chapter.

Page 7658

(viii) NO AFFILIATION.—The person is
not—
(I) potentially liable, or affiliated with
any other person that is potentially liable, for response costs at a facility
through—
(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 is
conveyed or financed, by a tenancy, by
the instruments by which a leasehold
interest in the facility 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.
(41) ELIGIBLE RESPONSE SITE.—
(A) IN GENERAL.—The term ‘‘eligible response site’’ means a site that meets the definition of a brownfield site in subparagraphs
(A) and (B) of paragraph (39), as modified by
subparagraphs (B) and (C) of this paragraph.
(B) INCLUSIONS.—The term ‘‘eligible response site’’ includes—
(i) notwithstanding paragraph (39)(B)(ix),
a portion of a facility, for which portion
assistance for response activity has been
obtained under subtitle I of the Solid
Waste Disposal Act (42 U.S.C. 6991 et seq.)
from the Leaking Underground Storage
Tank Trust Fund established under section
9508 of title 26; or
(ii) a site for which, notwithstanding the
exclusions provided in subparagraph (C) or
paragraph (39)(B), the President determines, on a site-by-site basis and after
consultation with the State, that limitations on enforcement under section 9628 of
this title at sites specified in clause (iv),
(v), (vi) or (viii) of paragraph (39)(B) would
be appropriate and will—
(I) protect human health and the environment; and
(II) promote economic development or
facilitate the creation of, preservation
of, or addition to a park, a greenway, undeveloped property, recreational property, or other property used for nonprofit purposes.
(C) EXCLUSIONS.—The term ‘‘eligible response site’’ does not include—
(i) a facility for which the President—
(I) conducts or has conducted a preliminary assessment or site inspection;
and
(II) after consultation with the State,
determines or has determined that the
site obtains a preliminary score sufficient for possible listing on the National
Priorities List, or that the site otherwise
qualifies for listing on the National Priorities List; unless the President has
made a determination that no further
Federal action will be taken; or
(ii) facilities that the President determines warrant particular consideration as

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

identified by regulation, such as sites posing a threat to a sole-source drinking
water aquifer or a sensitive ecosystem.
(Pub. L. 96–510, title I, § 101, Dec. 11, 1980, 94 Stat.
2767; Pub. L. 96–561, title II, § 238(b), Dec. 22, 1980,
94 Stat. 3300; Pub. L. 99–499, title I, §§ 101, 114(b),
127(a), title V, § 517(c)(2), Oct. 17, 1986, 100 Stat.
1615, 1652, 1692, 1774; Pub. L. 100–707, title I,
§ 109(v), Nov. 23, 1988, 102 Stat. 4710; Pub. L.
103–429, § 7(e)(1), Oct. 31, 1994, 108 Stat. 4390; Pub.
L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], title II, § 2502(b), Sept. 30, 1996, 110 Stat.
3009, 3009–41, 3009–464; Pub. L. 104–287, § 6(j)(1),
Oct. 11, 1996, 110 Stat. 3399; Pub. L. 106–74, title
IV, § 427, Oct. 20, 1999, 113 Stat. 1095; Pub. L.
107–118, title II, §§ 211(a), 222(a), 223, 231(a), Jan.
11, 2002, 115 Stat. 2360, 2370, 2372, 2375; Pub. L.
115–141, div. N, §§ 2–5(a), Mar. 23, 2018, 132 Stat.
1052, 1053.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in pars. (5), (13), (20)(D), (G),
(35)(C), (D), (39)(B)(iii), (D)(ii)(II)(bb), and (40)(A)(ii)(II),
(B)(vii), was in the original ‘‘this Act’’, meaning Pub.
L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980. For complete classification of
this Act to the Code, see Short Title note below and
Tables.
The Safe Drinking Water Act, referred to in pars. (7),
(10), and (39)(B)(iv), is title XIV of act July 1, 1944, as
added Dec. 16, 1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660,
as amended, which is classified generally to subchapter
XII (§ 300f et seq.) of chapter 6A of this title. Part C of
the Safe Drinking Water Act is classified generally to
part C (§ 300h et seq.) of subchapter XII of chapter 6A of
this title. For complete classification of this Act to the
Code, see Short Title note set out under section 201 of
this title and Tables.
The Magnuson-Stevens Fishery Conservation and
Management Act, referred to in pars. (8) and (16), is
Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, which is classified principally to chapter 38 (§ 1801 et seq.) of Title 16,
Conservation. The fishery conservation zone established by this Act, referred to in par. (16), was established by section 101 of this Act (16 U.S.C. 1811), which
as amended generally by Pub. L. 99–659, title I, § 101(b),
Nov. 14, 1986, 100 Stat. 3706, relates to United States
sovereign rights and fishery management authority
over fish within the exclusive economic zone as defined
in section 1802 of Title 16. For complete classification
of this Act to the Code, see Short Title note set out
under section 1801 of Title 16 and Tables.
The Clean Air Act, referred to in par. (10), is act July
14, 1955, ch. 360, as amended generally by Pub. L. 88–206,
Dec. 17, 1963, 77 Stat. 392, and later by Pub. L. 95–95,
Aug. 7, 1977, 91 Stat. 685. The Clean Air Act was originally classified to chapter 15B (§ 1857 et seq.) of this
title. On enactment of Pub. L. 95–95, the Act was reclassified to chapter 85 (§ 7401 et seq.) of this title. Parts C
and D of title I of the Clean Air Act are classified generally to parts C (§ 7470 et seq.) and D (§ 7501 et seq.), respectively, of subchapter I of chapter 85 of this title.
For complete classification of this Act to the Code, see
Short Title note set out under section 7401 of this title
and Tables.
The Atomic Energy Act of 1954, referred to in pars.
(10) and (22), is act Aug. 1, 1946, ch. 724, as added by act
Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, which is classified
principally to chapter 23 (§ 2011 et seq.) of this title. For
complete classification of this Act to the Code, see
Short Title note set out under section 2011 of this title
and Tables.
The Solid Waste Disposal Act, referred to in pars.
(14), (39)(B)(iv), (vi)(I), (ix), and (41)(B)(i), is title II of

§ 9601

Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat.
2795, which is classified generally to chapter 82 (§ 6901 et
seq.) of this title. Subtitles C and I of the Act are classified generally to subchapters III (§ 6921 et seq.) and IX
(§ 6991 et seq.), respectively, of chapter 82 of this title.
For complete classification of this Act to the Code, see
Short Title note set out under section 6901 of this title
and Tables.
The Alaska Native Claims Settlement Act, referred
to in par. (20)(E), is Pub. L. 92–203, Dec. 18, 1971, 85 Stat.
688, which is classified generally to chapter 33 (§ 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 Farm Credit Act of 1971, referred to in par.
(20)(H)(iv)(III), is Pub. L. 92–181, Dec. 10, 1971, 85 Stat.
583, which is classified generally to chapter 23 (§ 2001 et
seq.) of Title 12, Banks and Banking. For complete classification of this Act to the Code, see Short Title note
set out under section 2001 of Title 12 and Tables.
The Disaster Relief and Emergency Assistance Act,
referred to in par. (23), is Pub. L. 93–288, May 22, 1974,
88 Stat. 143, known as the Robert T. Stafford Disaster
Relief and Emergency Assistance Act, which is classified principally to chapter 68 (§ 5121 et seq.) of this title.
For complete classification of this Act to the Code, see
Short Title note set out under section 5121 of this title
and Tables.
The Federal Water Pollution Control Act, referred to
in pars. (31) and (39)(B)(iv), is act June 30, 1948, ch. 758,
as amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972,
86 Stat. 816, also known as the Clean Water Act, which
is classified generally to chapter 26 (§ 1251 et seq.) of
Title 33, Navigation and Navigable Waters. Section
311(c) of the Act was amended generally by Pub. L.
101–380, title IV, § 4201(a), Aug. 18, 1990, 104 Stat. 523, and
no longer contains provisions directing the publishing
of a National Contingency Plan. However, such provisions are contained in section 1321(d) of Title 33. For
complete classification of this Act to the Code, see
Short Title note set out under section 1251 of Title 33
and Tables.
The Toxic Substances Control Act, referred to in par.
(39)(B)(iv), (viii)(II), is Pub. L. 94–469, Oct. 11, 1976, 90
Stat. 2003, which is classified generally to chapter 53
(§ 2601 et seq.) of Title 15, Commerce and Trade. For
complete classification of this Act to the Code, see
Short Title note set out under section 2601 of Title 15
and Tables.
AMENDMENTS
2018—Par. (20)(D). Pub. L. 115–141, § 2, substituted
‘‘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’’ for ‘‘ownership or control involuntarily
through bankruptcy, tax delinquency, abandonment, or
other circumstances in which the government involuntarily acquires title by virtue’’.
Par. (20)(E), (F). Pub. L. 115–141, § 3(1), (2), added subpar. (E) and redesignated former subpar. (E) as (F).
Former subpar. (F) redesignated (G).
Par. (20)(G). Pub. L. 115–141, § 3(1), (3), redesignated
subpar. (F) as (G) and substituted ‘‘subparagraph (F)’’
for ‘‘subparagraph (E)’’ in introductory provisions.
Former subpar. (G) redesignated (H).
Par. (20)(H). Pub. L. 115–141, § 3(1), (4), redesignated
subpar. (G) as (H) and substituted ‘‘of title 12) or’’ for
‘‘of title 12 or’’ in cl. (i)(II).
Par. (39)(D)(ii)(II)(bb). Pub. L. 115–141, § 4, amended
item (bb) generally. Prior to amendment, item (bb)
read as follows: ‘‘is a site determined by the Administrator or the State, as appropriate, to be—
‘‘(AA) of relatively low risk, as compared with
other petroleum-only sites in the State; and
‘‘(BB) a site for which there is no viable responsible
party and which will be assessed, investigated, or
cleaned up by a person that is not potentially liable
for cleaning up the site; and’’.

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE

Par. (40). Pub. L. 115–141, § 5(a), made numerous
amendments to structure of par. (40), resulting in substitution of subpar. (A) for former introductory provisions, insertion of subpar. (B) designation, heading, and
introductory provisions, redesignation of former subpars. (A) to (H) as cls. (i) to (viii), respectively, of subpar. (B), redesignation of cls. and subcls. within former
subpars. (A) to (H) as subcls. and items, respectively,
within cls. (i) to (viii), and realignment of margins.
Par. (40)(B). Pub. L. 115–141, § 5(a)(1)(B)–(D), just prior
to redesignation of subpar. (B) as cl. (ii) of subpar. (B),
substituted ‘‘subclauses (II) and (III)’’ for ‘‘clauses (ii)
and (iii)’’ in subcl. (I) and ‘‘clause’’ for ‘‘subparagraph’’
in subcls. (II) and (III).
Par. (40)(H)(i)(II). Pub. L. 115–141, § 5(a)(4)(A)(i), just
prior to redesignation of subpar. (H)(i)(II) as cl.
(viii)(I)(bb) of subpar. (B), inserted ‘‘, by a tenancy, by
the instruments by which a leasehold interest in the facility is created,’’ after ‘‘financed’’.
2002—Par. (35)(A). Pub. L. 107–118, § 223(1), in introductory provisions substituted ‘‘deeds, easements, leases,
or’’ for ‘‘deeds or’’ and in concluding provisions substituted ‘‘the defendant has satisfied’’ for ‘‘he has satisfied’’ and inserted before period at end ‘‘, provides full
cooperation, assistance, and facility access to the persons that are authorized to conduct response actions at
the facility (including the cooperation and access necessary for the installation, integrity, operation, and
maintenance of any complete or partial response action
at the facility), is in compliance with any land use restrictions established or relied on in connection with
the response action at a facility, and does not impede
the effectiveness or integrity of any institutional control employed at the facility in connection with a response action’’.
Par. (35)(B). Pub. L. 107–118, § 223(2), added subpar. (B)
and struck out former subpar. (B) which read as follows: ‘‘To establish that the defendant had no reason to
know, as provided in clause (i) of subparagraph (A) of
this paragraph, the defendant must have undertaken,
at the time of acquisition, all appropriate inquiry into
the previous ownership and uses of the property consistent with good commercial or customary practice in
an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any
specialized knowledge or experience on the part of the
defendant, the relationship of the purchase price to the
value of the property if uncontaminated, commonly
known or reasonably ascertainable information about
the property, the obviousness of the presence or likely
presence of contamination at the property, and the
ability to detect such contamination by appropriate inspection.’’
Par. (39). Pub. L. 107–118, § 211(a), added par. (39).
Par. (40). Pub. L. 107–118, § 222(a), added par. (40).
Par. (41). Pub. L. 107–118, § 231(a), added par. (41).
1999—Par. (20)(D). Pub. L. 106–74, which directed the
amendment of subpar. (D) by inserting ‘‘through seizure or otherwise in connection with law enforcement
activity’’ before ‘‘involuntary’’ the first place it appears, could not be executed because the word ‘‘involuntary’’ does not appear in subpar. (D).
1996—Pars. (8), (16). Pub. L. 104–208, § 101(a) [title II,
§ 211(b)], substituted ‘‘Magnuson-Stevens Fishery’’ for
‘‘Magnuson Fishery’’.
Par. (20)(E) to (G). Pub. L. 104–208, § 2502(b), added subpars. (E) to (G).
Par. (26). Pub. L. 104–287 substituted ‘‘section 60101(a)
of title 49’’ for ‘‘the Pipeline Safety Act’’.
1994—Par. (26). Pub. L. 103–429 substituted ‘‘a hazardous liquid pipeline facility’’ for ‘‘pipeline’’.
1988—Par. (23). Pub. L. 100–707 substituted ‘‘Disaster
Relief and Emergency Assistance Act’’ for ‘‘Disaster
Relief Act of 1974’’.
1986—Pub. L. 99–499, § 101(f), struck out ‘‘, the term’’
after ‘‘subchapter’’ in introductory text.
Pars. (1) to (10). Pub. L. 99–499, § 101(f), inserted ‘‘The
term’’ and substituted a period for the semicolon at
end.
Par. (11). Pub. L. 99–499, § 517(c)(2), amended par. (11)
generally. Prior to amendment, par. (11) read as fol-

Page 7660

lows: ‘‘The term ‘Fund’ or ‘Trust Fund’ means the Hazardous Substance Response Fund established by section
9631 of this title or, in the case of a hazardous waste
disposal facility for which liability has been transferred under section 9607(k) of this title, the Post-closure Liability Fund established by section 9641 of this
title.’’
Pub. L. 99–499, § 101(f), inserted ‘‘The term’’ and substituted a period for the semicolon at end.
Pars. (12) to (15). Pub. L. 99–499, § 101(f), inserted ‘‘The
term’’ and substituted a period for the semicolon at
end.
Par. (16). Pub. L. 99–499, § 101(a), (f), inserted ‘‘The
term’’, struck out ‘‘or’’ after ‘‘local government,’’ inserted ‘‘, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of
an Indian tribe’’, and substituted a period for the semicolon at end.
Pars. (17) to (19). Pub. L. 99–499, § 101(f), inserted ‘‘The
term’’ and substituted a period for the semicolon at
end.
Par. (20)(A). Pub. L. 99–499, § 101(f), inserted ‘‘The
term’’.
Pub. L. 99–499, § 101(b)(2), amended cl. (iii) generally.
Prior to amendment, cl. (iii) read as follows: ‘‘in the
case of any abandoned facility, any person who owned,
operated, or otherwise controlled activities at such facility immediately prior to such abandonment.’’
Pub. L. 99–499, § 101(b)(3), in provisions following
subcl. (iii), substituted a period for the semicolon at
end.
Par. (20)(B), (C). Pub. L. 99–499, § 101(b)(3), substituted
‘‘In the case’’ for ‘‘in the case’’ and a period for the
semicolon at end.
Par. (20)(D). Pub. L. 99–499, § 101(b)(1), (f), added subpar. (D). The part of § 101(f) of Pub. L. 99–499 which directed the amendment of par. (20) by changing the
semicolon at end to a period could not be executed in
view of the prior amendment of par. (20) by § 101(b)(1) of
Pub. L. 99–499 which added subpar. (D) ending in a period.
Par. (21). Pub. L. 99–499, § 101(f), inserted ‘‘The term’’
and substituted a period for the semicolon at end.
Par. (22). Pub. L. 99–499, § 101(c), (f), inserted ‘‘The
term’’ and ‘‘(including the abandonment or discarding
of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)’’, substituted a period for the semicolon at
end.
Par. (23). Pub. L. 99–499, § 101(f), inserted ‘‘The terms’’
and substituted a period for the semicolon at end.
Par. (24). Pub. L. 99–499, § 101(d), (f), inserted ‘‘The
terms’’ and substituted ‘‘and associated contaminated
materials’’ for ‘‘or contaminated materials’’ and ‘‘welfare; the term includes offsite transport and offsite
storage, treatment, destruction, or secure disposition
of hazardous substances and associated contaminated
materials.’’ for ‘‘welfare. The term does not include offsite transport of hazardous substances, or the storage,
treatment, destruction, or secure disposition offsite of
such hazardous substances or contaminated materials
unless the President determines that such actions (A)
are more cost-effective than other remedial actions, (B)
will create new capacity to manage, in compliance with
subtitle C of the Solid Waste Disposal Act [42 U.S.C.
6921 et seq.], hazardous substances in addition to those
located at the affected facility, or (C) are necessary to
protect public health or welfare or the environment
from a present or potential risk which may be created
by further exposure to the continued presence of such
substances or materials;’’. The part of § 101(f) of Pub. L.
99–499 which directed amendment of par. (24) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (24) by § 101(d)
of Pub. L. 99–499 which substituted language at end of
par. (24) ending in a period for former language ending
in a semicolon.
Par. (25). Pub. L. 99–499, § 101(e), (f), inserted ‘‘The
terms’’ and ‘‘, all such terms (including the terms ‘removal’ and ‘remedial action’) include enforcement ac-

Page 7661

TITLE 42—THE PUBLIC HEALTH AND WELFARE

tivities related thereto.’’ The part of § 101(f) of Pub. L.
99–499 which directed amendment of par. (25) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (25) by § 101(e)
of Pub. L. 99–499 inserting language and a period at end
of par. (25).
Pars. (26), (27). Pub. L. 99–499, § 101(f), inserted ‘‘The
terms’’ and substituted a period for the semicolon at
end.
Par. (28). Pub. L. 99–499, § 101(f), inserted ‘‘The term’’
and substituted a period for the semicolon at end.
Par. (29). Pub. L. 99–499, § 101(f), inserted ‘‘The terms’’
and substituted a period for the semicolon at end.
Par. (30). Pub. L. 99–499, § 101(f), inserted ‘‘The terms’’.
Par. (31). Pub. L. 99–499, § 101(f), inserted ‘‘The term’’
and substituted a period for ‘‘; and’’.
Par. (32). Pub. L. 99–499, § 101(f), inserted ‘‘The terms’’.
Pars. (33) to (36). Pub. L. 99–499, § 101(f), added pars.
(33) to (36).
Par. (37). Pub. L. 99–499, § 114(b), added par. (37).
Par. (38). Pub. L. 99–499, § 127(a), added par. (38).
1980—Pars. (8), (16). Pub. L. 96–561 substituted ‘‘Magnuson Fishery Conservation and Management Act’’ for
‘‘Fishery Conservation and Management Act of 1976’’.
Statutory Notes and Related Subsidiaries

§ 9601

title, amending this section and sections 9604, 9605, 9607,
and 9622 of this title, and enacting provisions set out as
notes under this section and section 9607 of this title]
may be cited as the ‘Small Business Liability Relief
and Brownfields Revitalization Act’.’’
Pub. L. 107–118, title I, § 101, Jan. 11, 2002, 115 Stat.
2356, provided that: ‘‘This title [amending sections 9607
and 9622 of this title and enacting provisions set out as
a note under section 9607 of this title] may be cited as
the ‘Small Business Liability Protection Act’.’’
Pub. L. 107–118, title II, § 201, Jan. 11, 2002, 115 Stat.
2360, provided that: ‘‘This title [enacting section 9628 of
this title and amending this section and sections 9604,
9605, and 9607 of this title] may be cited as the
‘Brownfields Revitalization and Environmental Restoration Act of 2001’.’’
SHORT TITLE OF 1996 AMENDMENT
Pub. L. 104–208, div. A, title II, § 2501, Sept. 30, 1996, 110
Stat. 3009–462, provided that: ‘‘This subtitle [subtitle E
(§§ 2501–2505) of title II of div. A of Pub. L. 104–208,
amending this section and sections 6991b and 9607 of
this title and enacting provisions set out as a note
under section 6991b of this title] may be cited as the
‘Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996’.’’

EFFECTIVE DATE OF 1996 AMENDMENT

SHORT TITLE OF 1992 AMENDMENT

Pub. L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided
that the amendment made by that section is effective
15 days after Oct. 11, 1996.
Amendment by section 2502(b) of Pub. L. 104–208 applicable with respect to any claim that has not been finally adjudicated as of Sept. 30, 1996, see section 2505 of
Pub. L. 104–208, set out as a note under section 6991b of
this title.

Pub. L. 102–426, § 1, Oct. 19, 1992, 106 Stat. 2174, provided that: ‘‘This Act [amending section 9620 of this
title and enacting provisions set out as a note under
section 9620 of this title] may be cited as the ‘Community Environmental Response Facilitation Act’.’’

EFFECTIVE DATE OF 1986 AMENDMENT
Pub. L. 99–499, § 4, Oct. 17, 1986, 100 Stat. 1614, provided
that: ‘‘Except as otherwise specified in section 121(b) of
this Act [set out as an Effective Date note under section 9621 of this title] or in any other provision of titles
I, II, III, and IV of this Act [see Tables for classification], the amendments made by titles I through IV of
this Act [enacting subchapter IV of this chapter and
sections 9616 to 9626, 9658 to 9660, and 9661 of this title
and sections 2701 to 2707 and 2810 of Title 10, Armed
Forces, amending sections 6926, 6928, 6991 to 6991d,
6991g, 9601 to 9609, 9611 to 9614, 9631, 9651, 9656, and 9657
of this title and section 1416 of Title 33, Navigation and
Navigable Waters, and renumbering former section 2701
of Title 10 as section 2721 of Title 10] shall take effect
on the enactment of this Act [Oct. 17, 1986].’’
Amendment by section 517(c)(2) of Pub. L. 99–499 effective Jan. 1, 1987, see section 517(e) of Pub. L. 99–499,
set out as an Effective Date note under section 9507 of
Title 26, Internal Revenue Code.
EFFECTIVE DATE OF 1980 AMENDMENT
Pub. L. 96–561, title II, § 238(b), Dec. 22, 1980, 94 Stat.
3300, provided that the amendment made by that section is effective 15 days after Dec. 22, 1980.
SHORT TITLE OF 2018 AMENDMENT
Pub. L. 115–141, div. N, § 1, Mar. 23, 2018, 132 Stat. 1052,
provided that: ‘‘This division [amending this section
and sections 9604, 9607, and 9628 of this title] may be
cited as the ‘Brownfields Utilization, Investment, and
Local Development Act of 2018’ or the ‘BUILD Act’.’’
Pub. L. 115–141, div. S, title XI, § 1101, Mar. 23, 2018, 132
Stat. 1147, provided that: ‘‘This title [amending section
9603 of this title and enacting provisions set out as a
note under section 9603 of this title] may be cited as the
‘Fair Agricultural Reporting Method Act’ or the
‘FARM Act’.’’
SHORT TITLE OF 2002 AMENDMENTS
Pub. L. 107–118, § 1, Jan. 11, 2002, 115 Stat. 2356, provided that: ‘‘This Act [enacting section 9628 of this

SHORT TITLE OF 1986 AMENDMENT
Pub. L. 99–499, § 1, Oct. 17, 1986, 100 Stat. 1613, provided
that: ‘‘This Act [enacting subchapter IV of this chapter
and sections 9616 to 9626, 9658 to 9662, 11001 to 11005,
11021 to 11023, and 11041 to 11050 of this title, sections
2701 to 2707 and 2810 of Title 10, Armed Forces, and sections 59A, 4671, 4672, 9507, and 9508 of Title 26, Internal
Revenue Code, amending this section, sections 6926,
6928, 6991 to 6991d, 6991g, 9602 to 9609, 9611 to 9614, 9631,
9651, 9656, and 9657 of this title, sections 26, 164, 275, 936,
1561, 4041, 4042, 4081, 4221, 4611, 4612, 4661, 4662, 6154, 6416,
6420, 6421, 6425, 6427, 6655, 9502, 9503, and 9506 of Title 26,
and section 1416 of Title 33, Navigation and Navigable
Waters, renumbering former section 2701 of Title 10 as
section 2721 of Title 10, repealing sections 9631 to 9633,
9641, and 9653 of this title and sections 4681 and 4682 of
Title 26, and enacting provisions set out as notes under
this section, sections 6921, 6991b, 7401, 9620, 9621, 9658,
9660, 9661, and 11001 of this title, section 2703 of Title 10,
sections 1, 26, 4041, 4611, 4661, 4671, 4681, 9507, and 9508 of
Title 26, and section 655 of Title 29, Labor] may be cited
as the ‘Superfund Amendments and Reauthorization
Act of 1986’.’’
SHORT TITLE
Pub. L. 96–510, § 1, Dec. 11, 1980, 94 Stat. 2767, provided:
‘‘That this Act [enacting this chapter, section 6911a of
this title, and sections 4611, 4612, 4661, 4662, 4681, and
4682 of Title 26, Internal Revenue Code, amending section 6911 of this title, section 1364 of Title 33, Navigation and Navigable Waters, and section 11901 of Title 49,
Transportation, and enacting provisions set out as
notes under section 6911 of this title and sections 1 and
4611 of Title 26] may be cited as the ‘Comprehensive Environmental Response, Compensation, and Liability
Act of 1980’.’’
DEFINITIONS
Pub. L. 99–499, § 2, Oct. 17, 1986, 100 Stat. 1614, provided
that: ‘‘As used in this Act [see Short Title of 1986
Amendment note above]—
‘‘(1) CERCLA.—The term ‘CERCLA’ means the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.).
‘‘(2) ADMINISTRATOR.—The term ‘Administrator’
means the Administrator of the Environmental Protection Agency.’’

§ 9602

TITLE 42—THE PUBLIC HEALTH AND WELFARE
Executive Documents
TRANSFER OF FUNCTIONS

For transfer of certain functions from Nuclear Regulatory Commission to Chairman thereof, see Reorg.
Plan No. 1 of 1980, 45 F.R. 40561, 94 Stat. 3585, set out as
a note under section 5841 of this title.
TERRITORIAL SEA AND CONTIGUOUS ZONE OF UNITED
STATES
For extension of territorial sea and contiguous zone
of United States, see Proc. No. 5928 and Proc. No. 7219,
respectively, set out as notes under section 1331 of Title
43, Public Lands.

§ 9602. Designation of additional hazardous substances and establishment of reportable released quantities; regulations
(a) The Administrator shall promulgate and
revise as may be appropriate, regulations designating as hazardous substances, in addition to
those referred to in section 9601(14) of this title,
such elements, compounds, mixtures, solutions,
and substances which, when released into the
environment may present substantial danger to
the public health or welfare or the environment,
and shall promulgate regulations establishing
that quantity of any hazardous substance the release of which shall be reported pursuant to section 9603 of this title. The Administrator may
determine that one single quantity shall be the
reportable quantity for any hazardous substance, regardless of the medium into which the
hazardous substance is released. For all hazardous substances for which proposed regulations establishing reportable quantities were
published in the Federal Register under this
subsection on or before March 1, 1986, the Administrator shall promulgate under this subsection final regulations establishing reportable
quantities not later than December 31, 1986. For
all hazardous substances for which proposed regulations establishing reportable quantities were
not published in the Federal Register under this
subsection on or before March 1, 1986, the Administrator shall publish under this subsection
proposed regulations establishing reportable
quantities not later than December 31, 1986, and
promulgate final regulations under this subsection establishing reportable quantities not
later than April 30, 1988.’’
(b) Unless and until superseded by regulations
establishing a reportable quantity under subsection (a) of this section for any hazardous substance as defined in section 9601(14) of this title,
(1) a quantity of one pound, or (2) for those hazardous substances for which reportable quantities have been established pursuant to section
1321(b)(4) of title 33, such reportable quantity,
shall be deemed that quantity, the release of
which requires notification pursuant to section
9603(a) or (b) of this title.
(Pub. L. 96–510, title I, § 102, Dec. 11, 1980, 94 Stat.
2772; Pub. L. 99–499, title I, § 102, Oct. 17, 1986, 100
Stat. 1617.)
Editorial Notes
AMENDMENTS
1986—Subsec. (a). Pub. L. 99–499 inserted provisions
setting deadlines for promulgation of proposed and
final regulations.

Page 7662

§ 9603. Notification requirements respecting released substances
(a) Notice to National Response Center upon release from vessel or offshore or onshore facility by person in charge; conveyance of notice
by Center
Any person in charge of a vessel or an offshore
or an onshore facility shall, as soon as he has
knowledge of any release (other than a federally
permitted release) of a hazardous substance
from such vessel or facility in quantities equal
to or greater than those determined pursuant to
section 9602 of this title, immediately notify the
National Response Center established under the
Clean Water Act [33 U.S.C. 1251 et seq.] of such
release. The National Response Center shall convey the notification expeditiously to all appropriate Government agencies, including the Governor of any affected State.
(b) Penalties for failure to notify; use of notice or
information pursuant to notice in criminal
case
Any person—
(1) in charge of a vessel from which a hazardous substance is released, other than a federally permitted release, into or upon the navigable waters of the United States, adjoining
shorelines, or into or upon the waters of the
contiguous zone, or
(2) in charge of a vessel from which a hazardous substance is released, other than a federally permitted release, which may affect
natural resources belonging to, appertaining
to, or under the exclusive management authority of the United States (including resources under the Magnuson-Stevens Fishery
Conservation and Management Act [16 U.S.C.
1801 et seq.]), and who is otherwise subject to
the jurisdiction of the United States at the
time of the release, or
(3) in charge of a facility from which a hazardous substance is released, other than a federally permitted release,
in a quantity equal to or greater than that determined pursuant to section 9602 of this title
who fails to notify immediately the appropriate
agency of the United States Government as soon
as he has knowledge of such release or who submits in such a notification any information
which he knows to be false or misleading shall,
upon conviction, be fined in accordance with the
applicable provisions of title 18 or imprisoned
for not more than 3 years (or not more than 5
years in the case of a second or subsequent conviction), or both. Notification received pursuant
to this subsection or information obtained by
the exploitation of such notification shall not be
used against any such person in any criminal
case, except a prosecution for perjury or for giving a false statement.
(c) Notice to Administrator of EPA of existence
of storage, etc., facility by owner or operator;
exception; time, manner, and form of notice;
penalties for failure to notify; use of notice
or information pursuant to notice in criminal
case
Within one hundred and eighty days after December 11, 1980, any person who owns or operates

Page 7663

TITLE 42—THE PUBLIC HEALTH AND WELFARE

or who at the time of disposal owned or operated, or who accepted hazardous substances for
transport and selected, a facility at which hazardous substances (as defined in section
9601(14)(C) of this title) are or have been stored,
treated, or disposed of shall, unless such facility
has a permit issued under, or has been accorded
interim status under, subtitle C of the Solid
Waste Disposal Act [42 U.S.C. 6921 et seq.], notify the Administrator of the Environmental
Protection Agency of the existence of such facility, specifying the amount and type of any hazardous substance to be found there, and any
known, suspected, or likely releases of such substances from such facility. The Administrator
may prescribe in greater detail the manner and
form of the notice and the information included.
The Administrator shall notify the affected
State agency, or any department designated by
the Governor to receive such notice, of the existence of such facility. Any person who knowingly fails to notify the Administrator of the existence of any such facility shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. In addition, any such person who knowingly fails to
provide the notice required by this subsection
shall not be entitled to any limitation of liability or to any defenses to liability set out in section 9607 of this title: Provided, however, That
notification under this subsection is not required for any facility which would be reportable hereunder solely as a result of any stoppage
in transit which is temporary, incidental to the
transportation movement, or at the ordinary operating convenience of a common or contract
carrier, and such stoppage shall be considered as
a continuity of movement and not as the storage
of a hazardous substance. Notification received
pursuant to this subsection or information obtained by the exploitation of such notification
shall not be used against any such person in any
criminal case, except a prosecution for perjury
or for giving a false statement.
(d) Recordkeeping requirements; promulgation
of rules and regulations by Administrator of
EPA; penalties for violations; waiver of retention requirements
(1) The Administrator of the Environmental
Protection Agency is authorized to promulgate
rules and regulations specifying, with respect
to—
(A) the location, title, or condition of a facility, and
(B) the identity, characteristics, quantity,
origin,
or
condition
(including
containerization and previous treatment) of
any hazardous substances contained or deposited in a facility;
the records which shall be retained by any person required to provide the notification of a facility set out in subsection (c) of this section.
Such specification shall be in accordance with
the provisions of this subsection.
(2) Beginning with December 11, 1980, for fifty
years thereafter or for fifty years after the date
of establishment of a record (whichever is later),
or at any such earlier time as a waiver if obtained under paragraph (3) of this subsection, it
shall be unlawful for any such person knowingly

§ 9603

to destroy, mutilate, erase, dispose of, conceal,
or otherwise render unavailable or unreadable or
falsify any records identified in paragraph (1) of
this subsection. Any person who violates this
paragraph shall, upon conviction, be fined in accordance with the applicable provisions of title
18 or imprisoned for not more than 3 years (or
not more than 5 years in the case of a second or
subsequent conviction), or both.
(3) At any time prior to the date which occurs
fifty years after December 11, 1980, any person
identified under paragraph (1) of this subsection
may apply to the Administrator of the Environmental Protection Agency for a waiver of the
provisions of the first sentence of paragraph (2)
of this subsection. The Administrator is authorized to grant such waiver if, in his discretion,
such waiver would not unreasonably interfere
with the attainment of the purposes and provisions of this chapter. The Administrator shall
promulgate rules and regulations regarding such
a waiver so as to inform parties of the proper application procedure and conditions for approval
of such a waiver.
(4) Notwithstanding the provisions of this subsection, the Administrator of the Environmental Protection Agency may in his discretion
require any such person to retain any record
identified pursuant to paragraph (1) of this subsection for such a time period in excess of the
period specified in paragraph (2) of this subsection as the Administrator determines to be
necessary to protect the public health or welfare.
(e) Applicability to registered pesticide 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
et seq.) or the handling and storage of such
a pesticide product by an agricultural producer; or
(B) air emissions from animal waste (including decomposing animal waste) 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’’ includes animal waste 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—

§ 9603

TITLE 42—THE PUBLIC HEALTH AND WELFARE
(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) or (b) of this section for any release
of a hazardous substance—
(1) which is required to be reported (or specifically exempted from a requirement for reporting) under subtitle C of the Solid Waste
Disposal Act [42 U.S.C. 6921 et seq.] or regulations thereunder and which has been reported
to the National Response Center, or
(2) which is a continuous release, stable in
quantity and rate, and is—
(A) from a facility for which notification
has been given under subsection (c) of this
section, or
(B) a release of which notification has been
given under subsections (a) and (b) of this
section for a period sufficient to establish
the continuity, quantity, and regularity of
such release:

Page 7664

classification of this Act to the Code, see Short Title
note set out under section 6901 of this title and Tables.
This chapter, referred to in subsec. (d)(3), was in the
original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, which is classified principally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 9601 of this title
and Tables.
The Federal Insecticide, Fungicide, and Rodenticide
Act, referred to in subsec. (e)(1)(A), 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 (§ 136 et seq.) of chapter 6 of Title 7, Agriculture. For complete classification of this Act to the
Code, see Short Title note set out under section 136 of
Title 7 and Tables.
AMENDMENTS

(Pub. L. 96–510, title I, § 103, Dec. 11, 1980, 94 Stat.
2772; Pub. L. 96–561, title II, § 238(b), Dec. 22, 1980,
94 Stat. 3300; Pub. L. 99–499, title I, §§ 103,
109(a)(1), (2), Oct. 17, 1986, 100 Stat. 1617, 1632,
1633; Pub. L. 104–208, div. A, title I, § 101(a) [title
II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41;
Pub. L. 115–141, div. S, title XI, § 1102, Mar. 23,
2018, 132 Stat. 1147.)

2018—Subsec. (e). Pub. L. 115–141 added subsec. (e) and
struck out former subsec. (e). Prior to amendment, text
read as follows: ‘‘This section shall not apply to the application of a pesticide product registered under the
Federal Insecticide, Fungicide, and Rodenticide Act or
to the handling and storage of such a pesticide product
by an agricultural producer.’’
1996—Subsec. (b)(2). Pub. L. 104–208 substituted ‘‘Magnuson-Stevens Fishery’’ for ‘‘Magnuson Fishery’’.
1986—Subsec. (b). Pub. L. 99–499, §§ 103, 109(a), adjusted
left hand margin of text following ‘‘federally permitted
release,’’ third place appearing so that there is no indentation of that text, inserted ‘‘or who submits in
such a notification any information which he knows to
be false or misleading’’, and substituted ‘‘in accordance
with the applicable provisions of title 18 or imprisoned
for not more than 3 years (or not more than 5 years in
the case of a second or subsequent conviction), or both’’
for ‘‘not more than $10,000 or imprisoned for not more
than one year, or both’’ and ‘‘subsection’’ for ‘‘paragraph’’.
Subsec. (d)(2). Pub. L. 99–499, § 109(a)(2), substituted
‘‘in accordance with the applicable provisions of title 18
or imprisoned for not more than 3 years (or not more
than 5 years in the case of a second or subsequent conviction), or both’’ for ‘‘not more than $20,000, or imprisoned for not more than one year, or both’’ as the probable intent of Congress, notwithstanding directory language that the substitution be made for ‘‘not more
than $20,000, or imprisoned for not more than one year
or both’’.
1980—Subsec. (b)(2). Pub. L. 96–561 substituted ‘‘Magnuson Fishery Conservation and Management Act’’ for
‘‘Fishery Conservation and Management Act of 1976’’.

Editorial Notes

Statutory Notes and Related Subsidiaries

Provided, That notification in accordance with
subsections (a) and (b) of this paragraph shall
be given for releases subject to this paragraph
annually, or at such time as there is any statistically significant increase in the quantity
of any hazardous substance or constituent
thereof released, above that previously reported or occurring.

REFERENCES IN TEXT

EFFECTIVE DATE OF 1996 AMENDMENT

The Clean Water Act, referred to in subsec. (a), is act
June 30, 1948, ch. 758, as amended generally by Pub. L.
92–500, § 2, Oct. 18, 1972, 86 Stat. 816, also known as the
Federal Water Pollution Control Act, which is classified generally to chapter 26 (§ 1251 et seq.) of Title 33,
Navigation and Navigable Waters. For complete classification of this Act to the Code, see Short Title note
set out under section 1251 of Title 33 and Tables.
The Magnuson-Stevens Fishery Conservation and
Management Act, referred to in subsec. (b)(2), is Pub. L.
94–265, Apr. 13, 1976, 90 Stat. 331, which is classified
principally to chapter 38 (§ 1801 et seq.) of Title 16, Conservation. For complete classification of this Act to
the Code, see Short Title note set out under section
1801 of Title 16 and Tables.
The Solid Waste Disposal Act, referred to in subsecs.
(c) and (f)(1), is title II of Pub. L. 89–272, Oct. 20, 1965,
79 Stat. 997, as amended generally by Pub. L. 94–580, § 2,
Oct. 21, 1976, 90 Stat. 2795. Subtitle C of the Solid Waste
Disposal Act is classified generally to subchapter III
(§ 6921 et seq.) of chapter 82 of this title. For complete

Pub. L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided
that the amendment made by that section is effective
15 days after Oct. 11, 1996.
EFFECTIVE DATE OF 1980 AMENDMENT
Pub. L. 96–561, title II, § 238(b), Dec. 22, 1980, 94 Stat.
3300, provided that the amendment made by that section is effective 15 days after Dec. 22, 1980.
APPLICATION
Pub. L. 115–141, div. S, title XI, § 1103, Mar. 23, 2018, 132
Stat. 1148, provided that: ‘‘Nothing in this title [see
Short Title of 2018 Amendment note set out under section 9601 of this title] or an amendment made by this
title affects, or supersedes or modifies the responsibility or authority of any Federal official or employee
to comply with or enforce, any requirement under the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.),
other than the hazardous substance notification re-

Page 7665

TITLE 42—THE PUBLIC HEALTH AND WELFARE

quirements under section 103 of that Act (42 U.S.C. 9603)
with respect to air emissions from animal waste at
farms.’’
Executive Documents
CONTIGUOUS ZONE OF UNITED STATES
For extension of contiguous zone of United States,
see Proc. No. 7219, set out as a note under section 1331
of Title 43, Public Lands.

§ 9604. Response authorities
(a) Removal and other remedial action by President; applicability of national contingency
plan; response by potentially responsible
parties; public health threats; limitations on
response; exception
(1) Whenever (A) any hazardous substance is
released or there is a substantial threat of such
a release into the environment, or (B) there is a
release or substantial threat of release into the
environment of any pollutant or contaminant
which may present an imminent and substantial
danger to the public health or welfare, the
President is authorized to act, consistent with
the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time
(including its removal from any contaminated
natural resource), or take any other response
measure consistent with the national contingency plan which the President deems necessary
to protect the public health or welfare or the environment. When the President determines that
such action will be done properly and promptly
by the owner or operator of the facility or vessel
or by any other responsible party, the President
may allow such person to carry out the action,
conduct the remedial investigation, or conduct
the feasibility study in accordance with section
9622 of this title. No remedial investigation or
feasibility study (RI/FS) shall be authorized except on a determination by the President that
the party is qualified to conduct the RI/FS and
only if the President contracts with or arranges
for a qualified person to assist the President in
overseeing and reviewing the conduct of such RI/
FS and if the responsible party agrees to reimburse the Fund for any cost incurred by the
President under, or in connection with, the
oversight contract or arrangement. In no event
shall a potentially responsible party be subject
to a lesser standard of liability, receive preferential treatment, or in any other way, whether direct or indirect, benefit from any such arrangements as a response action contractor, or
as a person hired or retained by such a response
action contractor, with respect to the release or
facility in question. The President shall give
primary attention to those releases which the
President deems may present a public health
threat.
(2) REMOVAL ACTION.—Any removal action undertaken by the President under this subsection
(or by any other person referred to in section
9622 of this title) should, to the extent the President deems practicable, contribute to the efficient performance of any long term remedial action with respect to the release or threatened
release concerned.

§ 9604

(3) LIMITATIONS ON RESPONSE.—The President
shall not provide for a removal or remedial action under this section in response to a release
or threat of release—
(A) of a naturally occurring substance in its
unaltered form, or altered solely through naturally occurring processes or phenomena, from
a location where it is naturally found;
(B) from products which are part of the
structure of, and result in exposure within,
residential buildings or business or community structures; or
(C) into public or private drinking water
supplies due to deterioration of the system
through ordinary use.
(4) EXCEPTION TO LIMITATIONS.—Notwithstanding paragraph (3) of this subsection, to the
extent authorized by this section, the President
may respond to any release or threat of release
if in the President’s discretion, it constitutes a
public health or environmental emergency and
no other person with the authority and capability to respond to the emergency will do so in
a timely manner.
(b) Investigations, monitoring, coordination, etc.,
by President
(1) Information; studies and investigations
Whenever the President is authorized to act
pursuant to subsection (a) of this section, or
whenever the President has reason to believe
that a release has occurred or is about to
occur, or that illness, disease, or complaints
thereof may be attributable to exposure to a
hazardous substance, pollutant, or contaminant and that a release may have occurred or
be occurring, he may undertake such investigations, monitoring, surveys, testing, and
other information gathering as he may deem
necessary or appropriate to identify the existence and extent of the release or threat thereof, the source and nature of the hazardous substances, pollutants or contaminants involved,
and the extent of danger to the public health
or welfare or to the environment. In addition,
the President may undertake such planning,
legal, fiscal, economic, engineering, architectural, and other studies or investigations as he
may deem necessary or appropriate to plan
and direct response actions, to recover the
costs thereof, and to enforce the provisions of
this chapter.
(2) Coordination of investigations
The President shall promptly notify the appropriate Federal and State natural resource
trustees of potential damages to natural resources resulting from releases under investigation pursuant to this section and shall
seek to coordinate the assessments, investigations, and planning under this section with
such Federal and State trustees.

§ 9604

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(c) Criteria for continuance of obligations from
Fund over specified amount for response actions; consultation by President with affected States; contracts or cooperative agreements by States with President prior to remedial actions; cost-sharing agreements; selection by President of remedial actions;
State credits: granting of credit, expenses before listing or agreement, response actions
between 1978 and 1980, State expenses after
December 11, 1980, in excess of 10 percent of
costs, item-by-item approval, use of credits;
operation and maintenance; limitation on
source of funds for O&M; recontracting;
siting
(1) Unless (A) the President finds that (i) continued response actions are immediately required to prevent, limit, or mitigate an emergency, (ii) there is an immediate risk to public
health or welfare or the environment, and (iii)
such assistance will not otherwise be provided
on a timely basis, or (B) the President has determined the appropriate remedial actions pursuant to paragraph (2) of this subsection and the
State or States in which the source of the release is located have complied with the requirements of paragraph (3) of this subsection, or (C)
continued response action is otherwise appropriate and consistent with the remedial action
to be taken 1 obligations from the Fund, other
than those authorized by subsection (b) of this
section, shall not continue after $2,000,000 has
been obligated for response actions or 12 months
has elapsed from the date of initial response to
a release or threatened release of hazardous substances.
(2) The President shall consult with the affected State or States before determining any
appropriate remedial action to be taken pursuant to the authority granted under subsection
(a) of this section.
(3) The President shall not provide any remedial actions pursuant to this section unless the
State in which the release occurs first enters
into a contract or cooperative agreement with
the President providing assurances deemed adequate by the President that (A) the State will
assure all future maintenance of the removal
and remedial actions provided for the expected
life of such actions as determined by the President; (B) the State will assure the availability of
a hazardous waste disposal facility acceptable to
the President and in compliance with the requirements of subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.] for any necessary offsite storage, destruction, treatment,
or secure disposition of the hazardous substances; and (C) the State will pay or assure
payment of (i) 10 per centum of the costs of the
remedial action, including all future maintenance, or (ii) 50 percent (or such greater amount
as the President may determine appropriate,
taking into account the degree of responsibility
of the State or political subdivision for the release) of any sums expended in response to a release at a facility, that was operated by the
State or a political subdivision thereof, either
directly or through a contractual relationship
or otherwise, at the time of any disposal of haz1 So in original. Probably should be followed by a comma.

Page 7666

ardous substances therein. For the purpose of
clause (ii) of this subparagraph, the term ‘‘facility’’ does not include navigable waters or the
beds underlying those waters. In the case of remedial action to be taken on land or water held
by an Indian tribe, held by the United States in
trust for Indians, held by a member of an Indian
tribe (if such land or water is subject to a trust
restriction on alienation), or otherwise within
the borders of an Indian reservation, the requirements of this paragraph for assurances regarding future maintenance and cost-sharing
shall not apply, and the President shall provide
the assurance required by this paragraph regarding the availability of a hazardous waste disposal facility.
(4) SELECTION OF REMEDIAL ACTION.—The
President shall select remedial actions to carry
out this section in accordance with section 9621
of this title (relating to cleanup standards).
(5) STATE CREDITS.—
(A) GRANTING OF CREDIT.—The President
shall grant a State a credit against the share
of the costs, for which it is responsible under
paragraph (3) with respect to a facility listed
on the National Priorities List under the National Contingency Plan, for amounts expended by a State for remedial action at such
facility pursuant to a contract or cooperative
agreement with the President. The credit
under this paragraph shall be limited to those
State expenses which the President determines to be reasonable, documented, direct
out-of-pocket expenditures of non-Federal
funds.
(B) EXPENSES BEFORE LISTING OR AGREEMENT.—The credit under this paragraph shall
include expenses for remedial action at a facility incurred before the listing of the facility
on the National Priorities List or before a contract or cooperative agreement is entered into
under subsection (d) for the facility if—
(i) after such expenses are incurred the facility is listed on such list and a contract or
cooperative agreement is entered into for
the facility, and
(ii) the President determines that such expenses would have been credited to the State
under subparagraph (A) had the expenditures
been made after listing of the facility on
such list and after the date on which such
contract or cooperative agreement is entered into.
(C) RESPONSE ACTIONS BETWEEN 1978 AND
1980.—The credit under this paragraph shall include funds expended or obligated by the State
or a political subdivision thereof after January 1, 1978, and before December 11, 1980, for
cost-eligible response actions and claims for
damages compensable under section 9611 of
this title.
(D) STATE EXPENSES AFTER DECEMBER 11, 1980,
IN EXCESS OF 10 PERCENT OF COSTS.—The credit
under this paragraph shall include 90 percent
of State expenses incurred at a facility owned,
but not operated, by such State or by a political subdivision thereof. Such credit applies
only to expenses incurred pursuant to a contract or cooperative agreement under subsection (d) and only to expenses incurred after
December 11, 1980, but before October 17, 1986.

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

(E) ITEM-BY-ITEM APPROVAL.—In the case of
expenditures made after October 17, 1986, the
President may require prior approval of each
item of expenditure as a condition of granting
a credit under this paragraph.
(F) USE OF CREDITS.—Credits granted under
this paragraph for funds expended with respect
to a facility may be used by the State to reduce all or part of the share of costs otherwise
required to be paid by the State under paragraph (3) in connection with remedial actions
at such facility. If the amount of funds for
which credit is allowed under this paragraph
exceeds such share of costs for such facility,
the State may use the amount of such excess
to reduce all or part of the share of such costs
at other facilities in that State. A credit shall
not entitle the State to any direct payment.
(6) OPERATION AND MAINTENANCE.—For the purposes of paragraph (3) of this subsection, in the
case of ground or surface water contamination,
completed remedial action includes the completion of treatment or other measures, whether
taken onsite or offsite, necessary to restore
ground and surface water quality to a level that
assures protection of human health and the environment. With respect to such measures, the
operation of such measures for a period of up to
10 years after the construction or installation
and commencement of operation shall be considered remedial action. Activities required to
maintain the effectiveness of such measures following such period or the completion of remedial action, whichever is earlier, shall be considered operation or maintenance.
(7) LIMITATION ON SOURCE OF FUNDS FOR
O&M.—During any period after the availability
of funds received by the Hazardous Substance
Superfund established under subchapter A of
chapter 98 of title 26 from tax revenues or appropriations from general revenues, the Federal
share of the payment of the cost of operation or
maintenance pursuant to paragraph (3)(C)(i) or
paragraph (6) of this subsection (relating to operation and maintenance) shall be from funds received by the Hazardous Substance Superfund
from amounts recovered on behalf of such fund
under this chapter.
(8) RECONTRACTING.—The President is authorized to undertake or continue whatever interim
remedial actions the President determines to be
appropriate to reduce risks to public health or
the environment where the performance of a
complete remedial action requires recontracting
because of the discovery of sources, types, or
quantities of hazardous substances not known at
the time of entry into the original contract. The
total cost of interim actions undertaken at a facility pursuant to this paragraph shall not exceed $2,000,000.
(9) SITING.—Effective 3 years after October 17,
1986, the President shall not provide any remedial actions pursuant to this section unless the
State in which the release occurs first enters
into a contract or cooperative agreement with
the President providing assurances deemed adequate by the President that the State will assure the availability of hazardous waste treatment or disposal facilities which—
(A) have adequate capacity for the destruction, treatment, or secure disposition of all

§ 9604

hazardous wastes that are reasonably expected
to be generated within the State during the 20year period following the date of such contract
or cooperative agreement and to be disposed
of, treated, or destroyed,
(B) are within the State or outside the State
in accordance with an interstate agreement or
regional agreement or authority,
(C) are acceptable to the President, and
(D) are in compliance with the requirements
of subtitle C of the Solid Waste Disposal Act
[42 U.S.C. 6921 et seq.].
(d) Contracts or cooperative agreements by
President with States or political subdivisions or Indian tribes; State applications,
terms and conditions; reimbursements; costsharing provisions; enforcement requirements and procedures
(1) COOPERATIVE AGREEMENTS.—
(A) STATE APPLICATIONS.—A State or political subdivision thereof or Indian tribe may
apply to the President to carry out actions authorized in this section. If the President determines that the State or political subdivision
or Indian tribe has the capability to carry out
any or all of such actions in accordance with
the criteria and priorities established pursuant to section 9605(a)(8) of this title and to
carry out related enforcement actions, the
President may enter into a contract or cooperative agreement with the State or political
subdivision or Indian tribe to carry out such
actions. The President shall make a determination regarding such an application within
90 days after the President receives the application.
(B) TERMS AND CONDITIONS.—A contract or
cooperative agreement under this paragraph
shall be subject to such terms and conditions
as the President may prescribe. The contract
or cooperative agreement may cover a specific
facility or specific facilities.
(C) REIMBURSEMENTS.—Any State which expended funds during the period beginning September 30, 1985, and ending on October 17, 1986,
for response actions at any site included on
the National Priorities List and subject to a
cooperative agreement under this chapter
shall be reimbursed for the share of costs of
such actions for which the Federal Government is responsible under this chapter.
(2) If the President enters into a cost-sharing
agreement pursuant to subsection (c) of this section or a contract or cooperative agreement pursuant to this subsection, and the State or political subdivision thereof fails to comply with any
requirements of the contract, the President
may, after providing sixty days notice, seek in
the appropriate Federal district court to enforce
the contract or to recover any funds advanced or
any costs incurred because of the breach of the
contract by the State or political subdivision.
(3) Where a State or a political subdivision
thereof is acting in behalf of the President, the
President is authorized to provide technical and
legal assistance in the administration and enforcement of any contract or subcontract in
connection with response actions assisted under
this subchapter, and to intervene in any civil action involving the enforcement of such contract
or subcontract.

§ 9604

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(4) Where two or more noncontiguous facilities
are reasonably related on the basis of geography, or on the basis of the threat, or potential
threat to the public health or welfare or the environment, the President may, in his discretion,
treat these related facilities as one for purposes
of this section.
(e) Information gathering and access
(1) Action authorized
Any officer, employee, or representative of
the President, duly designated by the President, is authorized to take action under paragraph (2), (3), or (4) (or any combination thereof) at a vessel, facility, establishment, place,
property, or location or, in the case of paragraph (3) or (4), at any vessel, facility, establishment, place, property, or location which is
adjacent to the vessel, facility, establishment,
place, property, or location referred to in such
paragraph (3) or (4). Any duly designated officer, employee, or representative of a State or
political subdivision under a contract or cooperative agreement under subsection (d)(1) is
also authorized to take such action. The authority of paragraphs (3) and (4) may be exercised only if there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance or pollutant or
contaminant. The authority of this subsection
may be exercised only for the purposes of determining the need for response, or choosing
or taking any response action under this subchapter, or otherwise enforcing the provisions
of this subchapter.
(2) Access to information
Any officer, employee, or representative described in paragraph (1) may require any person who has or may have information relevant
to any of the following to furnish, upon reasonable notice, information or documents relating to such matter:
(A) The identification, nature, and quantity of materials which have been or are generated, treated, stored, or disposed of at a
vessel or facility or transported to a vessel
or facility.
(B) The nature or extent of a release or
threatened release of a hazardous substance
or pollutant or contaminant at or from a
vessel or facility.
(C) Information relating to the ability of a
person to pay for or to perform a cleanup.
In addition, upon reasonable notice, such person either (i) shall grant any such officer, employee, or representative access at all reasonable times to any vessel, facility, establishment, place, property, or location to inspect
and copy all documents or records relating to
such matters or (ii) shall copy and furnish to
the officer, employee, or representative all
such documents or records, at the option and
expense of such person.
(3) Entry
Any officer, employee, or representative described in paragraph (1) is authorized to enter
at reasonable times any of the following:
(A) Any vessel, facility, establishment, or
other place or property where any hazardous

Page 7668

substance or pollutant or contaminant may
be or has been generated, stored, treated,
disposed of, or transported from.
(B) Any vessel, facility, establishment, or
other place or property from which or to
which a hazardous substance or pollutant or
contaminant has been or may have been released.
(C) Any vessel, facility, establishment, or
other place or property where such release is
or may be threatened.
(D) Any vessel, facility, establishment, or
other place or property where entry is needed to determine the need for response or the
appropriate response or to effectuate a response action under this subchapter.
(4) Inspection and samples
(A) Authority
Any officer, employee or representative
described in paragraph (1) is authorized to
inspect and obtain samples from any vessel,
facility, establishment, or other place or
property referred to in paragraph (3) or from
any location of any suspected hazardous substance or pollutant or contaminant. Any
such officer, employee, or representative is
authorized to inspect and obtain samples of
any containers or labeling for suspected hazardous substances or pollutants or contaminants. Each such inspection shall be completed with reasonable promptness.
(B) Samples
If the officer, employee, or representative
obtains any samples, before leaving the
premises he shall give to the owner, operator, tenant, or other person in charge of the
place from which the samples were obtained
a receipt describing the sample obtained
and, if requested, a portion of each such
sample. A copy of the results of any analysis
made of such samples shall be furnished
promptly to the owner, operator, tenant, or
other person in charge, if such person can be
located.
(5) Compliance orders
(A) Issuance
If consent is not granted regarding any request made by an officer, employee, or representative under paragraph (2), (3), or (4),
the President may issue an order directing
compliance with the request. The order may
be issued after such notice and opportunity
for consultation as is reasonably appropriate
under the circumstances.
(B) Compliance
The President may ask the Attorney General to commence a civil action to compel
compliance with a request or order referred
to in subparagraph (A). Where there is a reasonable basis to believe there may be a release or threat of a release of a hazardous
substance or pollutant or contaminant, the
court shall take the following actions:
(i) In the case of interference with entry
or inspection, the court shall enjoin such
interference or direct compliance with orders to prohibit interference with entry or
inspection unless under the circumstances

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

of the case the demand for entry or inspection is arbitrary and capricious, an abuse
of discretion, or otherwise not in accordance with law.
(ii) In the case of information or document requests or orders, the court shall
enjoin interference with such information
or document requests or orders or direct
compliance with the requests or orders to
provide such information or documents
unless under the circumstances of the case
the demand for information or documents
is arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance
with law.
The court may assess a civil penalty not to
exceed $25,000 for each day of noncompliance
against any person who unreasonably fails
to comply with the provisions of paragraph
(2), (3), or (4) or an order issued pursuant to
subparagraph (A) of this paragraph.
(6) Other authority
Nothing in this subsection shall preclude the
President from securing access or obtaining
information in any other lawful manner.
(7) Confidentiality of information
(A) Any records, reports, or information obtained from any person under this section (including records, reports, or information obtained by representatives of the President)
shall be available to the public, except that
upon a showing satisfactory to the President
(or the State, as the case may be) by any person that records, reports, or information, or
particular part thereof (other than health or
safety effects data), to which the President (or
the State, as the case may be) or any officer,
employee, or representative has access under
this section if made public would divulge information entitled to protection under section
1905 of title 18, such information or particular
portion thereof shall be considered confidential in accordance with the purposes of that
section, except that such record, report, document or information may be disclosed to other
officers, employees, or authorized representatives of the United States concerned with carrying out this chapter, or when relevant in
any proceeding under this chapter.
(B) Any person not subject to the provisions
of section 1905 of title 18 who knowingly and
willfully divulges or discloses any information
entitled to protection under this subsection
shall, upon conviction, be subject to a fine of
not more than $5,000 or to imprisonment not
to exceed one year, or both.
(C) In submitting data under this chapter, a
person required to provide such data may (i)
designate the data which such person believes
is entitled to protection under this subsection
and (ii) submit such designated data separately from other data submitted under this
chapter. A designation under this paragraph
shall be made in writing and in such manner
as the President may prescribe by regulation.
(D) Notwithstanding any limitation contained in this section or any other provision of
law, all information reported to or otherwise
obtained by the President (or any representa-

§ 9604

tive of the President) under this chapter shall
be made available, upon written request of any
duly authorized committee of the Congress, to
such committee.
(E) No person required to provide information under this chapter may claim that the information is entitled to protection under this
paragraph unless such person shows each of
the following:
(i) Such person has not disclosed the information to any other person, other than a
member of a local emergency planning committee established under title III of the
Amendments and Reauthorization Act of
1986 [42 U.S.C. 11001 et seq.], an officer or employee of the United States or a State or
local government, an employee of such person, or a person who is bound by a confidentiality agreement, and such person has
taken reasonable measures to protect the
confidentiality of such information and intends to continue to take such measures.
(ii) The information is not required to be
disclosed, or otherwise made available, to
the public under any other Federal or State
law.
(iii) Disclosure of the information is likely
to cause substantial harm to the competitive position of such person.
(iv) The specific chemical identity, if
sought to be protected, is not readily discoverable through reverse engineering.
(F) The following information with respect
to any hazardous substance at the facility or
vessel shall not be entitled to protection under
this paragraph:
(i) The trade name, common name, or generic class or category of the hazardous substance.
(ii) The physical properties of the substance, including its boiling point, melting
point, flash point, specific gravity, vapor
density, solubility in water, and vapor pressure at 20 degrees celsius.
(iii) The hazards to health and the environment posed by the substance, including
physical hazards (such as explosion) and potential acute and chronic health hazards.
(iv) The potential routes of human exposure to the substance at the facility, establishment, place, or property being investigated, entered, or inspected under this subsection.
(v) The location of disposal of any waste
stream.
(vi) Any monitoring data or analysis of
monitoring data pertaining to disposal activities.
(vii) Any hydrogeologic or geologic data.
(viii) Any groundwater monitoring data.
(f) Contracts for response actions; compliance
with Federal health and safety standards
In awarding contracts to any person engaged
in response actions, the President or the State,
in any case where it is awarding contracts pursuant to a contract entered into under subsection (d) of this section, shall require compliance with Federal health and safety standards
established under section 9651(f) of this title by
contractors and subcontractors as a condition of
such contracts.

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

(g) Rates for wages and labor standards applicable to covered work
(1) All laborers and mechanics employed by
contractors or subcontractors in the performance of construction, repair, or alteration work
funded in whole or in part under this section or
section 9628(a)(1)(B)(ii)(III) of this title shall be
paid wages at rates not less than those prevailing on projects of a character similar in the
locality as determined by the Secretary of
Labor in accordance with sections 3141–3144,
3146, and 3147 of title 40. The President shall not
approve any such funding without first obtaining adequate assurance that required labor
standards will be maintained upon the construction work.
(2) The Secretary of Labor shall have, with respect to the labor standards specified in paragraph (1), the authority and functions set forth
in Reorganization Plan Numbered 14 of 1950 (15
F.R. 3176; 64 Stat. 1267) and section 3145 of title
40.
(h) Emergency procurement powers; exercise by
President
Notwithstanding any other provision of law,
subject to the provisions of section 9611 of this
title, the President may authorize the use of
such emergency procurement powers as he
deems necessary to effect the purpose of this
chapter. Upon determination that such procedures are necessary, the President shall promulgate regulations prescribing the circumstances
under which such authority shall be used and
the procedures governing the use of such authority.
(i) Agency for Toxic Substances and Disease Registry; establishment, functions, etc.
(1) There is hereby established within the Public Health Service an agency, to be known as the
Agency for Toxic Substances and Disease Registry, which shall report directly to the Surgeon
General of the United States. The Administrator
of said Agency shall, with the cooperation of the
Administrator of the Environmental Protection
Agency, the Commissioner of the Food and Drug
Administration, the Directors of the National
Institute of Medicine, National Institute of Environmental Health Sciences, National Institute
of Occupational Safety and Health, Centers for
Disease Control and Prevention, the Administrator of the Occupational Safety and Health
Administration, the Administrator of the Social
Security Administration, the Secretary of
Transportation, and appropriate State and local
health officials, effectuate and implement the
health related authorities of this chapter. In addition, said Administrator shall—
(A) in cooperation with the States, establish
and maintain a national registry of serious
diseases and illnesses and a national registry
of persons exposed to toxic substances;
(B) establish and maintain inventory of literature, research, and studies on the health effects of toxic substances;
(C) in cooperation with the States, and other
agencies of the Federal Government, establish
and maintain a complete listing of areas
closed to the public or otherwise restricted in
use because of toxic substance contamination;

Page 7670

(D) in cases of public health emergencies
caused or believed to be caused by exposure to
toxic substances, provide medical care and
testing to exposed individuals, including but
not limited to tissue sampling, chromosomal
testing where appropriate, epidemiological
studies, or any other assistance appropriate
under the circumstances; and
(E) either independently or as part of other
health status survey, conduct periodic survey
and screening programs to determine relationships between exposure to toxic substances
and illness. In cases of public health emergencies, exposed persons shall be eligible for
admission to hospitals and other facilities and
services operated or provided by the Public
Health Service.
(2)(A) Within 6 months after October 17, 1986,
the Administrator of the Agency for Toxic Substances and Disease Registry (ATSDR) and the
Administrator of the Environmental Protection
Agency (‘‘EPA’’) shall prepare a list, in order of
priority, of at least 100 hazardous substances
which are most commonly found at facilities on
the National Priorities List and which, in their
sole discretion, they determine are posing the
most significant potential threat to human
health due to their known or suspected toxicity
to humans and the potential for human exposure
to such substances at facilities on the National
Priorities List or at facilities to which a response to a release or a threatened release under
this section is under consideration.
(B) Within 24 months after October 17, 1986,
the Administrator of ATSDR and the Administrator of EPA shall revise the list prepared
under subparagraph (A). Such revision shall include, in order of priority, the addition of 100 or
more such hazardous substances. In each of the
3 consecutive 12-month periods that follow, the
Administrator of ATSDR and the Administrator
of EPA shall revise, in the same manner as provided in the 2 preceding sentences, such list to
include not fewer than 25 additional hazardous
substances per revision. The Administrator of
ATSDR and the Administrator of EPA shall not
less often than once every year thereafter revise
such list to include additional hazardous substances in accordance with the criteria in subparagraph (A).
(3) Based on all available information, including information maintained under paragraph
(1)(B) and data developed and collected on the
health effects of hazardous substances under
this paragraph, the Administrator of ATSDR
shall prepare toxicological profiles of each of
the substances listed pursuant to paragraph (2).
The toxicological profiles shall be prepared in
accordance with guidelines developed by the Administrator of ATSDR and the Administrator of
EPA. Such profiles shall include, but not be limited to each of the following:
(A) An examination, summary, and interpretation of available toxicological information
and epidemiologic evaluations on a hazardous
substance in order to ascertain the levels of
significant human exposure for the substance
and the associated acute, subacute, and chronic health effects.
(B) A determination of whether adequate information on the health effects of each sub-

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

stance is available or in the process of development to determine levels of exposure which
present a significant risk to human health of
acute, subacute, and chronic health effects.
(C) Where appropriate, an identification of
toxicological testing needed to identify the
types or levels of exposure that may present
significant risk of adverse health effects in humans.
Any toxicological profile or revision thereof
shall reflect the Administrator of ATSDR’s assessment of all relevant toxicological testing
which has been peer reviewed. The profiles required to be prepared under this paragraph for
those hazardous substances listed under subparagraph (A) of paragraph (2) shall be completed, at a rate of no fewer than 25 per year,
within 4 years after October 17, 1986. A profile
required on a substance listed pursuant to subparagraph (B) of paragraph (2) shall be completed within 3 years after addition to the list.
The profiles prepared under this paragraph shall
be of those substances highest on the list of priorities under paragraph (2) for which profiles
have not previously been prepared. Profiles required under this paragraph shall be revised and
republished as necessary, but no less often than
once every 3 years. Such profiles shall be provided to the States and made available to other
interested parties.
(4) The Administrator of the ATSDR shall provide consultations upon request on health issues
relating to exposure to hazardous or toxic substances, on the basis of available information, to
the Administrator of EPA, State officials, and
local officials. Such consultations to individuals
may be provided by States under cooperative
agreements established under this chapter.
(5)(A) For each hazardous substance listed pursuant to paragraph (2), the Administrator of
ATSDR (in consultation with the Administrator
of EPA and other agencies and programs of the
Public Health Service) shall assess whether adequate information on the health effects of such
substance is available. For any such substance
for which adequate information is not available
(or under development), the Administrator of
ATSDR, in cooperation with the Director of the
National Toxicology Program, shall assure the
initiation of a program of research designed to
determine the health effects (and techniques for
development of methods to determine such
health effects) of such substance. Where feasible,
such program shall seek to develop methods to
determine the health effects of such substance
in combination with other substances with
which it is commonly found. Before assuring the
initiation of such program, the Administrator of
ATSDR shall consider recommendations of the
Interagency Testing Committee established
under section 4(e) of the Toxic Substances Control Act [15 U.S.C. 2603(e)] on the types of research that should be done. Such program shall
include, to the extent necessary to supplement
existing information, but shall not be limited
to—
(i) laboratory and other studies to determine
short, intermediate, and long-term health effects;
(ii) laboratory and other studies to determine organ-specific, site-specific, and systemspecific acute and chronic toxicity;

§ 9604

(iii) laboratory and other studies to determine the manner in which such substances are
metabolized or to otherwise develop an understanding of the biokinetics of such substances;
and
(iv) where there is a possibility of obtaining
human data, the collection of such information.
(B) In assessing the need to perform laboratory and other studies, as required by subparagraph (A), the Administrator of ATSDR shall
consider—
(i) the availability and quality of existing
test data concerning the substance on the suspected health effect in question;
(ii) the extent to which testing already in
progress will, in a timely fashion, provide data
that will be adequate to support the preparation of toxicological profiles as required by
paragraph (3); and
(iii) such other scientific and technical factors as the Administrator of ATSDR may determine are necessary for the effective implementation of this subsection.
(C) In the development and implementation of
any research program under this paragraph, the
Administrator of ATSDR and the Administrator
of EPA shall coordinate such research program
implemented under this paragraph with the National Toxicology Program and with programs
of toxicological testing established under the
Toxic Substances Control Act [15 U.S.C. 2601 et
seq.] and the Federal Insecticide, Fungicide and
Rodenticide Act [7 U.S.C. 136 et seq.]. The purpose of such coordination shall be to avoid duplication of effort and to assure that the hazardous substances listed pursuant to this subsection are tested thoroughly at the earliest
practicable date. Where appropriate, consistent
with such purpose, a research program under
this paragraph may be carried out using such
programs of toxicological testing.
(D) It is the sense of the Congress that the
costs of research programs under this paragraph
be borne by the manufacturers and processors of
the hazardous substance in question, as required
in programs of toxicological testing under the
Toxic Substances Control Act [15 U.S.C. 2601 et
seq.]. Within 1 year after October 17, 1986, the
Administrator of EPA shall promulgate regulations which provide, where appropriate, for payment of such costs by manufacturers and processors under the Toxic Substances Control Act,
and registrants under the Federal Insecticide,
Fungicide, and Rodenticide Act [7 U.S.C. 136 et
seq.], and recovery of such costs from responsible parties under this chapter.
(6)(A) The Administrator of ATSDR shall perform a health assessment for each facility on
the National Priorities List established under
section 9605 of this title. Such health assessment
shall be completed not later than December 10,
1988, for each facility proposed for inclusion on
such list prior to October 17, 1986, or not later
than one year after the date of proposal for inclusion on such list for each facility proposed
for inclusion on such list after October 17, 1986.
(B) The Administrator of ATSDR may perform
health assessments for releases or facilities
where individual persons or licensed physicians

§ 9604

TITLE 42—THE PUBLIC HEALTH AND WELFARE

provide information that individuals have been
exposed to a hazardous substance, for which the
probable source of such exposure is a release. In
addition to other methods (formal or informal)
of providing such information, such individual
persons or licensed physicians may submit a petition to the Administrator of ATSDR providing
such information and requesting a health assessment. If such a petition is submitted and the Administrator of ATSDR does not initiate a health
assessment, the Administrator of ATSDR shall
provide a written explanation of why a health
assessment is not appropriate.
(C) In determining the priority in which to
conduct health assessments under this subsection, the Administrator of ATSDR, in consultation with the Administrator of EPA, shall
give priority to those facilities at which there is
documented evidence of the release of hazardous
substances, at which the potential risk to
human health appears highest, and for which in
the judgment of the Administrator of ATSDR
existing health assessment data are inadequate
to assess the potential risk to human health as
provided in subparagraph (F). In determining
the priorities for conducting health assessments
under this subsection, the Administrator of
ATSDR shall consider the National Priorities
List schedules and the needs of the Environmental Protection Agency and other Federal
agencies pursuant to schedules for remedial investigation and feasibility studies.
(D) Where a health assessment is done at a
site on the National Priorities List, the Administrator of ATSDR shall complete such assessment promptly and, to the maximum extent
practicable, before the completion of the remedial investigation and feasibility study at the
facility concerned.
(E) Any State or political subdivision carrying
out a health assessment for a facility shall report the results of the assessment to the Administrator of ATSDR and the Administrator of
EPA and shall include recommendations with
respect to further activities which need to be
carried out under this section. The Administrator of ATSDR shall state such recommendation in any report on the results of any assessment carried out directly by the Administrator
of ATSDR for such facility and shall issue periodic reports which include the results of all the
assessments carried out under this subsection.
(F) For the purposes of this subsection and
section 9611(c)(4) of this title, the term ‘‘health
assessments’’ shall include preliminary assessments of the potential risk to human health
posed by individual sites and facilities, based on
such factors as the nature and extent of contamination, the existence of potential pathways
of human exposure (including ground or surface
water contamination, air emissions, and food
chain contamination), the size and potential
susceptibility of the community within the likely pathways of exposure, the comparison of expected human exposure levels to the short-term
and long-term health effects associated with
identified hazardous substances and any available recommended exposure or tolerance limits
for such hazardous substances, and the comparison of existing morbidity and mortality data on
diseases that may be associated with the ob-

Page 7672

served levels of exposure. The Administrator of
ATSDR shall use appropriate data, risk assessments, risk evaluations and studies available
from the Administrator of EPA.
(G) The purpose of health assessments under
this subsection shall be to assist in determining
whether actions under paragraph (11) of this subsection should be taken to reduce human exposure to hazardous substances from a facility and
whether additional information on human exposure and associated health risks is needed and
should be acquired by conducting epidemiological studies under paragraph (7), establishing a
registry under paragraph (8), establishing a
health surveillance program under paragraph
(9), or through other means. In using the results
of health assessments for determining additional actions to be taken under this section,
the Administrator of ATSDR may consider additional information on the risks to the potentially affected population from all sources of
such hazardous substances including known
point or nonpoint sources other than those from
the facility in question.
(H) At the completion of each health assessment, the Administrator of ATSDR shall provide the Administrator of EPA and each affected
State with the results of such assessment, together with any recommendations for further
actions under this subsection or otherwise under
this chapter. In addition, if the health assessment indicates that the release or threatened
release concerned may pose a serious threat to
human health or the environment, the Administrator of ATSDR shall so notify the Administrator of EPA who shall promptly evaluate such
release or threatened release in accordance with
the hazard ranking system referred to in section
9605(a)(8)(A) of this title to determine whether
the site shall be placed on the National Priorities List or, if the site is already on the list, the
Administrator of ATSDR may recommend to
the Administrator of EPA that the site be accorded a higher priority.
(7)(A) Whenever in the judgment of the Administrator of ATSDR it is appropriate on the basis
of the results of a health assessment, the Administrator of ATSDR shall conduct a pilot
study of health effects for selected groups of exposed individuals in order to determine the desirability of conducting full scale epidemiological or other health studies of the entire exposed
population.
(B) Whenever in the judgment of the Administrator of ATSDR it is appropriate on the basis of
the results of such pilot study or other study or
health assessment, the Administrator of ATSDR
shall conduct such full scale epidemiological or
other health studies as may be necessary to determine the health effects on the population exposed to hazardous substances from a release or
threatened release. If a significant excess of disease in a population is identified, the letter of
transmittal of such study shall include an assessment of other risk factors, other than a release, that may, in the judgment of the peer review group, be associated with such disease, if
such risk factors were not taken into account in
the design or conduct of the study.
(8) In any case in which the results of a health
assessment indicate a potential significant risk

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

to human health, the Administrator of ATSDR
shall consider whether the establishment of a
registry of exposed persons would contribute to
accomplishing the purposes of this subsection,
taking into account circumstances bearing on
the usefulness of such a registry, including the
seriousness or unique character of identified diseases or the likelihood of population migration
from the affected area.
(9) Where the Administrator of ATSDR has determined that there is a significant increased
risk of adverse health effects in humans from
exposure to hazardous substances based on the
results of a health assessment conducted under
paragraph (6), an epidemiologic study conducted
under paragraph (7), or an exposure registry that
has been established under paragraph (8), and
the Administrator of ATSDR has determined
that such exposure is the result of a release
from a facility, the Administrator of ATSDR
shall initiate a health surveillance program for
such population. This program shall include but
not be limited to—
(A) periodic medical testing where appropriate of population subgroups to screen for
diseases for which the population or subgroup
is at significant increased risk; and
(B) a mechanism to refer for treatment
those individuals within such population who
are screened positive for such diseases.
(10) Two years after October 17, 1986, and every
2 years thereafter, the Administrator of ATSDR
shall prepare and submit to the Administrator
of EPA and to the Congress a report on the results of the activities of ATSDR regarding—
(A) health assessments and pilot health effects studies conducted;
(B) epidemiologic studies conducted;
(C) hazardous substances which have been
listed under paragraph (2), toxicological profiles which have been developed, and
toxicologic testing which has been conducted
or which is being conducted under this subsection;
(D) registries established under paragraph
(8); and
(E) an overall assessment, based on the results of activities conducted by the Administrator of ATSDR, of the linkage between
human exposure to individual or combinations
of hazardous substances due to releases from
facilities covered by this chapter or the Solid
Waste Disposal Act [42 U.S.C. 6901 et seq.] and
any increased incidence or prevalence of adverse health effects in humans.
(11) If a health assessment or other study carried out under this subsection contains a finding
that the exposure concerned presents a significant risk to human health, the President shall
take such steps as may be necessary to reduce
such exposure and eliminate or substantially
mitigate the significant risk to human health.
Such steps may include the use of any authority
under this chapter, including, but not limited
to—
(A) provision of alternative water supplies,
and
(B) permanent or temporary relocation of individuals.
In any case in which information is insufficient,
in the judgment of the Administrator of ATSDR

§ 9604

or the President to determine a significant
human exposure level with respect to a hazardous substance, the President may take such
steps as may be necessary to reduce the exposure of any person to such hazardous substance
to such level as the President deems necessary
to protect human health.
(12) In any case which is the subject of a petition, a health assessment or study, or a research
program under this subsection, nothing in this
subsection shall be construed to delay or otherwise affect or impair the authority of the President, the Administrator of ATSDR, or the Administrator of EPA to exercise any authority
vested in the President, the Administrator of
ATSDR or the Administrator of EPA under any
other provision of law (including, but not limited to, the imminent hazard authority of section 7003 of the Solid Waste Disposal Act [42
U.S.C. 6973]) or the response and abatement authorities of this chapter.
(13) All studies and results of research conducted under this subsection (other than health
assessments) shall be reported or adopted only
after appropriate peer review. Such peer review
shall be completed, to the maximum extent
practicable, within a period of 60 days. In the
case of research conducted under the National
Toxicology Program, such peer review may be
conducted by the Board of Scientific Counselors.
In the case of other research, such peer review
shall be conducted by panels consisting of no
less than three nor more than seven members,
who shall be disinterested scientific experts selected for such purpose by the Administrator of
ATSDR or the Administrator of EPA, as appropriate, on the basis of their reputation for scientific objectivity and the lack of institutional
ties with any person involved in the conduct of
the study or research under review. Support
services for such panels shall be provided by the
Agency for Toxic Substances and Disease Registry, or by the Environmental Protection Agency, as appropriate.
(14) In the implementation of this subsection
and other health-related authorities of this
chapter, the Administrator of ATSDR shall assemble, develop as necessary, and distribute to
the States, and upon request to medical colleges, physicians, and other health professionals, appropriate educational materials (including short courses) on the medical surveillance, screening, and methods of diagnosis and
treatment of injury or disease related to exposure to hazardous substances (giving priority to
those listed in paragraph (2)), through such
means as the Administrator of ATSDR deems
appropriate.
(15) The activities of the Administrator of
ATSDR described in this subsection and section
9611(c)(4) of this title shall be carried out by the
Administrator of ATSDR, either directly or
through cooperative agreements with States (or
political subdivisions thereof) which the Administrator of ATSDR determines are capable of
carrying out such activities. Such activities
shall include provision of consultations on
health information, the conduct of health assessments, including those required under section 3019(b) of the Solid Waste Disposal Act [42
U.S.C. 6939a(b)], health studies, registries, and
health surveillance.

§ 9604

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(16) The President shall provide adequate personnel for ATSDR, which shall not be fewer than
100 employees. For purposes of determining the
number of employees under this subsection, an
employee employed by ATSDR on a part-time
career employment basis shall be counted as a
fraction which is determined by dividing 40
hours into the average number of hours of such
employee’s regularly scheduled workweek.
(17) In accordance with section 9620 of this
title (relating to Federal facilities), the Administrator of ATSDR shall have the same authorities under this section with respect to facilities
owned or operated by a department, agency, or
instrumentality of the United States as the Administrator of ATSDR has with respect to any
nongovernmental entity.
(18) If the Administrator of ATSDR determines that it is appropriate for purposes of this
section to treat a pollutant or contaminant as a
hazardous substance, such pollutant or contaminant shall be treated as a hazardous substance
for such purpose.
(j) Acquisition of property
(1) Authority
The President is authorized to acquire, by
purchase, lease, condemnation, donation, or
otherwise, any real property or any interest in
real property that the President in his discretion determines is needed to conduct a remedial action under this chapter. There shall be
no cause of action to compel the President to
acquire any interest in real property under
this chapter.
(2) State assurance
The President may use the authority of
paragraph (1) for a remedial action only if, before an interest in real estate is acquired
under this subsection, the State in which the
interest to be acquired is located assures the
President, through a contract or cooperative
agreement or otherwise, that the State will
accept transfer of the interest following completion of the remedial action.
(3) Exemption
No Federal, State, or local government
agency shall be liable under this chapter solely as a result of acquiring an interest in real
estate under this subsection.
(k) Brownfields revitalization funding
(1) Definition of eligible entity
In this subsection, the term ‘‘eligible entity’’ means—
(A) a general purpose unit of local government;
(B) a land clearance authority or other
quasi-governmental entity that operates
under the supervision and control of or as an
agent of a general purpose unit of local government;
(C) a government entity created by a State
legislature;
(D) a regional council or group of general
purpose units of local government;
(E) a redevelopment agency that is chartered or otherwise sanctioned by a State;
(F) a State;
(G) an Indian Tribe other than in Alaska;

Page 7674

(H) an Alaska Native Regional Corporation
and an Alaska Native Village Corporation as
those terms are defined in the Alaska Native
Claims Settlement Act (43 U.S.C. 1601 and
following) and the Metlakatla Indian community;
(I) an organization described in section
501(c)(3) of title 26 and exempt from taxation
under section 501(a) of that title;
(J) a limited liability corporation in which
all managing members are organizations described in subparagraph (I) or limited liability corporations whose sole members are organizations described in subparagraph (I);
(K) a limited partnership in which all general partners are organizations described in
subparagraph (I) or limited liability corporations whose sole members are organizations
described in subparagraph (I); or
(L) a qualified community development
entity (as defined in section 45D(c)(1) of title
26).
(2) Brownfield site characterization and assessment grant program
(A) Establishment of program
The Administrator shall establish a program to—
(i) provide grants to inventory, characterize, assess, and conduct planning related to brownfield sites under subparagraph (B); and
(ii) perform targeted site assessments at
brownfield sites.
(B) Assistance for site characterization and
assessment
(i) In general
On approval of an application made by
an eligible entity, the Administrator may
make a grant to the eligible entity to be
used for programs to inventory, characterize, assess, and conduct planning related to one or more brownfield sites.
(ii) Site characterization and assessment
A site characterization and assessment
carried out with the use of a grant under
clause (i) shall be performed in accordance
with section 9601(35)(B) of this title.
(C) Exemption for certain publicly owned
brownfield sites
Notwithstanding paragraph (5)(B)(iii), an
eligible entity described in any of subparagraphs (A) through (H) of paragraph (1) may
receive a grant under this paragraph for
property acquired by that eligible entity
prior to January 11, 2002, even if the eligible
entity does not qualify as a bona fide prospective purchaser, so long as the eligible
entity has not caused or contributed to a release or threatened release of a hazardous
substance at the property.
(3) Grants and loans for brownfield remediation
(A) Grants provided by the President
Subject to paragraphs (5) and (6), the
President shall establish a program to provide grants to—
(i) eligible entities, to be used for capitalization of revolving loan funds; and

Page 7675

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(ii) eligible entities or nonprofit organizations, where warranted, as determined
by the President based on considerations
under subparagraph (C), to be used directly
for remediation of one or more brownfield
sites owned by the entity or organization
that receives the grant and in amounts not
to exceed $500,000 for each site to be remediated, which limit may be waived by the
Administrator, 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 that receives a grant
under subparagraph (A)(i) shall use the grant
funds to provide assistance for the remediation of brownfield sites in the form of—
(i) one or more loans to an eligible entity, a site owner, a site developer, or another person; or
(ii) one or more grants to an eligible entity or other nonprofit organization, where
warranted, as determined by the eligible
entity that is providing the assistance,
based on considerations under subparagraph (C), to remediate sites owned by the
eligible entity or nonprofit organization
that receives the grant.
(C) Considerations
In determining whether a grant under subparagraph (A)(ii) or (B)(ii) is warranted, the
President or the eligible entity, as the case
may be, shall take into consideration—
(i) the extent to which a grant will facilitate the creation of, preservation of, or
addition to a park, a greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes;
(ii) the extent to which a grant will meet
the needs of a community that has an inability to draw on other sources of funding
for environmental remediation and subsequent redevelopment of the area in which
a brownfield site is located because of the
small population or low income of the
community;
(iii) the extent to which a grant will facilitate the use or reuse of existing infrastructure;
(iv) the benefit of promoting the longterm availability of funds from a revolving
loan fund for brownfield remediation; and
(v) such other similar factors as the Administrator considers appropriate to consider for the purposes of this subsection.
(D) Transition
Revolving loan funds that have been established before January 11, 2002, may be used
in accordance with this paragraph.
(E) Exemption for certain publicly owned
brownfield sites
Notwithstanding paragraph (5)(B)(iii), an
eligible entity described in any of subparagraphs (A) through (H) of paragraph (1) may
receive a grant or loan under this paragraph
for property acquired by that eligible entity

§ 9604

prior to January 11, 2002, even if the eligible
entity does not qualify as a bona fide prospective purchaser, so long as the eligible
entity has not caused or contributed to a release or threatened release of a hazardous
substance at the property.
(4) Multipurpose brownfields grants
(A) In general
Subject to subparagraph (D) and paragraphs (5) and (6), the Administrator shall
establish a program to provide multipurpose
grants to an eligible entity based on the criteria under subparagraph (C) and the considerations under paragraph (3)(C), to carry out
inventory, characterization, assessment,
planning, or remediation activities at 1 or
more brownfield sites in an area proposed by
the eligible entity.
(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 made
available for the fiscal year to carry out
this subsection.
(C) Criteria
In awarding a grant under this paragraph,
the Administrator shall consider the extent
to which the eligible entity is able—
(i) to provide an overall plan for revitalization of the 1 or more brownfield sites 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 in the proposed area.
(D) Condition
As a condition of receiving a grant under
this paragraph, each eligible entity 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, unless the Administrator provides an extension.
(E) Ownership
An eligible entity that receives a grant
under this paragraph may not expend any of
the grant funds for the remediation of a
brownfield site unless the eligible entity
owns the brownfield site.
(5) General provisions
(A) Maximum grant amount
(i) Brownfield site characterization and assessment
(I) In general
A grant under paragraph (2) may be
awarded to an eligible entity on a community-wide or site-by-site basis, and
shall not exceed, for any individual

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

brownfield site covered by the grant,
$200,000.
(II) Waiver
The Administrator may waive the
$200,000 limitation under subclause (I) to
permit the brownfield site to receive a
grant of not to exceed $350,000, based on
the anticipated level of contamination,
size, or status of ownership of the site.
(ii) Brownfield remediation
A grant under paragraph (3)(A)(i) may be
awarded to an eligible entity on a community-wide or site-by-site basis, not to exceed $1,000,000 per eligible entity. The Administrator may make an additional grant
to an eligible entity described in the previous sentence for any year after the year
for which the initial grant is made, taking
into consideration—
(I) the number of sites and number of
communities that are addressed by the
revolving loan fund;
(II) the demand for funding by eligible
entities that have not previously received a grant under this subsection;
(III) the demonstrated ability of the eligible entity to use the revolving loan
fund to enhance remediation and provide
funds on a continuing basis; and
(IV) such other similar factors as the
Administrator considers appropriate to
carry out this subsection.
(B) Prohibition
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 cost at a brownfield site
for which the recipient of the grant or loan
is potentially liable under section 9607 of
this title; or
(iv) a cost of compliance with any Federal law (including a Federal law specified
in section 9601(39)(B) of this title), excluding the cost of compliance with laws applicable to the cleanup.
(C) Assistance for development of local government site remediation programs
A local government that receives a grant
under this subsection may use not to exceed
10 percent of the grant funds to develop and
implement a brownfields program that may
include—
(i) monitoring the health of populations
exposed to one or more hazardous substances from a brownfield site; and
(ii) monitoring and enforcement of any
institutional control used to prevent
human exposure to any hazardous substance from a brownfield site.
(D) Insurance
A recipient of a grant or loan awarded
under paragraph (2), (3), or (4) that performs
a characterization, assessment, or remediation of a brownfield site may use a portion
of the grant or loan to purchase insurance
for the characterization, assessment, or remediation of that site.

Page 7676

(E) Administrative costs
(i) In general
An eligible entity may use up to 5 percent of the amounts made available under
a grant or loan under this subsection for
administrative costs.
(ii) Restriction
For purposes of clause (i), the term ‘‘administrative costs’’ does not include—
(I) investigation and identification of
the extent of contamination of a
brownfield site;
(II) design and performance of a response action; or
(III) monitoring of a natural resource.
(6) Grant applications
(A) Submission
(i) In general
(I) Application
An eligible entity may submit to the
Administrator, through a regional office
of the Environmental Protection Agency
and in such form as the Administrator
may require, an application for a grant
under this subsection for one or more
brownfield sites (including information
on the criteria used by the Administrator to rank applications under subparagraph (C), to the extent that the information is available).
(II) NCP requirements
The Administrator may include in any
requirement for submission of an application under subclause (I) a requirement
of the National Contingency Plan only
to the extent that the requirement is relevant and appropriate to the program
under this subsection.
(ii) Coordination
The Administrator shall coordinate with
other Federal agencies to assist in making
eligible entities aware of other available
Federal resources.
(iii) Guidance
The Administrator shall publish guidance to assist eligible entities in applying
for grants under this subsection.
(B) Approval
The Administrator shall—
(i) at least annually, complete a review
of applications for grants that are received
from eligible entities under this subsection; and
(ii) award grants under this subsection
to eligible entities that the Administrator
determines have the highest rankings
under the ranking criteria established
under subparagraph (C).
(C) Ranking criteria
The Administrator shall establish a system for ranking grant applications received
under this paragraph that includes the following criteria:
(i) The extent to which a grant will stimulate the availability of other funds for en-

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

vironmental assessment or remediation,
and subsequent reuse, of an area in which
one or more brownfield sites are located.
(ii) The potential of the proposed project
or the development plan for an area in
which one or more brownfield sites are located to stimulate economic development
of the area on completion of the cleanup.
(iii) The extent to which a grant would
address or facilitate the identification and
reduction of threats to human health and
the environment, including threats in
areas in which there is a greater-than-normal incidence of diseases or conditions (including cancer, asthma, or birth defects)
that may be associated with exposure to
hazardous substances, pollutants, or contaminants.
(iv) The extent to which a grant would
facilitate the use or reuse of existing infrastructure.
(v) The extent to which a grant would facilitate the creation of, preservation of, or
addition to a park, a greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes.
(vi) The extent to which a grant would
meet the needs of a community that has
an inability to draw on other sources of
funding for environmental remediation
and subsequent redevelopment of the area
in which a brownfield site is located because of the small population or low income of the community.
(vii) The extent to which the applicant is
eligible for funding from other sources.
(viii) The extent to which a grant will
further the fair distribution of funding between urban and nonurban areas.
(ix) The extent to which the grant provides for involvement of the local community in the process of making decisions relating to cleanup and future use of a
brownfield site.
(x) The extent to which a grant would
address or facilitate the identification and
reduction of threats to the health or welfare of children, pregnant women, minority or low-income communities, or other
sensitive populations.
(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 of
a facility that generates renewable electricity from wind, solar, or geothermal
energy; or
(II) any energy efficiency improvement
project at a brownfield site, including a
project for a combined heat and power
system or a district energy system.
(D) Report on ranking criteria
Not later than September 30, 2022, the Administrator shall submit to Congress a report regarding the Administrator’s use of
the ranking criteria described in subparagraph (C) in awarding grants under this subsection.

§ 9604

(7) Implementation of brownfields programs
(A) Establishment of program
The Administrator may provide, or fund
eligible entities or nonprofit organizations
to provide, training, research, and technical
assistance to individuals and organizations,
as appropriate, to facilitate the inventory of
brownfield sites, site assessments, remediation of brownfield sites, community involvement, or site preparation.
(B) Funding restrictions
The total Federal funds to be expended by
the Administrator under this paragraph
shall not exceed 15 percent of the total
amount appropriated to carry out this subsection in any fiscal year.
(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, including chapter 75 of title
31.
(C) Violations
If the Administrator determines that a
person that receives a grant or loan under
this subsection has violated or is in violation of a condition of the grant, loan, or applicable Federal law, the Administrator
may—
(i) terminate the grant or loan;
(ii) require the person to repay any funds
received; and
(iii) seek any other legal remedies available to the Administrator.
(D) Report to Congress
Not later than 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 (including a description of the allocation of funds under
this subsection).
(9) Leveraging
An eligible entity that receives a grant
under this subsection may use the grant funds
for a portion of a project at a brownfield site
for which funding is received from other
sources if the grant funds are used only for the
purposes described in paragraph (2), (3), or (4).
(10) Agreements
Each grant or loan made under this subsection shall—
(A) include a requirement of the National
Contingency Plan only to the extent that
the requirement is relevant and appropriate
to the program under this subsection, as determined by the Administrator; and

§ 9604

TITLE 42—THE PUBLIC HEALTH AND WELFARE
(B) be subject to an agreement that—
(i) requires the recipient to—
(I) comply with all applicable Federal
and State laws; and
(II) ensure that the cleanup protects
human health and the environment;

(ii) requires that the recipient use the
grant or loan exclusively for purposes
specified in paragraph (2), (3), or (4), 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.
(11) 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.
(12) 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.).
(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.
(Pub. L. 96–510, title I, § 104, Dec. 11, 1980, 94 Stat.
2774; Pub. L. 99–499, title I, §§ 104, 110, title II,
§ 207(b), Oct. 17, 1986, 100 Stat. 1617, 1636, 1705;
Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095;
Pub. L. 102–531, title III, § 312(h), Oct. 27, 1992, 106
Stat. 3506; Pub. L. 107–118, title II, § 211(b), Jan.
11, 2002, 115 Stat. 2362; Pub. L. 108–271, § 8(b), July
7, 2004, 118 Stat. 814; Pub. L. 109–59, title I, § 1956,
Aug. 10, 2005, 119 Stat. 1515; Pub. L. 115–141, div.
N, §§ 6–13, 14(b), Mar. 23, 2018, 132 Stat. 1054–1058.)

Page 7678

The Solid Waste Disposal Act, referred to in subsecs.
(c)(3), (9)(D), (i)(10)(E), and (k)(12)(B), is title II of Pub.
L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2795,
which is classified generally to chapter 82 (§ 6901 et seq.)
of this title. Subtitle C of the Act is classified generally to subchapter III (§ 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 (§ 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)(12)(D), is Pub. L. 94–469, Oct.
11, 1976, 90 Stat. 2003, which is classified generally to
chapter 53 (§ 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 (§ 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, which is classified generally to chapter 33
(§ 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)(12)(C), is act June 30, 1948, ch. 758, as
amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86
Stat. 816, which is classified generally to chapter 26
(§ 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)(12)(E), is title XIV of act July 1, 1944, as added Dec.
16, 1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660, which is classified generally to subchapter XII (§ 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.
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, § 5(c), Aug. 21, 2002, 116
Stat. 1303, the first section of which enacted Title 40,
Public Buildings, Property, and Works.

Editorial Notes

AMENDMENTS

REFERENCES IN TEXT

2018—Subsec. (g)(1). Pub. L. 115–141, § 14(b), inserted
‘‘or section 9628(a)(1)(B)(ii)(III) of this title’’ after
‘‘under this section’’.
Subsec. (k). Pub. L. 115–141, § 9(4), substituted ‘‘paragraph (2), (3), or (4)’’ for ‘‘paragraph (2) or (3)’’ wherever
appearing.
Subsec. (k)(1)(I) to (L). Pub. L. 115–141, § 6, added subpars. (I) to (L).
Subsec. (k)(2)(C). Pub. L. 115–141, § 7(1), added subpar.
(C).

This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2767, known as the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
which is classified principally to this chapter. For complete classification of this Act to the Code, see Short
Title note set out under section 9601 of this title and
Tables.

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

Subsec. (k)(3)(A). Pub. L. 115–141, § 9(2), substituted
‘‘Subject to paragraphs (5) and (6)’’ for ‘‘Subject to
paragraphs (4) and (5)’’ in introductory provisions.
Subsec. (k)(3)(A)(ii). Pub. L. 115–141, § 8, substituted
‘‘$500,000 for each site to be remediated, which limit
may be waived by the Administrator, 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’’ for ‘‘$200,000 for each site to be remediated’’.
Subsec. (k)(3)(E). Pub. L. 115–141, § 7(2), added subpar.
(E).
Subsec. (k)(4). Pub. L. 115–141, § 9(3), added par. (4).
Former par. (4) redesignated (5).
Subsec. (k)(5). Pub. L. 115–141, § 9(1), redesignated par.
(4) as (5). Former par. (5) redesignated (6).
Subsec. (k)(5)(B). Pub. L. 115–141, § 10(1), amended subpar. (B) generally. Prior to amendment, subpar. (B) related to prohibited uses of grants or loans under subsec.
(k).
Subsec. (k)(5)(E). Pub. L. 115–141, § 10(2), added subpar.
(E).
Subsec. (k)(6). Pub. L. 115–141, § 9(1), redesignated par.
(5) as (6). Former par. (6) redesignated (7).
Subsec. (k)(6)(C)(xi), (xii). Pub. L. 115–141, § 11(a),
added cls. (xi) and (xii).
Subsec. (k)(6)(D). Pub. L. 115–141, § 11(b), added subpar. (D).
Subsec. (k)(7). Pub. L. 115–141, § 9(1), redesignated par.
(6) as (7). Former par. (7) redesignated (8).
Subsec. (k)(8). Pub. L. 115–141, § 9(1), redesignated par.
(7) as (8). Former par. (8) redesignated (9).
Subsec. (k)(8)(D). Pub. L. 115–141, § 12, substituted
‘‘September 30, 2022’’ for ‘‘3 years after January 11,
2002’’.
Subsec. (k)(9) to (12). Pub. L. 115–141, § 9(1), redesignated pars. (8) to (11) as (9) to (12), respectively. Former
par. (12) redesignated (13).
Subsec. (k)(13). Pub. L. 115–141, § 13, amended par. (13)
generally. Prior to amendment, par. (13) authorized appropriations for fiscal years 2002 through 2006 and specified conditions on use of certain funds.
Pub. L. 115–141, § 9(1), redesignated par. (12) as (13).
2005—Subsec. (k)(4)(B)(iii). Pub. L. 109–59 added cl.
(iii).
2004—Subsec. (k)(7)(B). Pub. L. 108–271 substituted
‘‘Government Accountability Office’’ for ‘‘General Accounting Office’’.
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, § 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, § 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 deforma-

§ 9604

tions, 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, § 104(c), added pars.
(3) and (4).
Subsec. (b). Pub. L. 99–499, § 104(d), designated existing provisions as par. (1), inserted par. (1) heading, and
added par. (2).
Subsec. (c)(1). Pub. L. 99–499, § 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, § 104(e)(2), added cl.
(C).
Subsec. (c)(3). Pub. L. 99–499, §§ 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-ofpocket 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, § 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, § 104(h), added par. (5).
Subsec. (c)(6). Pub. L. 99–499, § 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, § 104(i), added par. (7).
Subsec. (c)(8). Pub. L. 99–499, § 104(j), added par. (8).
Subsec. (c)(9). Pub. L. 99–499, § 104(k), added par. (9).
Subsec. (d)(1). Pub. L. 99–499, § 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 con-

§ 9605

TITLE 42—THE PUBLIC HEALTH AND WELFARE

tract made hereunder shall be subject to the cost-sharing provisions of subsection (c) of this section.’’
Subsec. (e)(1). Pub. L. 99–499, § 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, § 104(m), added
pars. (2) to (6). Former par. (2) redesignated (7).
Subsec. (e)(7). Pub. L. 99–499, § 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, § 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, § 104(o)(1), added subsec. (j).
Statutory Notes and Related Subsidiaries
ADMINISTRATOR OF THE AGENCY FOR TOXIC
SUBSTANCES AND DISEASE REGISTRY
Director of the Centers for Disease Control and Prevention to serve as the Administrator of the Agency for
Toxic Substances and Disease Registry consistent with
subsec. (i) of this section, see section 242c(a) of this
title.
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.

§ 9605. National contingency plan
(a) Revision and republication
Within one hundred and eighty days after December 11, 1980, the President shall, after notice
and opportunity for public comments, revise and
republish the national contingency plan for the
removal of oil and hazardous substances, originally prepared and published pursuant to section 1321 of title 33, to reflect and effectuate the
responsibilities and powers created by this chapter, in addition to those matters specified in section 1321(c)(2) 1 of title 33. Such revision shall include a section of the plan to be known as the
national hazardous substance response plan
which shall establish procedures and standards
for responding to releases of hazardous substances, pollutants, and contaminants, which
shall include at a minimum:
(1) methods for discovering and investigating facilities at which hazardous sub1 See References in Text note below.

Page 7680

stances 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

Page 7681

TITLE 42—THE PUBLIC HEALTH AND WELFARE

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); 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 Pri-

§ 9605

orities 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) 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.

§ 9605

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(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), 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

Page 7682

shall defer final listing of an eligible response
site on the National Priorities List if the
President determines that—
(A) the State, or another party under an
agreement with or order from the State, is
conducting a response action at the eligible
response site—
(i) in compliance with a State program
that specifically governs response actions
for the protection of public health and the
environment; and
(ii) that will provide long-term protection of human health and the environment; or
(B) the State is actively pursuing an
agreement to perform a response action described in subparagraph (A) at the site with
a person that the State has reason to believe
is capable of conducting a response action
that meets the requirements of subparagraph (A).
(2) Progress toward cleanup
If, after the last day of the 1-year period beginning on the date on which the President
proposes to list an eligible response site on the
National Priorities List, the President determines that the State or other party is not
making reasonable progress toward completing a response action at the eligible response site, the President may list the eligible
response site on the National Priorities List.
(3) Cleanup agreements
With respect to an eligible response site
under paragraph (1)(B), if, after the last day of
the 1-year period beginning on the date on
which the President proposes to list the eligible response site on the National Priorities
List, an agreement described in paragraph
(1)(B) has not been reached, the President may
defer the listing of the eligible response site
on the National Priorities List for an additional period of not to exceed 180 days if the
President determines deferring the listing
would be appropriate based on—
(A) the complexity of the site;
(B) substantial progress made in negotiations; and
(C) other appropriate factors, as determined by the President.
(4) Exceptions
The President may decline to defer, or elect
to discontinue a deferral of, a listing of an eligible response site on the National Priorities
List if the President determines that—
(A) deferral would not be appropriate because the State, as an owner or operator or
a significant contributor of hazardous substances to the facility, is a potentially responsible party;
(B) the criteria under the National Contingency Plan for issuance of a health advisory
have been met; or
(C) the conditions in paragraphs (1)
through (3), as applicable, are no longer
being met.
(Pub. L. 96–510, title I, § 105, Dec. 11, 1980, 94 Stat.
2779; Pub. L. 99–499, title I, § 105, Oct. 17, 1986, 100
Stat. 1625; Pub. L. 107–118, title II, § 232, Jan. 11,
2002, 115 Stat. 2379.)

Page 7683

TITLE 42—THE PUBLIC HEALTH AND WELFARE
Editorial Notes
REFERENCES IN TEXT

This chapter, referred to in subsecs. (a), (b), (c)(4), (f),
and (g)(4), was in the original ‘‘this Act’’, meaning Pub.
L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, which is classified principally
to this chapter. 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. (a),
was amended generally by Pub. L. 101–380, title IV,
§ 4201(a), Aug. 18, 1990, 104 Stat. 523. Prior to general
amendment, subsec. (c)(2) related to preparation of a
National Contingency Plan. Provisions relating to a
National Contingency Plan are contained in section
1321(d) of Title 33, Navigation and Navigable Waters.
Such amendments and the amendments made by the
Superfund Amendments and Reauthorization Act of
1986, referred to in subsec. (b), are the amendments
made by Pub. L. 99–499, Oct. 17, 1986, 100 Stat. 1613. For
complete classification of this Act to the Code, see
Short Title of 1986 Amendment note set out under section 9601 of this title and Tables.
AMENDMENTS
2002—Subsec. (h). Pub. L. 107–118 added subsec. (h).
1986—Subsec. (a). Pub. L. 99–499, § 105(a)(1), designated
existing provisions as subsec. (a) and added heading.
Subsec. (a)(8)(A). Pub. L. 99–499, § 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, § 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, § 105(a)(4), inserted ‘‘and
including consideration of minority firms in accordance with subsection (f)’’.
Subsec. (a)(10). Pub. L. 99–499, § 105(a)(5), added par.
(10).
Subsecs. (b) to (g). Pub. L. 99–499, § 105(b), added subsecs. (b) to (g).

§ 9606. Abatement actions
(a) Maintenance, jurisdiction, etc.
In addition to any other action taken by a
State or local government, when the President
determines that there may be an imminent and
substantial endangerment to the public health
or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such
relief as may be necessary to abate such danger
or threat, and the district court of the United
States in the district in which the threat occurs
shall have jurisdiction to grant such relief as
the public interest and the equities of the case
may require. The President may also, after notice to the affected State, take other action
under this section including, but not limited to,
issuing such orders as may be necessary to protect public health and welfare and the environment.
(b) Fines; reimbursement
(1) Any person who, without sufficient cause,
willfully violates, or fails or refuses to comply

§ 9606

with, any order of the President under subsection (a) 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) 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

§ 9607

TITLE 42—THE PUBLIC HEALTH AND WELFARE

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.
(Pub. L. 96–510, title I, § 106, Dec. 11, 1980, 94 Stat.
2780; Pub. L. 99–499, title I, §§ 106, 109(b), Oct. 17,
1986, 100 Stat. 1628, 1633; Pub. L. 99–514, § 2, Oct.
22, 1986, 100 Stat. 2095.)
Editorial Notes
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, 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,
§ 4201(a), Aug. 18, 1990, 104 Stat. 523. Prior to general
amendment, subsec. (c)(2) related to preparation of a
National Contingency Plan. Provisions relating to a
National Contingency Plan are contained in section
1321(d) of Title 33, Navigation and Navigable Waters.
AMENDMENTS
1986—Subsec. (b). Pub. L. 99–499 designated existing
provisions as par. (1), substituted ‘‘who, without sufficient cause, willfully’’ for ‘‘who willfully’’ and ‘‘$25,000’’
for ‘‘$5,000’’, and added par. (2).
Subsec. (b)(2)(A). Pub. L. 99–514 substituted ‘‘Internal
Revenue Code of 1986’’ for ‘‘Internal Revenue Code of
1954’’, which for purposes of codification was translated
as ‘‘title 26’’ thus requiring no change in text.
Statutory Notes and Related Subsidiaries
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.

§ 9607. Liability
(a) Covered persons; scope; recoverable costs
and damages; interest rate; ‘‘comparable maturity’’ date
Notwithstanding any other provision or rule of
law, and subject only to the defenses set forth in
subsection (b) of this section—
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of
any hazardous substance owned or operated
any facility at which such hazardous substances were disposed of,
(3) any person who by contract, agreement,
or otherwise arranged for disposal or treat1 See References in Text note below.

Page 7684

ment, 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 foresee-

Page 7685

TITLE 42—THE PUBLIC HEALTH AND WELFARE

able acts or omissions of any such third party
and the consequences that could foreseeably
result from such acts or omissions; or
(4) any combination of the foregoing paragraphs.
(c) Determination of amounts
(1) Except as provided in paragraph (2) of this
subsection, the liability under this section of an
owner or operator or other responsible person
for each release of a hazardous substance or incident involving release of a hazardous substance shall not exceed—
(A) for any vessel, other than an incineration vessel, which carries any hazardous substance as cargo or residue, $300 per gross ton,
or $5,000,000, whichever is greater;
(B) for any other vessel, other than an incineration vessel, $300 per gross ton, or $500,000,
whichever is greater;
(C) for any motor vehicle, aircraft, hazardous liquid pipeline facility (as defined in
section 60101(a) of title 49), or rolling stock,
$50,000,000 or such lesser amount as the President shall establish by regulation, but in no
event less than $5,000,000 (or, for releases of
hazardous substances as defined in section
9601(14)(A) of this title into the navigable waters, $8,000,000). Such regulations shall take
into account the size, type, location, storage,
and handling capacity and other matters relating to the likelihood of release in each such
class and to the economic impact of such limits on each such class; or
(D) for any incineration vessel or any facility other than those specified in subparagraph
(C) of this paragraph, the total of all costs of
response plus $50,000,000 for any damages under
this subchapter.
(2) Notwithstanding the limitations in paragraph (1) of this subsection, the liability of an
owner or operator or other responsible person
under this section shall be the full and total
costs of response and damages, if (A)(i) the release or threat of release of a hazardous substance was the result of willful misconduct or
willful negligence within the privity or knowledge of such person, or (ii) the primary cause of
the release was a violation (within the privity or
knowledge of such person) of applicable safety,
construction, or operating standards or regulations; or (B) such person fails or refuses to provide all reasonable cooperation and assistance
requested by a responsible public official in connection with response activities under the national contingency plan with respect to regulated carriers subject to the provisions of title
49 or vessels subject to the provisions of title 33
or 46, 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.

§ 9607

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

§ 9607

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(C) of subsection (a) 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), 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) 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) 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

Page 7686

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) 1 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.
1 See References in Text note below.

Page 7687

TITLE 42—THE PUBLIC HEALTH AND WELFARE

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

§ 9607

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

§ 9607

TITLE 42—THE PUBLIC HEALTH AND WELFARE

Page 7688

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.

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 1 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 pooledrisk 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.

(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.

(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)) 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.

(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

Such lien shall continue until the liability for
the costs (or a judgment against the person

Page 7689

TITLE 42—THE PUBLIC HEALTH AND WELFARE

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) 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.

§ 9607

(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) 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

§ 9607

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(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),
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

Page 7690

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) 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

Page 7691

TITLE 42—THE PUBLIC HEALTH AND WELFARE

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

§ 9607

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).
(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) 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 lia-

§ 9607

TITLE 42—THE PUBLIC HEALTH AND WELFARE
ble, 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

Page 7692

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).
(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), a bona
fide prospective purchaser whose potential liability for a release or threatened release is
based solely on the bona fide prospective purchaser 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.

Page 7693

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(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); and
(D) shall continue until the earlier of—
(i) satisfaction of the lien by sale or
other means; or
(ii) notwithstanding any statute of limitations under section 9613 of this title, recovery of all response costs incurred at the
facility.
(Pub. L. 96–510, title I, § 107, Dec. 11, 1980, 94 Stat.
2781; Pub. L. 99–499, title I, §§ 107(a)–(d)(2), (e), (f),
127(b), (e), title II, §§ 201, 207(c), Oct. 17, 1986, 100
Stat. 1628–1630, 1692, 1693, 1705; Pub. L. 99–514, § 2,
Oct. 22, 1986, 100 Stat. 2095; Pub. L. 103–429,
§ 7(e)(2), Oct. 31, 1994, 108 Stat. 4390; Pub. L.
104–208, div. A, title II, § 2502(a), Sept. 30, 1996, 110
Stat. 3009–462; Pub. L. 104–287, § 6(j)(2), Oct. 11,
1996, 110 Stat. 3400; Pub. L. 107–118, title I,
§ 102(a), title II, §§ 221, 222(b), Jan. 11, 2002, 115
Stat. 2356, 2368, 2371; Pub. L. 115–141, div. N,
§ 5(b), Mar. 23, 2018, 132 Stat. 1054.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2767, known as the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
which is classified principally to this chapter. For complete classification of this Act to the Code, see Short
Title note set out under section 9601 of this title and
Tables.
Such amendments, referred to in the last sentence of
subsec. (a), probably means the amendments made by
Pub. L. 99–499, Oct. 17, 1986, 100 Stat. 1613, known as the
‘‘Superfund Amendments and Reauthorization Act of
1986’’. For complete classification of this Act to the
Code, see Short Title of 1986 Amendment note set out
under section 9601 of this title and Tables.
Act of March 3, 1851 (46 U.S.C. 183ff), referred to in
subsec. (h), is act Mar. 3, 1851, ch. 43, 9 Stat. 635, which
was incorporated into the Revised Statutes as R.S.
§§ 4282, 4283, 4284 to 4287 and 4289, which were classified
to sections 182, 183, and 184 to 188 of the former Appendix to Title 46, Shipping, prior to being repealed and restated in chapter 305 of Title 46 by Pub. L. 109–304,
§§ 6(c), 19, Oct. 6, 2006, 120 Stat. 1509, 1710. For disposition of sections of the former Appendix to Title 46, see
Disposition Table preceding section 101 of Title 46.
The Federal Insecticide, Fungicide, and Rodenticide
Act, referred to in subsec. (i), is act June 25, 1947, ch.
125, as amended generally by Pub. L. 92–516, Oct. 21,
1972, 86 Stat. 973, which is classified generally to subchapter II (§ 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.

§ 9607

The Solid Waste Disposal Act, referred to in subsec.
(k)(1), (3), (6)(E)(i), is title II of Pub. L. 89–272, Oct. 20,
1965, 79 Stat. 997, as amended generally by Pub. L.
94–580, § 2, Oct. 21, 1976, 90 Stat. 2795. Subtitles C and I
of the Solid Waste Disposal Act are classified generally
to subchapters III (§ 6921 et seq.) and IX (§ 6991 et seq.),
respectively, of chapter 82 of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 6901 of this title and Tables.
Section 9641 of this title, referred to in subsec. (k),
was repealed by Pub. L. 99–499, title V, § 514(b), Oct. 17,
1986, 100 Stat. 1767.
Subchapter II of this chapter, referred to in subsec.
(k)(4)(A) and (C), was in the original ‘‘title II of this
Act’’, meaning title II of Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2796, known as the Hazardous Substance Response
Revenue Act of 1980, which enacted subchapter II of
this chapter and sections 4611, 4612, 4661, 4662, 4681, and
4682 of Title 26, Internal Revenue Code. Sections 221 to
223 and 232 of Pub. L. 96–510, which were classified to
sections 9631 to 9633 and 9641 of this title, comprising
subchapter II of this chapter, were repealed by Pub. L.
99–499, title V, §§ 514(b), 517(c)(1), Oct. 17, 1986, 100 Stat.
1767, 1774. For complete classification of title II to the
Code, see Short Title of 1980 Amendment note set out
under section 1 of Title 26 and Tables.
The Hazardous and Solid Waste Amendments of 1984,
referred to in subsec. (k)(6)(A), (E), is Pub. L. 98–616,
Nov. 8, 1984, 98 Stat. 3221. For complete classification of
this Act to the Code, see Short Title of 1984 Amendment note set out under section 6901 of this title and
Tables.
The Small Business Act, referred to in subsec. (p)(1),
is Pub. L. 85–536, § 2(1 et seq.), July 18, 1958, 72 Stat. 384,
which is classified generally to chapter 14A (§ 631 et
seq.) of Title 15, Commerce and Trade. For complete
classification of this Act to the Code, see Short Title
note set out under section 631 of Title 15 and Tables.
AMENDMENTS
2018—Subsec. (r)(1). Pub. L. 115–141 substituted ‘‘bona
fide prospective purchaser being considered’’ for ‘‘purchaser’s being considered’’.
2002—Subsecs. (o), (p). Pub. L. 107–118, § 102(a), added
subsecs. (o) and (p).
Subsec. (q). Pub. L. 107–118, § 221, added subsec. (q).
Subsec. (r). Pub. L. 107–118, § 222(b), added subsec. (r).
1996—Subsec. (c)(1)(C). Pub. L. 104–287 substituted
‘‘section 60101(a) of title 49’’ for ‘‘the Hazardous Liquid
Pipeline Safety Act of 1979’’.
Subsec. (n). Pub. L. 104–208 added subsec. (n).
1994—Subsec. (c)(1)(C). Pub. L. 103–429 substituted
‘‘hazardous liquid pipeline facility’’ for ‘‘pipeline’’.
1986—Subsec. (a). Pub. L. 99–514, in penultimate sentence, substituted ‘‘Internal Revenue Code of 1986’’ for
‘‘Internal Revenue Code of 1954’’, which for purposes of
codification was translated as ‘‘title 26’’ thus requiring
no change in text.
Pub. L. 99–499, § 107(b), inserted concluding provisions
relating to accrual and rate of interest on amounts recoverable under this section.
Subsec. (a)(1). Pub. L. 99–499, § 107(a), struck out
‘‘(otherwise subject to the jurisdiction of the United
States)’’ after ‘‘vessel’’.
Subsec. (a)(3). Pub. L. 99–499, § 127(b)(1), inserted ‘‘or
incineration vessel’’ after ‘‘facility’’.
Subsec. (a)(4). Pub. L. 99–499, §§ 107(b), 127(b)(2),
207(c)(1),
in
introductory
provisions,
inserted
‘‘, incineration vessels’’ after ‘‘vessels’’, in subpar. (A),
inserted ‘‘or an Indian tribe’’ after ‘‘State’’, and added
subpar. (D).
Subsec. (c)(1)(A). Pub. L. 99–499, § 127(b)(3), inserted
‘‘, other than an incineration vessel,’’ after ‘‘vessel’’.
Subsec. (c)(1)(B). Pub. L. 99–499, § 127(b)(4), inserted
‘‘other than an incineration vessel,’’ after ‘‘other vessel,’’.
Subsec. (c)(1)(D). Pub. L. 99–499, § 127(b)(5), inserted
‘‘any incineration vessel or’’ before ‘‘any facility’’.
Subsec. (d). Pub. L. 99–499, § 107(c), amended subsec.
(d) generally. Prior to amendment, subsec. (d) read as

§ 9607

TITLE 42—THE PUBLIC HEALTH AND WELFARE

follows: ‘‘No person shall be liable under this subchapter for damages as a result of actions taken or
omitted in the course of rendering care, assistance, or
advice in accordance with the national contingency
plan or at the direction of an onscene coordinator appointed under such plan, with respect to an incident
creating a danger to public health or welfare or the environment as a result of any release of a hazardous substance or the threat thereof. This subsection shall not
preclude liability for damages as the result of gross
negligence or intentional misconduct on the part of
such person. For the purposes of the preceding sentence, reckless, willful, or wanton misconduct shall
constitute gross negligence.’’
Subsec. (f)(1). Pub. L. 99–499, § 107(d)(1), designated existing provisions as par. (1) and added heading.
Pub. L. 99–499, § 207(c)(2)(A), inserted ‘‘and to any Indian tribe for natural resources belonging to, managed
by, controlled by, or appertaining to such tribe, or held
in trust for the benefit of such tribe, or belonging to a
member of such tribe if such resources are subject to a
trust restriction on alienation’’ after third reference to
‘‘State’’.
Pub. L. 99–499, § 207(c)(2)(B), inserted ‘‘or Indian tribe’’
after fourth reference to ‘‘State’’.
Pub. L. 99–499, § 207(c)(2)(C), inserted in first sentence
‘‘, so long as, in the case of damages to an Indian tribe
occurring pursuant to a Federal permit or license, the
issuance of that permit or license was not inconsistent
with the fiduciary duty of the United States with respect to such Indian tribe’’.
Pub. L. 99–499, § 107(d)(2), substituted ‘‘Sums recovered by the United States Government as trustee under
this subsection shall be retained by the trustee, without further appropriation, for use only to restore, replace, or acquire the equivalent of such natural resources. Sums recovered by a State as trustee under
this subsection shall be available for use only to restore, replace, or acquire the equivalent of such natural
resources by the State. The measure of damages in any
action under subparagraph (C) of subsection (a) shall
not be limited by the sums which can be used to restore
or replace such resources. There shall be no double recovery under this chapter for natural resource damages, including the costs of damage assessment or restoration, rehabilitation, or acquisition for the same release and natural resource’’ for ‘‘Sums recovered shall
be available for use to restore, rehabilitate, or acquire
the equivalent of such natural resources by the appropriate agencies of the Federal Government or the State
government, but the measure of such damages shall not
be limited by the sums which can be used to restore or
replace such resources’’.
Pub. L. 99–499, § 207(c)(2)(D), which directed the insertion of ‘‘or the Indian tribe’’ after ‘‘State government’’,
could not be executed because the prior amendment by
section 107(d)(2) of Pub. L. 99–499, struck out third sentence referring to ‘‘State government’’.
Subsec. (f)(2). Pub. L. 99–499, § 107(d)(1), added par. (2).
Subsec. (g). Pub. L. 99–499, § 107(e), amended subsec.
(g) generally. Prior to amendment, subsec. (g) read as
follows: ‘‘Each department, agency, or instrumentality
of the executive, legislative, and judicial branches of
the Federal Government shall be subject to, and comply with, this chapter in the same manner and to the
same extent, both procedurally and substantively, as
any nongovernmental entity, including liability under
this section.’’
Subsec. (h). Pub. L. 99–499, § 127(e), inserted ‘‘, under
maritime tort law,’’ after ‘‘with this section’’ and inserted ‘‘or the absence of any physical damage to the
proprietary interest of the claimant’’ before the period
at end.
Subsec. (i). Pub. L. 99–499, § 207(c)(3), inserted ‘‘or Indian tribe’’ after ‘‘State’’.
Subsec. (j). Pub. L. 99–499, § 207(c)(4), inserted ‘‘or Indian tribe’’ after first reference to ‘‘State’’.
Subsec. (k)(5), (6). Pub. L. 99–499, § 201, added pars. (5)
and (6).
Subsec. (l). Pub. L. 99–499, § 107(f), added subsec. (l).

Page 7694

Subsec. (l)(3). Pub. L. 99–514 substituted ‘‘Internal
Revenue Code of 1986’’ for ‘‘Internal Revenue Code of
1954’’, which for purposes of codification was translated
as ‘‘title 26’’ thus requiring no change in text.
Subsec. (m). Pub. L. 99–499, § 107(f), added subsec. (m).
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE OF 1996 AMENDMENT
Amendment by Pub. L. 104–208 applicable with respect to any claim that has not been finally adjudicated as of Sept. 30, 1996, see section 2505 of Pub. L.
104–208, set out as a note under section 6991b of this
title.
EFFECT ON CONCLUDED ACTIONS
Pub. L. 107–118, title I, § 103, Jan. 11, 2002, 115 Stat.
2360, provided that: ‘‘The amendments made by this
title [amending this section and section 9622 of this
title] shall not apply to or in any way affect any settlement lodged in, or judgment issued by, a United States
District Court, or any administrative settlement or
order entered into or issued by the United States or
any State, before the date of the enactment of this Act
[Jan. 11, 2002].’’
CENTRAL HAZARDOUS MATERIALS FUND
Pub. L. 110–161, div. F, title I, Dec. 26, 2007, 121 Stat.
2116, as amended by Pub. L. 111–88, div. A, title I, Oct.
30, 2009, 123 Stat. 2924, provided in part: ‘‘That hereafter, notwithstanding 31 U.S.C. 3302, sums recovered
from or paid by a party including any fines or penalties, shall be credited to this account, to be available
until expended without further appropriation: Provided
further, That hereafter such sums recovered from or
paid by any party are not limited to monetary payments and may include stocks, bonds or other personal
or real property, which may be retained, liquidated, or
otherwise disposed of by the Secretary and which shall
be credited to this account.’’
Similar provisions were contained in the following
prior appropriation acts:
Pub. L. 109–54, title I, Aug. 2, 2005, 119 Stat. 518.
Pub. L. 108–447, div. E, title I, Dec. 8, 2004, 118 Stat.
3041.
Pub. L. 108–108, title I, § 310, Nov. 10, 2003, 117 Stat.
1243.
Pub. L. 108–7, div. F, title I, Feb. 20, 2003, 117 Stat. 218.
Pub. L. 107–63, title I, Nov. 5, 2001, 115 Stat. 416.
Pub. L. 106–291, title I, Oct. 11, 2000, 114 Stat. 923.
Pub. L. 106–113, div. B, § 1000(a)(3) [title I], Nov. 29,
1999, 113 Stat. 1535, 1501A–136.
Pub. L. 105–277, div. A, § 101(e) [title I], Oct. 21, 1998,
112 Stat. 2681–231, 2681–233.
Pub. L. 105–83, title I, Nov. 14, 1997, 111 Stat. 1544.
Pub. L. 104–208, div. A, title I, § 101(d) [title I], Sept.
30, 1996, 110 Stat. 3009–181, 3009–182.
Pub. L. 104–134, title I, § 101(c) [title I], Apr. 26, 1996,
110 Stat. 1321–156, 1321–157; renumbered title I, Pub. L.
104–140, § 1(a), May 2, 1996, 110 Stat. 1327.
Pub. L. 103–332, title I, Sept. 30, 1994, 108 Stat. 2500.
RECOVERY OF COSTS
Pub. L. 104–303, title II, § 209, Oct. 12, 1996, 110 Stat.
3681, provided that: ‘‘Amounts recovered under section
107 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9607)
for any response action taken by the Secretary in support of the civil works program of the Department of
the Army and any other amounts recovered by the Secretary from a contractor, insurer, surety, or other person to reimburse the Department of the Army for any
expenditure for environmental response activities in
support of the Army civil works program shall be credited to the appropriate trust fund account from which
the cost of such response action has been paid or will
be charged.’’
COORDINATION OF TITLES I TO IV OF PUB. L. 99–499
Any provision of titles I to IV of Pub. L. 99–499, imposing any tax, premium, or fee; establishing any trust

Page 7695

TITLE 42—THE PUBLIC HEALTH AND WELFARE

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.

§ 9608. Financial responsibility
(a) Establishment and maintenance by owner or
operator of vessel; amount; failure to obtain
certification of compliance
(1) The owner or operator of each vessel (except a nonself-propelled barge that does not
carry hazardous substances as cargo) over three
hundred gross tons that uses any port or place
in the United States or the navigable waters or
any offshore facility, shall establish and maintain, in accordance with regulations promulgated by the President, evidence of financial responsibility of $300 per gross ton (or for a vessel
carrying hazardous substances as cargo, or
$5,000,000, whichever is greater) to cover the liability prescribed under paragraph (1) of section
9607(a) of this title. Financial responsibility may
be established by any one, or any combination,
of the following: insurance, guarantee, surety
bond, or qualification as a self-insurer. Any
bond filed shall be issued by a bonding company
authorized to do business in the United States.
In cases where an owner or operator owns, operates, or charters more than one vessel subject to
this subsection, evidence of financial responsibility need be established only to meet the maximum liability applicable to the largest of such
vessels.
(2) The Secretary of the Treasury shall withhold or revoke the clearance required by section
60105 of title 46 of any vessel subject to this subsection that does not have certification furnished by the President that the financial responsibility provisions of paragraph (1) of this
subsection have been complied with.
(3) The Secretary of Transportation, in accordance with regulations issued by him, shall (A)
deny entry to any port or place in the United
States or navigable waters to, and (B) detain at
the port or place in the United States from
which it is about to depart for any other port or
place in the United States, any vessel subject to
this subsection that, upon request, does not
produce certification furnished by the President
that the financial responsibility provisions of
paragraph (1) of this subsection have been complied with.
(4) In addition to the financial responsibility
provisions of paragraph (1) of this subsection,
the President shall require additional evidence
of financial responsibility for incineration vessels in such amounts, and to cover such liabilities recognized by law, as the President deems
appropriate, taking into account the potential
risks posed by incineration and transport for incineration, and any other factors deemed relevant.
(b) Establishment and maintenance by owner or
operator of production, etc., facilities;
amount; adjustment; consolidated form of responsibility; coverage of motor carriers
(1) Beginning not earlier than five years after
December 11, 1980, the President shall promulgate requirements (for facilities in addition to
those under subtitle C of the Solid Waste Dis-

§ 9608

posal Act [42 U.S.C. 6921 et seq.] and other Federal law) that classes of facilities establish and
maintain evidence of financial responsibility
consistent with the degree and duration of risk
associated with the production, transportation,
treatment, storage, or disposal of hazardous substances. Not later than three years after December 11, 1980, the President shall identify those
classes for which requirements will be first developed and publish notice of such identification
in the Federal Register. Priority in the development of such requirements shall be accorded to
those classes of facilities, owners, and operators
which the President determines present the
highest level of risk of injury.
(2) The level of financial responsibility shall
be initially established, and, when necessary,
adjusted to protect against the level of risk
which the President in his discretion believes is
appropriate based on the payment experience of
the Fund, commercial insurers, courts settlements and judgments, and voluntary claims satisfaction. To the maximum extent practicable,
the President shall cooperate with and seek the
advice of the commercial insurance industry in
developing financial responsibility requirements. Financial responsibility may be established by any one, or any combination, of the
following: insurance, guarantee, surety bond,
letter of credit, or qualification as a self-insurer.
In promulgating requirements under this section, the President is authorized to specify policy or other contractual terms, conditions, or
defenses which are necessary, or which are unacceptable, in establishing such evidence of financial responsibility in order to effectuate the purposes of this chapter.
(3) Regulations promulgated under this subsection shall incrementally impose financial responsibility requirements as quickly as can reasonably be achieved but in no event more than
4 years after the date of promulgation. Where
possible, the level of financial responsibility
which the President believes appropriate as a
final requirement shall be achieved through incremental, annual increases in the requirements.
(4) Where a facility is owned or operated by
more than one person, evidence of financial responsibility covering the facility may be established and maintained by one of the owners or
operators, or, in consolidated form, by or on behalf of two or more owners or operators. When
evidence of financial responsibility is established in a consolidated form, the proportional
share of each participant shall be shown. The
evidence shall be accompanied by a statement
authorizing the applicant to act for and in behalf of each participant in submitting and maintaining the evidence of financial responsibility.
(5) The requirements for evidence of financial
responsibility for motor carriers covered by this
chapter shall be determined under section 31139
of title 49.
(c) Direct action
(1) Releases from vessels
In the case of a release or threatened release
from a vessel, any claim authorized by section
9607 or 9611 of this title may be asserted directly against any guarantor providing evi-

§ 9609

TITLE 42—THE PUBLIC HEALTH AND WELFARE

dence of financial responsibility for such vessel under subsection (a). In defending such a
claim, the guarantor may invoke all rights
and defenses which would be available to the
owner or operator under this subchapter. The
guarantor may also invoke the defense that
the incident was caused by the willful misconduct of the owner or operator, but the
guarantor may not invoke any other defense
that the guarantor might have been entitled
to invoke in a proceeding brought by the
owner or operator against him.
(2) Releases from facilities
In the case of a release or threatened release
from a facility, any claim authorized by section 9607 or 9611 of this title may be asserted
directly against any guarantor providing evidence of financial responsibility for such facility under subsection (b), if the person liable
under section 9607 of this title is in bankruptcy, reorganization, or arrangement pursuant to the Federal Bankruptcy Code, or if,
with reasonable diligence, jurisdiction in the
Federal courts cannot be obtained over a person liable under section 9607 of this title who
is likely to be solvent at the time of judgment.
In the case of any action pursuant to this
paragraph, the guarantor shall be entitled to
invoke all rights and defenses which would
have been available to the person liable under
section 9607 of this title if any action had been
brought against such person by the claimant
and all rights and defenses which would have
been available to the guarantor if an action
had been brought against the guarantor by
such person.
(d) Limitation of guarantor liability
(1) Total liability
The total liability of any guarantor in a direct action suit brought under this section
shall be limited to the aggregate amount of
the monetary limits of the policy of insurance,
guarantee, surety bond, letter of credit, or
similar instrument obtained from the guarantor by the person subject to liability under
section 9607 of this title for the purpose of satisfying the requirement for evidence of financial responsibility.
(2) Other liability
Nothing in this subsection shall be construed to limit any other State or Federal
statutory, contractual, or common law liability of a guarantor, including, but not limited
to, the liability of such guarantor for bad faith
either in negotiating or in failing to negotiate
the settlement of any claim. Nothing in this
subsection shall be construed, interpreted, or
applied to diminish the liability of any person
under section 9607 of this title or other applicable law.
(Pub. L. 96–510, title I, § 108, Dec. 11, 1980, 94 Stat.
2785; Pub. L. 99–499, title I, §§ 108, 127(c), Oct. 17,
1986, 100 Stat. 1631, 1692.)
Editorial Notes
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsec.
(b)(1), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat.

Page 7696

997, as amended generally by Pub. L. 94–580, § 2, Oct. 21,
1976, 90 Stat. 2795. Subtitle C of the Solid Waste Disposal Act is classified generally to subchapter III (§ 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.
This chapter, referred to in subsec. (b)(2), (5), was in
the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, which is classified principally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 9601 of this title
and Tables.
The Federal Bankruptcy Code, referred to in subsec.
(c)(2), probably means a reference to Title 11, Bankruptcy.
CODIFICATION
In subsec. (a)(2), ‘‘section 60105 of title 46’’ substituted
for ‘‘section 4197 of the Revised Statutes of the United
States’’ on authority of Pub. L. 109–304, § 18(c), Oct. 6,
2006, 120 Stat. 1709, which Act enacted section 60105 of
Title 46, Shipping.
In subsec. (b)(5), ‘‘section 31139 of title 49’’ substituted
for ‘‘section 30 of the Motor Carrier Act of 1980, Public
Law 96–296’’ on authority of Pub. L. 103–272, § 6(b), July
5, 1994, 108 Stat. 1378, the first section of which enacted
subtitles II, III, and V to X of Title 49, Transportation.
AMENDMENTS
1986—Subsec. (a)(1). Pub. L. 99–499, § 127(c)(1), inserted
‘‘to cover the liability prescribed under paragraph (1) of
section 9607(a) of this title’’ after ‘‘whichever is greater)’’.
Subsec. (a)(4). Pub. L. 99–499, § 127(c)(2), added par. (4).
Subsec. (b)(2). Pub. L. 99–499, § 108(a), inserted provisions relating to evidence of financial responsibility
and authority of the President regarding establishment
of that evidence.
Subsec. (b)(3). Pub. L. 99–499, § 108(b), substituted ‘‘as
quickly as can reasonably be achieved but in no event
more than 4 years’’ for ‘‘over a period of not less than
three and no more than six years’’.
Subsec. (c). Pub. L. 99–499, § 108(c), amended subsec.
(c) generally. Prior to amendment, subsec. (c) read as
follows: ‘‘Any claim authorized by section 9607 or 9611
of this title may be asserted directly against any guarantor providing evidence of financial responsibility as
required under this section. In defending such a claim,
the guarantor may invoke all rights and defenses which
would be available to the owner or operator under this
subchapter. The guarantor may also invoke the defense
that the incident was caused by the willful misconduct
of the owner or operator, but such guarantor may not
invoke any other defense that such guarantor might
have been entitled to invoke in a proceeding brought by
the owner or operator against him.’’
Subsec. (d). Pub. L. 99–499, § 108(c), amended subsec.
(d) generally. Prior to amendment, subsec. (d) read as
follows: ‘‘Any guarantor acting in good faith against
which claims under this chapter are asserted as a guarantor shall be liable under section 9607 of this title or
section 9612(c) of this title only up to the monetary
limits of the policy of insurance or indemnity contract
such guarantor has undertaken or of the guaranty of
other evidence of financial responsibility furnished
under this section, and only to the extent that liability
is not excluded by restrictive endorsement: Provided,
That this subsection shall not alter the liability of any
person under section 9607 of this title.’’

§ 9609. Civil penalties and awards
(a) Class I administrative penalty
(1) Violations
A civil penalty of not more than $25,000 per
violation may be assessed by the President in
the case of any of the following—

Page 7697

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(A) A violation of the requirements of section 9603(a) or (b) of this title (relating to
notice).
(B) A violation of the requirements of section 9603(d)(2) of this title (relating to destruction of records, etc.).
(C) A violation of the requirements of section 9608 of this title (relating to financial
responsibility, etc.), the regulations issued
under section 9608 of this title, or with any
denial or detention order under section 9608
of this title.
(D) A violation of an order under section
9622(d)(3) of this title (relating to settlement
agreements for action under section 9604(b)
of this title).
(E) Any failure or refusal referred to in
section 9622(l) of this title (relating to violations of administrative orders, consent decrees, or agreements under section 9620 of
this title).
(2) Notice and hearings
No civil penalty may be assessed under this
subsection unless the person accused of the
violation is given notice and opportunity for a
hearing with respect to the violation.
(3) Determining amount
In determining the amount of any penalty
assessed pursuant to this subsection, the
President shall take into account the nature,
circumstances, extent and gravity of the violation or violations and, with respect to the
violator, ability to pay, any prior history of
such violations, the degree of culpability, economic benefit or savings (if any) resulting
from the violation, and such other matters as
justice may require.
(4) Review
Any person against whom a civil penalty is
assessed under this subsection may obtain review thereof in the appropriate district court
of the United States by filing a notice of appeal in such court within 30 days from the date
of such order and by simultaneously sending a
copy of such notice by certified mail to the
President. The President shall promptly file in
such court a certified copy of the record upon
which such violation was found or such penalty imposed. If any person fails to pay an assessment of a civil penalty after it has become
a final and unappealable order or after the appropriate court has entered final judgment in
favor of the United States, the President may
request the Attorney General of the United
States to institute a civil action in an appropriate district court of the United States to
collect the penalty, and such court shall have
jurisdiction to hear and decide any such action. In hearing such action, the court shall
have authority to review the violation and the
assessment of the civil penalty on the record.
(5) Subpoenas
The President may issue subpoenas for the
attendance and testimony of witnesses and the
production of relevant papers, books, or documents in connection with hearings under this
subsection. In case of contumacy or refusal to
obey a subpoena issued pursuant to this para-

§ 9609

graph and served upon any person, the district
court of the United States for any district in
which such person is found, resides, or transacts business, upon application by the United
States and after notice to such person, shall
have jurisdiction to issue an order requiring
such person to appear and give testimony before the administrative law judge or to appear
and produce documents before the administrative law judge, or both, and any failure to obey
such order of the court may be punished by
such court as a contempt thereof.
(b) Class II administrative penalty
A civil penalty of not more than $25,000 per
day for each day during which the violation continues may be assessed by the President in the
case of any of the following—
(1) A violation of the notice requirements of
section 9603(a) or (b) of this title.
(2) A violation of section 9603(d)(2) of this
title (relating to destruction of records, etc.).
(3) A violation of the requirements of section
9608 of this title (relating to financial responsibility, etc.), the regulations issued under
section 9608 of this title, or with any denial or
detention order under section 9608 of this title.
(4) A violation of an order under section
9622(d)(3) of this title (relating to settlement
agreements for action under section 9604(b) of
this title).
(5) Any failure or refusal referred to in section 9622(l) of this title (relating to violations
of administrative orders, consent decrees, or
agreements under section 9620 of this title).
In the case of a second or subsequent violation
the amount of such penalty may be not more
than $75,000 for each day during which the violation continues. Any civil penalty under this subsection shall be assessed and collected in the
same manner, and subject to the same provisions, as in the case of civil penalties assessed
and collected after notice and opportunity for
hearing on the record in accordance with section
554 of title 5. In any proceeding for the assessment of a civil penalty under this subsection the
President may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents
and may promulgate rules for discovery procedures. Any person who requested a hearing with
respect to a civil penalty under this subsection
and who is aggrieved by an order assessing the
civil penalty may file a petition for judicial review of such order with the United States Court
of Appeals for the District of Columbia Circuit
or for any other circuit in which such person resides or transacts business. Such a petition may
only be filed within the 30-day period beginning
on the date the order making such assessment
was issued.
(c) Judicial assessment
The President may bring an action in the
United States district court for the appropriate
district to assess and collect a penalty of not
more than $25,000 per day for each day during
which the violation (or failure or refusal) continues in the case of any of the following—
(1) A violation of the notice requirements of
section 9603(a) or (b) of this title.

§ 9610

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(2) A violation of section 9603(d)(2) of this
title (relating to destruction of records, etc.).
(3) A violation of the requirements of section
9608 of this title (relating to financial responsibility, etc.), the regulations issued under
section 9608 of this title, or with any denial or
detention order under section 9608 of this title.
(4) A violation of an order under section
9622(d)(3) of this title (relating to settlement
agreements for action under section 9604(b) of
this title).
(5) Any failure or refusal referred to in section 9622(l) of this title (relating to violations
of administrative orders, consent decrees, or
agreements under section 9620 of this title).
In the case of a second or subsequent violation
(or failure or refusal), the amount of such penalty may be not more than $75,000 for each day
during which the violation (or failure or refusal)
continues. For additional provisions providing
for judicial assessment of civil penalties for failure to comply with a request or order under section 9604(e) of this title (relating to information
gathering and access authorities), see section
9604(e) of this title.
(d) Awards
The President may pay an award of up to
$10,000 to any individual who provides information leading to the arrest and conviction of any
person for a violation subject to a criminal penalty under this chapter, including any violation
of section 9603 of this title and any other violation referred to in this section. The President
shall, by regulation, prescribe criteria for such
an award and may pay any award under this
subsection from the Fund, as provided in section
9611 of this title.
(e) Procurement procedures
Notwithstanding any other provision of law,
any executive agency may use competitive procedures or procedures other than competitive
procedures to procure the services of experts for
use in preparing or prosecuting a civil or criminal action under this chapter, whether or not
the expert is expected to testify at trial. The executive agency need not provide any written justification for the use of procedures other than
competitive procedures when procuring such expert services under this chapter and need not
furnish for publication in the Commerce Business Daily or otherwise any notice of solicitation or synopsis with respect to such procurement.
(f) Savings clause
Action taken by the President pursuant to
this section shall not affect or limit the President’s authority to enforce any provisions of
this chapter.
(Pub. L. 96–510, title I, § 109, Dec. 11, 1980, 94 Stat.
2787; Pub. L. 99–499, title I, § 109(c), Oct. 17, 1986,
100 Stat. 1633.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsecs. (d) to (f), was in
the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, known as the Comprehensive Envi-

Page 7698

ronmental Response, Compensation, and Liability Act
of 1980, which is classified principally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 9601 of this title
and Tables.
AMENDMENTS
1986—Pub. L. 99–499 amended section generally. Prior
to amendment, section read as follows: ‘‘Any person
who, after notice and an opportunity for a hearing, is
found to have failed to comply with the requirements
of section 9608 of this title, the regulations issued
thereunder, or with any denial or detention order shall
be liable to the United States for a civil penalty, not to
exceed $10,000 for each day of violation.’’
Statutory Notes and Related Subsidiaries
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.

§ 9610. Employee protection
(a) Activities of employee subject to protection
No person shall fire or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason
of the fact that such employee or representative
has provided information to a State or to the
Federal Government, filed, instituted, or caused
to be filed or instituted any proceeding under
this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of
this chapter.
(b) Administrative grievance procedure in cases
of alleged violations
Any employee or a representative of employees who believes that he has been fired or otherwise discriminated against by any person in violation of subsection (a) of this section may,
within thirty days after such alleged violation
occurs, apply to the Secretary of Labor for a review of such firing or alleged discrimination. A
copy of the application shall be sent to such person, who shall be the respondent. Upon receipt
of such application, the Secretary of Labor shall
cause such investigation to be made as he deems
appropriate. Such investigation shall provide an
opportunity for a public hearing at the request
of any party to such review to enable the parties
to present information relating to such alleged
violation. The parties shall be given written notice of the time and place of the hearing at least
five days prior to the hearing. Any such hearing
shall be of record and shall be subject to section
554 of title 5. Upon receiving the report of such
investigation, the Secretary of Labor shall
make findings of fact. If he finds that such violation did occur, he shall issue a decision, incorporating an order therein and his findings, requiring the party committing such violation to
take such affirmative action to abate the violation as the Secretary of Labor deems appropriate, including, but not limited to, the rehiring or reinstatement of the employee or representative of employees to his former position

Page 7699

TITLE 42—THE PUBLIC HEALTH AND WELFARE

with compensation. If he finds that there was no
such violation, he shall issue an order denying
the application. Such order issued by the Secretary of Labor under this subparagraph shall be
subject to judicial review in the same manner as
orders and decisions are subject to judicial review under this chapter.
(c) Assessment of costs and expenses against violator subsequent to issuance of order of
abatement
Whenever an order is issued under this section
to abate such violation, at the request of the applicant a sum equal to the aggregate amount of
all costs and expenses (including the attorney’s
fees) determined by the Secretary of Labor to
have been reasonably incurred by the applicant
for, or in connection with, the institution and
prosecution of such proceedings, shall be assessed against the person committing such violation.
(d) Defenses
This section shall have no application to any
employee who acting without discretion from
his employer (or his agent) deliberately violates
any requirement of this chapter.
(e) Presidential evaluations of potential loss of
shifts of employment resulting from administration or enforcement of provisions; investigations; procedures applicable, etc.
The President shall conduct continuing evaluations of potential loss of shifts of employment
which may result from the administration or enforcement of the provisions of this chapter, including,
where
appropriate,
investigating
threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement. Any employee who is
discharged, or laid off, threatened with discharge or layoff, or otherwise discriminated
against by any person because of the alleged results of such administration or enforcement, or
any representative of such employee, may request the President to conduct a full investigation of the matter and, at the request of any
party, shall hold public hearings, require the
parties, including the employer involved, to
present information relating to the actual or potential effect of such administration or enforcement on employment and any alleged discharge,
layoff, or other discrimination, and the detailed
reasons or justification therefore.1 Any such
hearing shall be of record and shall be subject to
section 554 of title 5. Upon receiving the report
of such investigation, the President shall make
findings of fact as to the effect of such administration or enforcement on employment and on
the alleged discharge, layoff, or discrimination
and shall make such recommendations as he
deems appropriate. Such report, findings, and
recommendations shall be available to the public. Nothing in this subsection shall be construed to require or authorize the President or
any State to modify or withdraw any action,
standard, limitation, or any other requirement
of this chapter.
(Pub. L. 96–510, title I, § 110, Dec. 11, 1980, 94 Stat.
2787.)
1 So in original.

§ 9611

Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a), (b), (d), and
(e), was in the original ‘‘this Act’’, meaning Pub. L.
96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, which is classified principally
to this chapter. For complete classification of this Act
to the Code, see Short Title note set out under section
9601 of this title and Tables.

§ 9611. Uses of Fund
(a) In general
For the purposes specified in this section there
is authorized to be appropriated from the Hazardous Substance Superfund established under
subchapter A of chapter 98 of title 26 not more
than $8,500,000,000 for the 5-year period beginning on October 17, 1986, and not more than
$5,100,000,000 for the period commencing October
1, 1991, and ending September 30, 1994, and such
sums shall remain available until expended. The
preceding sentence constitutes a specific authorization for the funds appropriated under title II
of Public Law 99-160 (relating to payment to the
Hazardous Substances Trust Fund). The President shall use the money in the Fund for the following purposes:
(1) Payment of governmental response costs
incurred pursuant to section 9604 of this title,
including costs incurred pursuant to the Intervention on the High Seas Act [33 U.S.C. 1471 et
seq.].
(2) Payment of any claim for necessary response costs incurred by any other person as a
result of carrying out the national contingency plan established under section 1321(c) 1
of title 33 and amended by section 9605 of this
title: Provided, however, That such costs must
be approved under said plan and certified by
the responsible Federal official.
(3) Payment of any claim authorized by subsection (b) of this section and finally decided
pursuant to section 9612 of this title, including
those costs set out in subsection 9612(c)(3) of
this title.
(4) Payment of costs specified under subsection (c) of this section.
(5) GRANTS FOR TECHNICAL ASSISTANCE.—The
cost of grants under section 9617(e) of this title
(relating to public participation grants for
technical assistance).
(6) LEAD CONTAMINATED SOIL.—Payment of
not to exceed $15,000,000 for the costs of a pilot
program for removal, decontamination, or
other action with respect to lead-contaminated soil in one to three different metropolitan areas.
The President shall not pay for any administrative costs or expenses out of the Fund unless
such costs and expenses are reasonably necessary for and incidental to the implementation
of this subchapter.
(b) Additional authorized purposes
(1) In general
Claims asserted and compensable but unsatisfied under provisions of section 1321 of
1 See References in Text note below.

§ 9611

TITLE 42—THE PUBLIC HEALTH AND WELFARE

title 33, which are modified by section 304 of
this Act may be asserted against the Fund
under this subchapter; and other claims resulting from a release or threat of release of a
hazardous substance from a vessel or a facility
may be asserted against the Fund under this
subchapter for injury to, or destruction or loss
of, natural resources, including cost for damage assessment: Provided, however, That any
such claim may be asserted only by the President, as trustee, for natural resources over
which the United States has sovereign rights,
or natural resources within the territory or
the fishery conservation zone of the United
States to the extent they are managed or protected by the United States, or by any State
for natural resources within the boundary of
that State belonging to, managed by, controlled by, or appertaining to the State, or by
any Indian tribe or by the United States acting on behalf of any Indian tribe for natural
resources belonging to, managed by, controlled by, or appertaining to such tribe, or
held in trust for the benefit of such tribe, or
belonging to a member of such tribe if such resources are subject to a trust restriction on
alienation.
(2) Limitation on payment of natural resource
claims
(A) General requirements
No natural resource claim may be paid
from the Fund unless the President determines that the claimant has exhausted all
administrative and judicial remedies to recover the amount of such claim from persons
who may be liable under section 9607 of this
title.
(B) Definition
As used in this paragraph, the term ‘‘natural resource claim’’ means any claim for injury to, or destruction or loss of, natural resources. The term does not include any
claim for the costs of natural resource damage assessment.
(c) Peripheral matters and limitations
Uses of the Fund under subsection (a) of this
section include—
(1) The costs of assessing both short-term
and long-term injury to, destruction of, or loss
of any natural resources resulting from a release of a hazardous substance.
(2) The costs of Federal or State or Indian
tribe efforts in the restoration, rehabilitation,
or replacement or acquiring the equivalent of
any natural resources injured, destroyed, or
lost as a result of a release of a hazardous substance.
(3) Subject to such amounts as are provided
in appropriation Acts, the costs of a program
to identify, investigate, and take enforcement
and abatement action against releases of hazardous substances.
(4) Any costs incurred in accordance with
subsection (m) of this section (relating to
ATSDR) and section 9604(i) of this title, including the costs of epidemiologic and laboratory studies, health assessments, preparation
of toxicologic profiles, development and maintenance of a registry of persons exposed to

Page 7700

hazardous substances to allow long-term
health effect studies, and diagnostic services
not otherwise available to determine whether
persons in populations exposed to hazardous
substances in connection with a release or a
suspected release are suffering from long-latency diseases.
(5) Subject to such amounts as are provided
in appropriation Acts, the costs of providing
equipment and similar overhead, related to
the purposes of this chapter and section 1321 of
title 33, and needed to supplement equipment
and services available through contractors or
other non-Federal entities, and of establishing
and maintaining damage assessment capability, for any Federal agency involved in
strike forces, emergency task forces, or other
response teams under the national contingency plan.
(6) Subject to such amounts as are provided
in appropriation Acts, the costs of a program
to protect the health and safety of employees
involved in response to hazardous substance
releases. Such program shall be developed
jointly by the Environmental Protection
Agency, the Occupational Safety and Health
Administration, and the National Institute for
Occupational Safety and Health and shall include, but not be limited to, measures for
identifying and assessing hazards to which
persons engaged in removal, remedy, or other
response to hazardous substances may be exposed, methods to protect workers from such
hazards, and necessary regulatory and enforcement measures to assure adequate protection
of such employees.
(7) EVALUATION COSTS UNDER PETITION PROVISIONS OF SECTION 9605(d).—Costs incurred by the
President in evaluating facilities pursuant to
petitions under section 9605(d) of this title (relating to petitions for assessment of release).
COSTS
UNDER
SECTION
(8)
CONTRACT
9604(a)(1).—The costs of contracts or arrangements entered into under section 9604(a)(1) of
this title to oversee and review the conduct of
remedial investigations and feasibility studies
undertaken by persons other than the President and the costs of appropriate Federal and
State oversight of remedial activities at National Priorities List sites resulting from consent orders or settlement agreements.
(9) ACQUISITION COSTS UNDER SECTION 9604(j).—
The costs incurred by the President in acquiring real estate or interests in real estate under
section 9604(j) of this title (relating to acquisition of property).
(10) RESEARCH, DEVELOPMENT, AND DEMONSTRATION COSTS UNDER SECTION 9660.—The
cost of carrying out section 9660 of this title
(relating to research, development, and demonstration), except that the amounts available
for such purposes shall not exceed the
amounts specified in subsection (n) of this section.
(11) LOCAL GOVERNMENT REIMBURSEMENT.—
Reimbursements to local governments under
section 9623 of this title, except that during
the 8-fiscal year period beginning October 1,
1986, not more than 0.1 percent of the total
amount appropriated from the Fund may be
used for such reimbursements.

Page 7701

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(12) WORKER TRAINING AND EDUCATION
GRANTS.—The costs of grants under section
9660a of this title for training and education of
workers to the extent that such costs do not
exceed $20,000,000 for each of the fiscal years
1987, 1988, 1989, 1990, 1991, 1992, 1993, and 1994.
(13) AWARDS UNDER SECTION 9609.—The costs
of any awards granted under section 9609(d) of
this title.
(14) LEAD POISONING STUDY.—The cost of carrying out the study under subsection (f) of section 118 of the Superfund Amendments and Reauthorization Act of 1986 (relating to lead poisoning in children).
(d) Additional limitations
(1) No money in the Fund may be used under
subsection (c)(1) and (2) of this section, nor for
the payment of any claim under subsection (b)
of this section, where the injury, destruction, or
loss of natural resources and the release of a
hazardous substance from which such damages
resulted have occurred wholly before December
11, 1980.
(2) No money in the Fund may be used for the
payment of any claim under subsection (b) of
this section where such expenses are associated
with injury or loss resulting from long-term exposure to ambient concentrations of air pollutants from multiple or diffuse sources.
(e) Funding requirements respecting moneys in
Fund; limitation on certain claims; Fund use
outside Federal property boundaries
(1) Claims against or presented to the Fund
shall not be valid or paid in excess of the total
money in the Fund at any one time. Such claims
become valid only when additional money is collected, appropriated, or otherwise added to the
Fund. Should the total claims outstanding at
any time exceed the current balance of the
Fund, the President shall pay such claims, to
the extent authorized under this section, in full
in the order in which they were finally determined.
(2) In any fiscal year, 85 percent of the money
credited to the Fund under subchapter II 1 of this
chapter shall be available only for the purposes
specified in paragraphs (1), (2), and (4) of subsection (a) of this section. No money in the Fund
may be used for the payment of any claim under
subsection (a)(3) or subsection (b) of this section
in any fiscal year for which the President determines that all of the Fund is needed for response
to threats to public health from releases or
threatened releases of hazardous substances.
(3) No money in the Fund shall be available for
remedial action, other than actions specified in
subsection (c) of this section, with respect to
federally owned facilities; except that money in
the Fund shall be available for the provision of
alternative water supplies (including the reimbursement of costs incurred by a municipality)
in any case involving groundwater contamination outside the boundaries of a federally owned
facility in which the federally owned facility is
not the only potentially responsible party.
(4) Paragraphs (1) and (4) of subsection (a) of
this section shall in the aggregate be subject to
such amounts as are provided in appropriation
Acts.

§ 9611

(f) Obligation of moneys by Federal officials; obligation of moneys or settlement of claims by
State officials or Indian tribe
The President is authorized to promulgate
regulations designating one or more Federal officials who may obligate money in the Fund in
accordance with this section or portions thereof.
The President is also authorized to delegate authority to obligate money in the Fund or to settle claims to officials of a State or Indian tribe
operating under a contract or cooperative agreement with the Federal Government pursuant to
section 9604(d) of this title.
(g) Notice to potential injured parties by owner
and operator of vessel or facility causing release of substance; rules and regulations
The President shall provide for the promulgation of rules and regulations with respect to the
notice to be provided to potential injured parties by an owner and operator of any vessel, or
facility from which a hazardous substance has
been released. Such rules and regulations shall
consider the scope and form of the notice which
would be appropriate to carry out the purposes
of this subchapter. Upon promulgation of such
rules and regulations, the owner and operator of
any vessel or facility from which a hazardous
substance has been released shall provide notice
in accordance with such rules and regulations.
With respect to releases from public vessels, the
President shall provide such notification as is
appropriate to potential injured parties. Until
the promulgation of such rules and regulations,
the owner and operator of any vessel or facility
from which a hazardous substance has been released shall provide reasonable notice to potential injured parties by publication in local newspapers serving the affected area.
(h) Repealed. Pub. L. 99–499, title I, § 111(c)(2),
Oct. 17, 1986, 100 Stat. 1643
(i) Restoration, etc., of natural resources
Except in a situation requiring action to avoid
an irreversible loss of natural resources or to
prevent or reduce any continuing danger to natural resources or similar need for emergency action, funds may not be used under this chapter
for the restoration, rehabilitation, or replacement or acquisition of the equivalent of any
natural resources until a plan for the use of such
funds for such purposes has been developed and
adopted by affected Federal agencies and the
Governor or Governors of any State having sustained damage to natural resources within its
borders, belonging to, managed by or appertaining to such State, and by the governing
body of any Indian tribe having sustained damage to natural resources belonging to, managed
by, controlled by, or appertaining to such tribe,
or held in trust for the benefit of such tribe, or
belonging to a member of such tribe if such resources are subject to a trust restriction on
alienation, after adequate public notice and opportunity for hearing and consideration of all
public comment.
(j) Use of Post-closure Liability Fund
The President shall use the money in the Postclosure Liability Fund for any of the purposes
specified in subsection (a) of this section with

§ 9611

TITLE 42—THE PUBLIC HEALTH AND WELFARE

respect to a hazardous waste disposal facility for
which liability has transferred to such fund
under section 9607(k) of this title, and, in addition, for payment of any claim or appropriate
request for costs of response, damages, or other
compensation for injury or loss under section
9607 of this title or any other State or Federal
law, resulting from a release of a hazardous substance from such a facility.
(k) Inspector General
In each fiscal year, the Inspector General of
each department, agency, or instrumentality of
the United States which is carrying out any authority of this chapter shall conduct an annual
audit of all payments, obligations, reimbursements, or other uses of the Fund in the prior fiscal year, to assure that the Fund is being properly administered and that claims are being appropriately and expeditiously considered. The
audit shall include an examination of a sample
of agreements with States (in accordance with
the provisions of the Single Audit Act [31 U.S.C.
7501 et seq.]) carrying out response actions under
this subchapter and an examination of remedial
investigations and feasibility studies prepared
for remedial actions. The Inspector General
shall submit to the Congress an annual report
regarding the audit report required under this
subsection. The report shall contain such recommendations as the Inspector General deems
appropriate. Each department, agency, or instrumentality of the United States shall cooperate with its inspector general in carrying out
this subsection.
(l) Foreign claimants
To the extent that the provisions of this chapter permit, a foreign claimant may assert a
claim to the same extent that a United States
claimant may assert a claim if—
(1) the release of a hazardous substance occurred (A) in the navigable waters or (B) in or
on the territorial sea or adjacent shoreline of
a foreign country of which the claimant is a
resident;
(2) the claimant is not otherwise compensated for his loss;
(3) the hazardous substance was released
from a facility or from a vessel located adjacent to or within the navigable waters or was
discharged in connection with activities conducted under the Outer Continental Shelf
Lands Act, as amended (43 U.S.C. 1331 et seq.)
or the Deepwater Port Act of 1974, as amended
(33 U.S.C. 1501 et seq.); and
(4) recovery is authorized by a treaty or an
executive agreement between the United
States and foreign country involved, or if the
Secretary of State, in consultation with the
Attorney General and other appropriate officials, certifies that such country provides a
comparable remedy for United States claimants.
(m) Agency for Toxic Substances and Disease
Registry
There shall be directly available to the Agency for Toxic Substances and Disease Registry to
be used for the purpose of carrying out activities
described in subsection (c)(4) and section 9604(i)
of this title not less than $50,000,000 per fiscal

Page 7702

year for each of fiscal years 1987 and 1988, not
less than $55,000,000 for fiscal year 1989, and not
less than $60,000,000 per fiscal year for each of
fiscal years 1990, 1991, 1992, 1993, and 1994. Any
funds so made available which are not obligated
by the end of the fiscal year in which made
available shall be returned to the Fund.
(n) Limitations on research, development, and
demonstration program
(1) Section 9660(b)
For each of the fiscal years 1987, 1988, 1989,
1990, 1991, 1992, 1993, and 1994, not more than
$20,000,000 of the amounts available in the
Fund may be used for the purposes of carrying
out the applied research, development, and
demonstration program for alternative or innovative technologies and training program
authorized under section 9660(b) of this title
(relating to research, development, and demonstration) other than basic research. Such
amounts shall remain available until expended.
(2) Section 9660(a)
From the amounts available in the Fund,
not more than the following amounts may be
used for the purposes of section 9660(a) of this
title (relating to hazardous substance research, demonstration, and training activities):
(A) For the fiscal year 1987, $3,000,000.
(B) For the fiscal year 1988, $10,000,000.
(C) For the fiscal year 1989, $20,000,000.
(D) For the fiscal year 1990, $30,000,000.
(E) For each of the fiscal years 1991, 1992,
1993, and 1994, $35,000,000.
No more than 10 percent of such amounts shall
be used for training under section 9660(a) of
this title in any fiscal year.
(3) Section 9660(d)
For each of the fiscal years 1987, 1988, 1989,
1990, 1991, 1992, 1993, and 1994, not more than
$5,000,000 of the amounts available in the Fund
may be used for the purposes of section 9660(d)
of this title (relating to university hazardous
substance research centers).
(o) Notification procedures for limitations on
certain payments
Not later than 90 days after October 17, 1986,
the President shall develop and implement procedures to adequately notify, as soon as practicable after a site is included on the National
Priorities List, concerned local and State officials and other concerned persons of the limitations, set forth in subsection (a)(2) of this section, on the payment of claims for necessary response costs incurred with respect to such site.
(p) General revenue share of Superfund
(1) In general
The following sums are authorized to be appropriated, out of any money in the Treasury
not otherwise appropriated, to the Hazardous
Substance Superfund:
(A) For fiscal year 1987, $212,500,000.
(B) For fiscal year 1988, $212,500,000.
(C) For fiscal year 1989, $212,500,000.
(D) For fiscal year 1990, $212,500,000.
(E) For fiscal year 1991, $212,500,000.

Page 7703

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(F) For fiscal year 1992, $212,500,000.
(G) For fiscal year 1993, $212,500,000.
(H) For fiscal year 1994, $212,500,000.
In addition there is authorized to be appropriated to the Hazardous Substance Superfund
for each fiscal year an amount equal to so
much of the aggregate amount authorized to
be appropriated under this subsection (and
paragraph (2) of section 9631(b) 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 under section
9507(b)(2) of title 26 for the prior fiscal year.
(Pub. L. 96–510, title I, § 111, Dec. 11, 1980, 94 Stat.
2788; Pub. L. 99–499, title I, § 111, title II, § 207(d),
Oct. 17, 1986, 100 Stat. 1642, 1706; Pub. L. 101–144,
title III, Nov. 9, 1989, 103 Stat. 857; Pub. L.
101–508, title VI, § 6301, Nov. 5, 1990, 104 Stat.
1388–319.)
Editorial Notes
REFERENCES IN TEXT
Title II of Public Law 99–160 (relating to payment to
the Hazardous Substances Trust Fund), referred to in
subsec. (a), is title II of Pub. L. 99–160, Nov. 25, 1985, 99
Stat. 914. Provisions of title II relating to the Hazardous Substance Response Trust Fund are not classified to the Code. For complete classification of this Act
to the Code, see Tables.
The Intervention on the High Seas Act, referred to in
subsec. (a)(1), is Pub. L. 93–248, Feb. 5, 1974, 88 Stat. 8,
which is classified generally to chapter 28 (§ 1471 et seq.)
of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the Code, see Short
Title note set out under section 1471 of Title 33 and Tables.
Section 1321(c) of title 33, referred to in subsec. (a)(2),
was amended generally by Pub. L. 101–380, title IV,
§ 4201(a), Aug. 18, 1990, 104 Stat. 523, and no longer contains provisions establishing a National Contingency
Plan. However, such provisions are contained in section
1321(d) of Title 33, Navigation and Navigable Waters.
Section 304 of this Act, referred to in subsec. (b), is
section 304 of Pub. L. 96–510, title III, Dec. 11, 1980, 94
Stat. 2809, which enacted section 9654 of this title and
amended section 1364 of Title 33.
Fishery conservation zone, referred to in subsec. (b),
probably means the fishery conservation zone established by section 1811 of Title 16, Conservation, which
as amended generally by Pub. L. 99–659, title I, § 101(b),
Nov. 14, 1986, 100 Stat. 3706, relates to United States
sovereign rights and fishery management authority
over fish within the exclusive economic zone as defined
in section 1802 of Title 16.
This chapter, referred to in subsecs. (c)(5), (i), (k), and
(l), was in the original ‘‘this Act’’, meaning Pub. L.
96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, which is classified principally
to this chapter. For complete classification of this Act
to the Code, see Short Title note set out under section
9601 of this title and Tables.
Subsection (f) of section 118 of the Superfund Amendments and Reauthorization Act of 1986, referred to in
subsec. (c)(14), is section 118(f) of Pub. L. 99–499, title I,
Oct. 17, 1986, 100 Stat. 1657, which is not classified to the
Code.
Subchapter II of this chapter, referred to in subsec.
(e)(2), was in the original ‘‘title II of this Act’’, mean-

§ 9611

ing title II of Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2796,
known as the Hazardous Substance Response Revenue
Act of 1980, which enacted subchapter II of this chapter
and sections 4611, 4612, 4661, 4662, 4681, and 4682 of Title
26, Internal Revenue Code. Sections 221 to 223 and 232 of
Pub. L. 96–510, which were classified to sections 9631 to
9633 and 9641 of this title, comprising subchapter II of
this chapter, were repealed by Pub. L. 99–499, title V,
§§ 514(b), 517(c)(1), Oct. 17, 1986, 100 Stat. 1767, 1774. For
complete classification of title II to the Code, see Short
Title of 1980 Amendment note set out under section 1 of
Title 26 and Tables.
The Single Audit Act, referred to in subsec. (k), probably means the Single Audit Act of 1984, Pub. L. 98–502,
Oct. 19, 1984, 98 Stat. 2327, which enacted chapter 75
(§ 7501 et seq.) of Title 31, Money and Finance, and provisions set out as notes under section 7501 of Title 31.
For complete classification of this Act to the Code, see
Short Title of 1984 Amendment note set out under section 7501 of Title 31 and Tables.
The Outer Continental Shelf Lands Act as amended,
referred to in subsec. (l)(3), is act Aug. 7, 1953, ch. 345,
67 Stat. 462, which is classified generally to subchapter
III (§ 1331 et seq.) of chapter 29 of Title 43, Public Lands.
For complete classification of this Act to the Code, see
Short Title note set out under section 1301 of Title 43
and Tables.
The Deepwater Port Act of 1974, as amended, referred
to in subsec. (l)(3), is Pub. L. 93–627, Jan. 3, 1975, 88 Stat.
2126, which is classified generally to chapter 29 (§ 1501 et
seq.) of Title 33, Navigation and Navigable Waters. For
complete classification of this Act to the Code, see
Short Title note set out under section 1501 of Title 33
and Tables.
Section 9631(b) of this title, referred to in subsec.
(p)(1), was repealed by Pub. L. 99–499, title V, § 517(c)(1),
Oct. 17, 1986, 100 Stat. 1774.
AMENDMENTS
1990—Subsec. (a). Pub. L. 101–508, § 6301(1), inserted
‘‘and not more than $5,100,000,000 for the period commencing October 1, 1991, and ending September 30,
1994,’’ after ‘‘October 17, 1986,’’ in introductory provisions.
Subsec. (c)(11). Pub. L. 101–508, § 6301(2), substituted
‘‘8-fiscal year period’’ for ‘‘5-fiscal-year period’’.
Subsec. (c)(12). Pub. L. 101–508, § 6301(3), substituted
‘‘1991, 1992, 1993, and 1994’’ for ‘‘and 1991’’.
Subsec. (m). Pub. L. 101–508, § 6301(4), substituted
‘‘1990, 1991, 1992, 1993, and 1994’’ for ‘‘1990 and 1991’’.
Subsec. (n)(1). Pub. L. 101–508, § 6301(5), substituted
‘‘1991, 1992, 1993, and 1994’’ for ‘‘and 1991’’.
Subsec. (n)(2)(E). Pub. L. 101–508, § 6301(6), added subpar. (E) and struck out former subpar. (E) which read
as follows: ‘‘For the fiscal year 1991, $35,000,000.’’
Subsec. (n)(3). Pub. L. 101–508, § 6301(7), substituted
‘‘1991, 1992, 1993, and 1994’’ for ‘‘and 1991’’.
Subsec. (p)(1)(F) to (H). Pub. L. 101–508, § 6301(8), added
subpars. (F) to (H).
1989—Subsec. (c)(12). Pub. L. 101–144, which directed
that section 9611(c)(12) of the Superfund Amendments
and Reauthorization Act of 1986 be amended by substituting ‘‘$20,000,000’’ for ‘‘$10,000,000’’, was executed by
making the substitution in subsec. (c)(12) of this section, as the probable intent of Congress because the
Superfund Amendments and Reauthorization Act of
1986, Pub. L. 99–499, does not contain a section 9611, but
section 111(d)(2) of Pub. L. 99–499 enacted subsec. (c)(12)
of this section.
1986—Subsec. (a). Pub. L. 99–499, § 111(a), (b), inserted
heading and ‘‘For the purposes specified in this section
there is authorized to be appropriated from the Hazardous Substance Superfund established under subchapter A of chapter 98 of title 26 not more than
$8,500,000,000 for the 5-year period beginning on October
17, 1986, and such sums shall remain available until expended. The preceding sentence constitutes a specific
authorization for the funds appropriated under title II
of Public Law 99-160 (relating to payment to the Hazardous Substances Trust Fund).’’ in introductory provi-

§ 9612

TITLE 42—THE PUBLIC HEALTH AND WELFARE

sions, substituted ‘‘Payment’’ for ‘‘payment’’ in pars.
(1) to (4), a period for a semicolon in pars. (1) and (2),
and a period for ‘‘; and’’ in par. (3), and added pars. (5)
and (6).
Subsec. (b). Pub. L. 99–499, §§ 111(c)(1), 207(d)(1), designated existing provisions as par. (1), inserted ‘‘, or by
any Indian tribe or by the United States acting on behalf of any Indian tribe for natural resources belonging
to, managed by, controlled by, or appertaining to such
tribe, or held in trust for the benefit of such tribe, or
belonging to a member of such tribe if such resources
are subject to a trust restriction on alienation’’ in par.
(1), and added par. (2).
Subsec. (c). Pub. L. 99–499, §§ 111(d), 207(d)(2), in par.
(1), substituted ‘‘The’’ for ‘‘the’’ and substituted a period for the semicolon at end, in par. (2), substituted
‘‘The’’ for ‘‘the’’, inserted ‘‘or Indian tribe’’ and substituted a period for the semicolon at end, in par. (3),
substituted ‘‘Subject’’ for ‘‘subject’’ and substituted a
period for the semicolon at end, in par. (4), substituted
‘‘Any costs incurred in accordance with subsection (m)
of this section (relating to ATSDR) and section 9604(i)
of this title, including the costs of epidemiologic and
laboratory studies, health assessments, preparation of
toxicologic profiles’’ for ‘‘the costs of epidemiologic
studies’’ and substituted a period for the semicolon at
end, in par. (5), substituted a period for ‘‘; and’’, in
pars. (5) and (6), substituted ‘‘Subject’’ for ‘‘subject’’,
and added pars. (7) to (14).
Subsec. (e)(2). Pub. L. 99–499, § 111(e), inserted at end
‘‘No money in the Fund may be used for the payment
of any claim under subsection (a)(3) or subsection (b) of
this section in any fiscal year for which the President
determines that all of the Fund is needed for response
to threats to public health from releases or threatened
releases of hazardous substances.’’
Subsec. (e)(3). Pub. L. 99–499, § 111(f), inserted before
the period at end ‘‘; except that money in the Fund
shall be available for the provision of alternative water
supplies (including the reimbursement of costs incurred
by a municipality) in any case involving groundwater
contamination outside the boundaries of a federally
owned facility in which the federally owned facility is
not the only potentially responsible party’’.
Subsec. (f). Pub. L. 99–499, § 207(d)(3), inserted ‘‘or Indian tribe’’.
Subsec. (h). Pub. L. 99–499, § 111(c)(2), struck out subsec. (h) which read as follows:
‘‘(1) In accordance with regulations promulgated
under section 9651(c) of this title, damages for injury
to, destruction of, or loss of natural resources resulting
from a release of a hazardous substance, for the purposes of this chapter and section 1321(f)(4) and (5) of
title 33, shall be assessed by Federal officials designated by the President under the national contingency plan published under section 9605 of this title,
and such officials shall act for the President as trustee
under this section and section 1321(f)(5) of title 33.
‘‘(2) Any determination or assessment of damages for
injury to, destruction of, or loss of natural resources
for the purposes of this chapter and section 1321(f)(4)
and (5) of title 33 shall have the force and effect of a rebuttable presumption on behalf of any claimant (including a trustee under section 9607 of this title or a
Federal agency) in any judicial or adjudicatory administrative proceeding under this chapter or section 1321
of title 33.’’
Subsec. (i). Pub. L. 99–499, § 207(d)(4), inserted ‘‘and by
the governing body of any Indian tribe having sustained damage to natural resources belonging to, managed by, controlled by, or appertaining to such tribe, or
held in trust for the benefit of such tribe, or belonging
to a member of such tribe if such resources are subject
to a trust restriction on alienation,’’ after ‘‘State,’’.
Subsec. (k). Pub. L. 99–499, § 111(g), amended subsec.
(k) generally. Prior to amendment, subsec. (k) read as
follows: ‘‘The Inspector General of each department or
agency to which responsibility to obligate money in
the Fund is delegated shall provide an audit review
team to audit all payments, obligations, reimburse-

Page 7704

ments, or other uses of the Fund, to assure that the
Fund is being properly administered and that claims
are being appropriately and expeditiously considered.
Each such Inspector General shall submit to the Congress an interim report one year after the establishment of the Fund and a final report two years after the
establishment of the Fund. Each such Inspector General shall thereafter provide such auditing of the Fund
as is appropriate. Each Federal agency shall cooperate
with the Inspector General in carrying out this subsection.’’
Subsecs. (m) to (p). Pub. L. 99–499, § 111(h), (i), added
subsecs. (m) to (p).
Statutory Notes and Related Subsidiaries
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
in subsec. (k) of this section relating to the requirement that the Inspector General submit an annual report to Congress on the audit report required under
subsec. (k), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31,
Money and Finance, and the 7th item on page 151 of
House Document No. 103–7.
SATISFACTION OF SUPERFUND AUDIT REQUIREMENTS BY
INSPECTOR GENERAL OF THE DEPARTMENT OF DEFENSE
Pub. L. 108–375, div. A, title III, § 311, Oct. 28, 2004, 118
Stat. 1842, provided that:
‘‘(a) SATISFACTION OF REQUIREMENTS.—The Inspector
General of the Department of Defense shall be deemed
to be in compliance with the requirements of section
111(k) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C.
9611(k)) if the Inspector General conducts periodic audits of the payments, obligations, reimbursements, and
other uses of the Hazardous Substance Superfund by
the Department of Defense, even if such audits do not
occur on an annual basis.
‘‘(b) REPORTS TO CONGRESS ON AUDITS.—The Inspector
General shall submit to Congress a report on each audit
conducted by the Inspector General as described in subsection (a).’’
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.

§ 9612. Claims procedure
(a) Claims against Fund for response costs
No claim may be asserted against the Fund
pursuant to section 9611(a) of this title unless
such claim is presented in the first instance to
the owner, operator, or guarantor of the vessel
or facility from which a hazardous substance has
been released, if known to the claimant, and to
any other person known to the claimant who
may be liable under section 9607 of this title. In
any case where the claim has not been satisfied
within 60 days of presentation in accordance
with this subsection, the claimant may present
the claim to the Fund for payment. No claim
against the Fund may be approved or certified
during the pendency of an action by the claimant in court to recover costs which are the subject of the claim.
(b) Forms and procedures applicable
(1) Prescribing forms and procedures
The President shall prescribe appropriate
forms and procedures for claims filed here-

Page 7705

TITLE 42—THE PUBLIC HEALTH AND WELFARE

under, which shall include a provision requiring the claimant to make a sworn verification
of the claim to the best of his knowledge. Any
person who knowingly gives or causes to be
given any false information as a part of any
such claim shall, upon conviction, be fined in
accordance with the applicable provisions of
title 18 or imprisoned for not more than 3
years (or not more than 5 years in the case of
a second or subsequent conviction), or both.
(2) Payment or request for hearing
The President may, if satisfied that the information developed during the processing of
the claim warrants it, make and pay an award
of the claim, except that no claim may be
awarded to the extent that a judicial judgment has been made on the costs that are the
subject of the claim. If the President declines
to pay all or part of the claim, the claimant
may, within 30 days after receiving notice of
the President’s decision, request an administrative hearing.
(3) Burden of proof
In any proceeding under this subsection, the
claimant shall bear the burden of proving his
claim.
(4) Decisions
All administrative decisions made hereunder
shall be in writing, with notification to all appropriate parties, and shall be rendered within
90 days of submission of a claim to an administrative law judge, unless all the parties to the
claim agree in writing to an extension or unless the President, in his discretion, extends
the time limit for a period not to exceed sixty
days.
(5) Finality and appeal
All administrative decisions hereunder shall
be final, and any party to the proceeding may
appeal a decision within 30 days of notification
of the award or decision. Any such appeal shall
be made to the Federal district court for the
district where the release or threat of release
took place. In any such appeal, the decision
shall be considered binding and conclusive,
and shall not be overturned except for arbitrary or capricious abuse of discretion.
(6) Payment
Within 20 days after the expiration of the appeal period for any administrative decision
concerning an award, or within 20 days after
the final judicial determination of any appeal
taken pursuant to this subsection, the President shall pay any such award from the Fund.
The President shall determine the method,
terms, and time of payment.
(c) Subrogation rights; actions maintainable
(1) Payment of any claim by the Fund under
this section shall be subject to the United
States Government acquiring by subrogation
the rights of the claimant to recover those costs
of removal or damages for which it has compensated the claimant from the person responsible or liable for such release.
(2) Any person, including the Fund, who pays
compensation pursuant to this chapter to any
claimant for damages or costs resulting from a

§ 9612

release of a hazardous substance shall be subrogated to all rights, claims, and causes of action for such damages and costs of removal that
the claimant has under this chapter or any
other law.
(3) Upon request of the President, the Attorney General shall commence an action on behalf
of the Fund to recover any compensation paid
by the Fund to any claimant pursuant to this
subchapter, and, without regard to any limitation of liability, all interest, administrative and
adjudicative costs, and attorney’s fees incurred
by the Fund by reason of the claim. Such an action may be commenced against any owner, operator, or guarantor, or against any other person who is liable, pursuant to any law, to the
compensated claimant or to the Fund, for the
damages or costs for which compensation was
paid.
(d) Statute of limitations
(1) Claims for recovery of costs
No claim may be presented under this section for recovery of the costs referred to in
section 9607(a) of this title after the date 6
years after the date of completion of all response action.
(2) Claims for recovery of damages
No claim may be presented under this section for recovery of the damages referred to in
section 9607(a) of this title unless the claim is
presented within 3 years after the later of the
following:
(A) The date of the discovery of the loss
and its connection with the release in question.
(B) The date on which final regulations are
promulgated under section 9651(c) of this
title.
(3) Minors and incompetents
The time limitations contained herein shall
not begin to run—
(A) against a minor until the earlier of the
date when such minor reaches 18 years of age
or the date on which a legal representative
is duly appointed for the minor, or
(B) against an incompetent person until
the earlier of the date on which such person’s incompetency ends or the date on
which a legal representative is duly appointed for such incompetent person.
(e) Other statutory or common law claims not
waived, etc.
Regardless of any State statutory or common
law to the contrary, no person who asserts a
claim against the Fund pursuant to this subchapter shall be deemed or held to have waived
any other claim not covered or assertable
against the Fund under this subchapter arising
from the same incident, transaction, or set of
circumstances, nor to have split a cause of action. Further, no person asserting a claim
against the Fund pursuant to this subchapter
shall as a result of any determination of a question of fact or law made in connection with that
claim be deemed or held to be collaterally estopped from raising such question in connection
with any other claim not covered or assertable
against the Fund under this subchapter arising

§ 9613

TITLE 42—THE PUBLIC HEALTH AND WELFARE

from the same incident, transaction, or set of
circumstances.
(f) Double recovery prohibited
Where the President has paid out of the Fund
for any response costs or any costs specified
under section 9611(c)(1) or (2) of this title, no
other claim may be paid out of the Fund for the
same costs.
(Pub. L. 96–510, title I, § 112, Dec. 11, 1980, 94 Stat.
2792; Pub. L. 99–499, title I, §§ 109(a)(3), 112, Oct.
17, 1986, 100 Stat. 1633, 1646.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsec. (c)(2), was in the
original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, which is classified principally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 9601 of this title
and Tables.
AMENDMENTS
1986—Subsec. (a). Pub. L. 99–499, § 112(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read
as follows: ‘‘All claims which may be asserted against
the Fund pursuant to section 9611 of this title shall be
presented in the first instance to the owner, operator,
or guarantor of the vessel or facility from which a hazardous substance has been released, if known to the
claimant, and to any other person known to the claimant who may be liable under section 9607 of this title.
In any case where the claim has not been satisfied
within sixty days of presentation in accordance with
this subsection, the claimant may elect to commence
an action in court against such owner, operator, guarantor, or other person or to present the claim to the
Fund for payment.’’
Subsec. (b)(1). Pub. L. 99–499, § 112(b), added heading.
Pub. L. 99–499, § 109(a)(3), substituted ‘‘in accordance
with the applicable provisions of title 18 or imprisoned
for not more than 3 years (or not more than 5 years in
the case of a second or subsequent conviction), or both’’
for ‘‘up to $5,000 or imprisoned for not more than one
year, or both’’.
Subsec. (b)(2) to (6). Pub. L. 99–499, § 112(b), added
pars. (2) to (6) and struck out former pars. (2) to (4)
which related to the settlement and arbitration of
claims against liable persons and against the Fund.
Subsec. (d). Pub. L. 99–499, § 112(c), amended subsec.
(d) generally. Prior to amendment, subsec. (d) read as
follows: ‘‘No claim may be presented, nor may an action be commenced for damages under this subchapter,
unless that claim is presented or action commenced
within three years from the date of the discovery of the
loss or December 11, 1980, whichever is later: Provided,
however, That the time limitations contained herein
shall not begin to run against a minor until he reaches
eighteen years of age or a legal representative is duly
appointed for him, nor against an incompetent person
until his incompetency ends or a legal representative is
duly appointed for him.’’
Subsec. (f). Pub. L. 99–499, § 112(d), added subsec. (f).
Statutory Notes and Related Subsidiaries
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.

Page 7706

§ 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 only in the Circuit Court of
Appeals of the United States for the District of
Columbia. Any such application shall be made
within ninety days from the date of promulgation of such regulations. Any matter with respect to which review could have been obtained
under this subsection shall not be subject to judicial review in any civil or criminal proceeding
for enforcement or to obtain damages or recovery of response costs.
(b) Jurisdiction; venue
Except as provided in subsections (a) and (h) of
this section, the United States district courts
shall have exclusive original jurisdiction over
all controversies arising under this chapter,
without regard to the citizenship of the parties
or the amount in controversy. Venue shall lie in
any district in which the release or damages occurred, or in which the defendant resides, may
be found, or has his principal office. For the purposes of this section, the Fund shall reside in
the District of Columbia.
(c) Controversies or other matters resulting from
tax collection or tax regulation review
The provisions of subsections (a) and (b) of
this section shall not apply to any controversy
or other matter resulting from the assessment
of collection of any tax, as provided by subchapter II 1 of this chapter, or to the review of
any regulation promulgated under title 26.
(d) Litigation commenced prior to December 11,
1980
No provision of this chapter shall be deemed
or held to moot any litigation concerning any
release of any hazardous substance, or any damages associated therewith, commenced prior to
December 11, 1980.
(e) Nationwide service of process
In any action by the United States under this
chapter, process may be served in any district
where the defendant is found, resides, transacts
business, or has appointed an agent for the service of process.
(f) Contribution
(1) Contribution
Any person may seek contribution from any
other person who is liable or potentially liable
under section 9607(a) of this title, during or
following any civil action under section 9606 of
this title or under section 9607(a) of this title.
Such claims shall be brought in accordance
with this section and the Federal Rules of
Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the
court may allocate response costs among liable parties using such equitable factors as the
court determines are appropriate. Nothing in
this subsection shall diminish the right of any
1 See References in Text note below.

Page 7707

TITLE 42—THE PUBLIC HEALTH AND WELFARE

person to bring an action for contribution in
the absence of a civil action under section 9606
of this title or section 9607 of this title.
(2) Settlement
A person who has resolved its liability to the
United States or a State in an administrative
or judicially approved settlement shall not be
liable for claims for contribution regarding
matters addressed in the settlement. Such settlement does not discharge any of the other
potentially liable persons unless its terms so
provide, but it reduces the potential liability
of the others by the amount of the settlement.
(3) Persons not party to settlement
(A) If the United States or a State has obtained less than complete relief from a person
who has resolved its liability to the United
States or the State in an administrative or judicially approved settlement, the United
States or the State may bring an action
against any person who has not so resolved its
liability.
(B) A person who has resolved its liability to
the United States or a State for some or all of
a response action or for some or all of the
costs of such action in an administrative or
judicially approved settlement may seek contribution from any person who is not party to
a settlement referred to in paragraph (2).
(C) In any action under this paragraph, the
rights of any person who has resolved its liability to the United States or a State shall be
subordinate to the rights of the United States
or the State. Any contribution action brought
under this paragraph shall be governed by Federal law.
(g) Period in which action may be brought
(1) Actions for natural resource damages
Except as provided in paragraphs (3) and (4),
no action may be commenced for damages (as
defined in section 9601(6) of this title) under
this chapter, unless that action is commenced
within 3 years after the later of the following:
(A) The date of the discovery of the loss
and its connection with the release in question.
(B) The date on which regulations are promulgated under section 9651(c) of this title.
With respect to any facility listed on the National Priorities List (NPL), any Federal facility identified under section 9620 of this title
(relating to Federal facilities), or any vessel or
facility at which a remedial action under this
chapter is otherwise scheduled, an action for
damages under this chapter must be commenced within 3 years after the completion of
the remedial action (excluding operation and
maintenance activities) in lieu of the dates referred to in subparagraph (A) or (B). In no
event may an action for damages under this
chapter with respect to such a vessel or facility be commenced (i) prior to 60 days after the
Federal or State natural resource trustee provides to the President and the potentially responsible party a notice of intent to file suit,
or (ii) before selection of the remedial action
if the President is diligently proceeding with a
remedial investigation and feasibility study

§ 9613

under section 9604(b) of this title or section
9620 of this title (relating to Federal facilities). The limitation in the preceding sentence
on commencing an action before giving notice
or before selection of the remedial action does
not apply to actions filed on or before October
17, 1986.
(2) Actions for recovery of costs
An initial action for recovery of the costs referred to in section 9607 of this title must be
commenced—
(A) for a removal action, within 3 years
after completion of the removal action, except that such cost recovery action must be
brought within 6 years after a determination
to grant a waiver under section 9604(c)(1)(C)
of this title for continued response action;
and
(B) for a remedial action, within 6 years
after initiation of physical on-site construction of the remedial action, except that, if
the remedial action is initiated within 3
years after the completion of the removal
action, costs incurred in the removal action
may be recovered in the cost recovery action
brought under this subparagraph.
In any such action described in this subsection, the court shall enter a declaratory
judgment on liability for response costs or
damages that will be binding on any subsequent action or actions to recover further response costs or damages. A subsequent action
or actions under section 9607 of this title for
further response costs at the vessel or facility
may be maintained at any time during the response action, but must be commenced no
later than 3 years after the date of completion
of all response action. Except as otherwise
provided in this paragraph, an action may be
commenced under section 9607 of this title for
recovery of costs at any time after such costs
have been incurred.
(3) Contribution
No action for contribution for any response
costs or damages may be commenced more
than 3 years after—
(A) the date of judgment in any action
under this chapter for recovery of such costs
or damages, or
(B) the date of an administrative order
under section 9622(g) of this title (relating to
de minimis settlements) or 9622(h) of this
title (relating to cost recovery settlements)
or entry of a judicially approved settlement
with respect to such costs or damages.
(4) Subrogation
No action based on rights subrogated pursuant to this section by reason of payment of a
claim may be commenced under this subchapter more than 3 years after the date of
payment of such claim.
(5) Actions to recover indemnification payments
Notwithstanding any other provision of this
subsection, where a payment pursuant to an
indemnification agreement with a response action contractor is made under section 9619 of
this title, an action under section 9607 of this

§ 9613

TITLE 42—THE PUBLIC HEALTH AND WELFARE

title for recovery of such indemnification payment from a potentially responsible party
may be brought at any time before the expiration of 3 years from the date on which such
payment is made.
(6) Minors and incompetents
The time limitations contained herein shall
not begin to run—
(A) against a minor until the earlier of the
date when such minor reaches 18 years of age
or the date on which a legal representative
is duly appointed for such minor, or
(B) against an incompetent person until
the earlier of the date on which such
incompetent’s incompetency ends or the
date on which a legal representative is duly
appointed for such incompetent.
(h) Timing of review
No Federal court shall have jurisdiction under
Federal law other than under section 1332 of
title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable
or relevant and appropriate under section 9621 of
this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or
to review any order issued under section 9606(a)
of this title, in any action except one of the following:
(1) An action under section 9607 of this title
to recover response costs or damages or for
contribution.
(2) An action to enforce an order issued
under section 9606(a) of this title or to recover
a penalty for violation of such order.
(3) An action for reimbursement under section 9606(b)(2) of this title.
(4) An action under section 9659 of this title
(relating to citizens suits) alleging that the removal or remedial action taken under section
9604 of this title or secured under section 9606
of this title was in violation of any requirement of this chapter. Such an action may not
be brought with regard to a removal where a
remedial action is to be undertaken at the
site.
(5) An action under section 9606 of this title
in which the United States has moved to compel a remedial action.
(i) Intervention
In any action commenced under this chapter
or under the Solid Waste Disposal Act [42 U.S.C.
6901 et seq.] in a court of the United States, any
person may intervene as a matter of right when
such person claims an interest relating to the
subject of the action and is so situated that the
disposition of the action may, as a practical
matter, impair or impede the person’s ability to
protect that interest, unless the President or
the State shows that the person’s interest is
adequately represented by existing parties.
(j) Judicial review
(1) Limitation
In any judicial action under this chapter, judicial review of any issues concerning the adequacy of any response action taken or ordered
by the President shall be limited to the administrative record. Otherwise applicable

Page 7708

principles of administrative law shall govern
whether any supplemental materials may be
considered by the court.
(2) Standard
In considering objections raised in any judicial action under this chapter, the court shall
uphold the President’s decision in selecting
the response action unless the objecting party
can demonstrate, on the administrative
record, that the decision was arbitrary and capricious or otherwise not in accordance with
law.
(3) Remedy
If the court finds that the selection of the
response action was arbitrary and capricious
or otherwise not in accordance with law, the
court shall award (A) only the response costs
or damages that are not inconsistent with the
national contingency plan, and (B) such other
relief as is consistent with the National Contingency Plan.
(4) Procedural errors
In reviewing alleged procedural errors, the
court may disallow costs or damages only if
the errors were so serious and related to matters of such central relevance to the action
that the action would have been significantly
changed had such errors not been made.
(k) Administrative record and participation procedures
(1) Administrative record
The President shall establish an administrative record upon which the President shall
base the selection of a response action. The
administrative record shall be available to the
public at or near the facility at issue. The
President also may place duplicates of the administrative record at any other location.
(2) Participation procedures
(A) Removal action
The President shall promulgate regulations in accordance with chapter 5 of title 5
establishing procedures for the appropriate
participation of interested persons in the development of the administrative record on
which the President will base the selection
of removal actions and on which judicial review of removal actions will be based.
(B) Remedial action
The President shall provide for the participation of interested persons, including potentially responsible parties, in the development of the administrative record on which
the President will base the selection of remedial actions and on which judicial review
of remedial actions will be based. The procedures developed under this subparagraph
shall include, at a minimum, each of the following:
(i) Notice to potentially affected persons
and the public, which shall be accompanied by a brief analysis of the plan and
alternative plans that were considered.
(ii) A reasonable opportunity to comment and provide information regarding
the plan.

Page 7709

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(iii) An opportunity for a public meeting
in the affected area, in accordance with
section 9617(a)(2) of this title (relating to
public participation).
(iv) A response to each of the significant
comments, criticisms, and new data submitted in written or oral presentations.
(v) A statement of the basis and purpose
of the selected action.
For purposes of this subparagraph, the administrative record shall include all items
developed and received under this subparagraph and all items described in the second
sentence of section 9617(d) of this title. The
President shall promulgate regulations in
accordance with chapter 5 of title 5 to carry
out the requirements of this subparagraph.
(C) Interim record
Until such regulations under subparagraphs (A) and (B) are promulgated, the administrative record shall consist of all items
developed and received pursuant to current
procedures for selection of the response action, including procedures for the participation of interested parties and the public. The
development of an administrative record and
the selection of response action under this
chapter shall not include an adjudicatory
hearing.
(D) Potentially responsible parties
The President shall make reasonable efforts to identify and notify potentially responsible parties as early as possible before
selection of a response action. Nothing in
this paragraph shall be construed to be a defense to liability.
(l) Notice of actions
Whenever any action is brought under this
chapter in a court of the United States by a
plaintiff other than the United States, the plaintiff shall provide a copy of the complaint to the
Attorney General of the United States and to
the Administrator of the Environmental Protection Agency.
(Pub. L. 96–510, title I, § 113, Dec. 11, 1980, 94 Stat.
2795; Pub. L. 99–499, title I, § 113, Oct. 17, 1986, 100
Stat. 1647; Pub. L. 99–514, § 2, Oct. 22, 1986, 100
Stat. 2095.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2767, known as the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
which is classified principally to this chapter. For complete classification of this Act to the Code, see Short
Title note set out under section 9601 of this title and
Tables.
Subchapter II of this chapter, referred to in subsec.
(c), was in the original ‘‘title II of this Act’’, meaning
title II of Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2796,
known as the Hazardous Substance Response Revenue
Act of 1980, which enacted subchapter II of this chapter
and sections 4611, 4612, 4661, 4662, 4681, and 4682 of Title
26, Internal Revenue Code. Sections 221 to 223 and 232 of
Pub. L. 96–510, which were classified to sections 9631 to
9633 and 9641 of this title, comprising subchapter II of
this chapter, were repealed by Pub. L. 99–499, title V,

§ 9614

§§ 514(b), 517(c)(1), Oct. 17, 1986, 100 Stat. 1767, 1774. For
complete classification of title II to the Code, see Short
Title of 1980 Amendment note set out under section 1 of
Title 26 and Tables.
The Federal Rules of Civil Procedure, referred to in
subsec. (f)(1), are set out in the Appendix to Title 28,
Judiciary and Judicial Procedure.
The Solid Waste Disposal Act, referred to in subsec.
(i), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997,
as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976,
90 Stat. 2795, which is classified generally to chapter 82
(§ 6901 et seq.) of this title. For complete classification
of this Act to the Code, see Short Title note set out
under section 6901 of this title and Tables.
AMENDMENTS
1986—Subsec. (b). Pub. L. 99–499, § 113(c)(1), substituted ‘‘subsections (a) and (h)’’ for ‘‘subsection (a)’’.
Subsec. (c). Pub. L. 99–514 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue Code of 1954’’,
which for purposes of codification was translated as
‘‘title 26’’ thus requiring no change in text.
Subsecs. (e) to (l). Pub. L. 99–499, § 113(a), (b), (c)(2),
added subsecs. (e) to (l).

§ 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 from imposing any additional liability or requirements
with respect to the release of hazardous substances within such State.
(b) Recovery under other State or Federal law of
compensation for removal costs or damages,
or payment of claims
Any person who receives compensation for removal costs or damages or claims pursuant to
this chapter shall be precluded from recovering
compensation for the same removal costs or
damages or claims pursuant to any other State
or Federal law. Any person who receives compensation for removal costs or damages or
claims pursuant to any other Federal or State
law shall be precluded from receiving compensation for the same removal costs or damages or
claims as provided in this chapter.
(c) Recycled oil
(1) Service station dealers, etc.
No person (including the United States or
any State) may recover, under the authority
of subsection (a)(3) or (a)(4) of section 9607 of
this title, from a service station dealer for any
response costs or damages resulting from a release or threatened release of recycled oil, or
use the authority of section 9606 of this title
against a service station dealer other than a
person described in subsection (a)(1) or (a)(2) of
section 9607 of this title, if such recycled oil—
(A) is not mixed with any other hazardous
substance, and
(B) is stored, treated, transported, or otherwise managed in compliance with regulations or standards promulgated pursuant to
section 3014 of the Solid Waste Disposal Act
[42 U.S.C. 6935] and other applicable authorities.
Nothing in this paragraph shall affect or modify in any way the obligations or liability of
any person under any other provision of State

§ 9615

TITLE 42—THE PUBLIC HEALTH AND WELFARE

or Federal law, including common law, for
damages, injury, or loss resulting from a release or threatened release of any hazardous
substance or for removal or remedial action or
the costs of removal or remedial action.
(2) Presumption
Solely for the purposes of this subsection, a
service station dealer may presume that a
small quantity of used oil is not mixed with
other hazardous substances if it—
(A) has been removed from the engine of a
light duty motor vehicle or household appliances by the owner of such vehicle or appliances, and
(B) is presented, by such owner, to the
dealer for collection, accumulation, and delivery to an oil recycling facility.
(3) Definition
For purposes of this subsection, the terms
‘‘used oil’’ and ‘‘recycled oil’’ have the same
meanings as set forth in sections 1004(36) and
1004(37) of the Solid Waste Disposal Act [42
U.S.C. 6903(36), (37)] and regulations promulgated pursuant to that Act [42 U.S.C. 6901 et
seq.].
(4) Effective date
The effective date of paragraphs (1) and (2) of
this subsection shall be the effective date of
regulations or standards promulgated under
section 3014 of the Solid Waste Disposal Act
[42 U.S.C. 6935] that include, among other provisions, a requirement to conduct corrective
action to respond to any releases of recycled
oil under subtitle C or subtitle I of such Act
[42 U.S.C. 6921 et seq., 6991 et seq.].
(d) Financial responsibility of owner or operator
of vessel or facility under State or local law,
rule, or regulation
Except as provided in this subchapter, no
owner or operator of a vessel or facility who establishes and maintains evidence of financial responsibility in accordance with this subchapter
shall be required under any State or local law,
rule, or regulation to establish or maintain any
other evidence of financial responsibility in connection with liability for the release of a hazardous substance from such vessel or facility.
Evidence of compliance with the financial responsibility requirements of this subchapter
shall be accepted by a State in lieu of any other
requirement of financial responsibility imposed
by such State in connection with liability for
the release of a hazardous substance from such
vessel or facility.
(Pub. L. 96–510, title I, § 114, Dec. 11, 1980, 94 Stat.
2795; Pub. L. 99–499, title I, § 114(a), Oct. 17, 1986,
100 Stat. 1652.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a) and (b), was
in the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec.
11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code,
see Short Title note set out under section 9601 of this
title and Tables.

Page 7710

The Solid Waste Disposal Act, referred to in subsec.
(c)(3), (4), is title II of Pub. L. 89–272, Oct. 20, 1965, 79
Stat. 997, as amended generally by Pub. L. 94–580, § 2,
Oct. 21, 1976, 90 Stat. 2795, which is classified generally
to chapter 82 (§ 6901 et seq.) of this title. Subtitles C and
I of the Solid Waste Disposal Act are classified generally to subchapters III (§ 6921 et seq.) and IX (§ 6991 et
seq.), respectively, of chapter 82 of this title. For complete classification of this Act to the Code, see Short
Title note set out under section 6901 of this title and
Tables.
AMENDMENTS
1986—Subsec. (c). Pub. L. 99–499 amended subsec. (c)
generally. Prior to amendment, subsec. (c) read as follows: ‘‘Except as provided in this chapter, no person
may be required to contribute to any fund, the purpose
of which is to pay compensation for claims for any
costs of response or damages or claims which may be
compensated under this subchapter. Nothing in this
section shall preclude any State from using general
revenues for such a fund, or from imposing a tax or fee
upon any person or upon any substance in order to finance the purchase or prepositioning of hazardous substance response equipment or other preparations for
the response to a release of hazardous substances which
affects such State.’’

§ 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.
(Pub. L. 96–510, title I, § 115, Dec. 11, 1980, 94 Stat.
2796.)
Executive Documents
EX. ORD. NO. 12580. SUPERFUND IMPLEMENTATION
Ex. Ord. No. 12580, Jan. 23, 1987, 52 F.R. 2923, as
amended by Ex. Ord. No. 12777, § 1(a), Oct. 18, 1991, 56
F.R. 54757; Ex. Ord. No. 13016, Aug. 28, 1996, 61 F.R. 45871;
Ex. Ord. No. 13286, § 43, Feb. 28, 2003, 68 F.R. 10627; Ex.
Ord. No. 13308, June 20, 2003, 68 F.R. 37691, provided:
By the authority vested in me as President of the
United States of America by Section 115 of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. 9615 et
seq.) (‘‘the Act’’), and by Section 301 of Title 3 of the
United States Code, it is hereby ordered as follows:
SECTION 1. National Contingency Plan. (a)(1) The National Contingency Plan (‘‘the NCP’’), shall provide for
a National Response Team (‘‘the NRT’’) composed of
representatives of appropriate Federal departments and
agencies for national planning and coordination of preparedness and response actions, and Regional Response
Teams as the regional counterparts to the NRT for
planning and coordination of regional preparedness and
response actions.
(2) The following agencies (in addition to other appropriate agencies) shall provide representatives to the
National and Regional Response Teams to carry out
their responsibilities under the NCP: Department of
State, Department of Defense, Department of Justice,
Department of the Interior, Department of Agriculture,
Department of Commerce, Department of Labor, Department of Health and Human Services, Department
of Transportation, Department of Energy, Department
of Homeland Security, Environmental Protection
Agency,, [sic] United States Coast Guard, and the Nuclear Regulatory Commission.
(3) Except for periods of activation because of response action, the representative of the Environmental
Protection Agency (‘‘EPA’’) shall be the chairman, and

Page 7711

TITLE 42—THE PUBLIC HEALTH AND WELFARE

the representative of the United States Coast Guard
shall be the vice chairman, of the NRT and these agencies’ representatives shall be co-chairs of the Regional
Response Teams (‘‘the RRTs’’). When the NRT or an
RRT is activated for a response action, the EPA representative shall be the chairman when the release or
threatened release or discharge or threatened discharge
occurs in the inland zone, and the United States Coast
Guard representative shall be the chairman when the
release or threatened release or discharge or threatened discharge occurs in the coastal zone, unless otherwise agreed upon by the EPA and the United States
Coast Guard representatives (inland and coastal zones
are defined in the NCP).
(4) The RRTs may include representatives from State
governments, local governments (as agreed upon by the
States), and Indian tribal governments. Subject to the
functions and authorities delegated to Executive departments and agencies in other sections of this order,
the NRT shall provide policy and program direction to
the RRTs.
(b)(1) The responsibility for the revision of the NCP
and all the other functions vested in the President by
Sections 105(a), (b), (c), (g) and (h), 125, and 301(f) of the
Act [42 U.S.C. 9605(a), (b), (c), (g), (h), 9625, 9651(f)], by
Section 311(d)(1) of the Federal Water Pollution Control
Act [33 U.S.C. 1321(d)(1)], and by Section 4201(c) of the
Oil Pollution Act of 1990 [Pub. L. 101–380, 33 U.S.C. 1321
note] is delegated to the Administrator of the Environmental Protection Agency (‘‘the Administrator’’).
(2) The function vested in the President by Section
118(p) of the Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99–499) (‘‘SARA’’) [100 Stat.
1662] is delegated to the Administrator.
(c) In accord with Section 107(f)(2)(A) of the Act [42
U.S.C. 9607(f)(2)(A)], Section 311(f)(5) of the Federal
Water Pollution Control Act, as amended (33 U.S.C.
1321(f)(5)), and Section 1006(b)(1) and (2) of the Oil Pollution Act of 1990 [33 U.S.C. 2706(b)(1), (2)], the following
shall be among those designated in the NCP as Federal
trustees for natural resources:
(1) Secretary of Defense;
(2) Secretary of the Interior;
(3) Secretary of Agriculture;
(4) Secretary of Commerce;
(5) Secretary of Energy.
In the event of a spill, the above named Federal
trustees for natural resources shall designate one trustee to act as Lead Administrative Trustee, the duties of
which shall be defined in the regulations promulgated
pursuant to Section 1006(e)(1) of OPA. If there are natural resource trustees other than those designated
above which are acting in the event of a spill, those
other trustees may join with the Federal trustees to
name a Lead Administrative Trustee which shall exercise the duties defined in the regulations promulgated
pursuant to Section 1006(e)(1) of OPA.
(d) Revisions to the NCP shall be made in consultation with members of the NRT prior to publication for
notice and comment.
(e) All revisions to the NCP, whether in proposed or
final form, shall be subject to review and approval by
the Director of the Office of Management and Budget
(‘‘OMB’’).
SEC. 2. Response and Related Authorities. (a) The functions vested in the President by the first sentence of
Section 104(b)(1) of the Act [42 U.S.C. 9604(b)(1)] relating
to ‘‘illness, disease, or complaints thereof’’ are delegated to the Secretary of Health and Human Services
who shall, in accord with Section 104(i) of the Act, perform those functions through the Public Health Service.
(b) The functions vested in the President by Sections
104(e)(7)(C), 113(k)(2), 119(c)(7), and 121(f)(1) of the Act
[42 U.S.C. 9604(e)(7)(C), 9613(k)(2), 9619(c)(7), 9621(f)(1)],
relating to promulgation of regulations and guidelines,
are delegated to the Administrator, to be exercised in
consultation with the NRT.
(c)(1) The functions vested in the President by Sections 104(a) and the second sentence of 126(b) of the Act

§ 9615

[42 U.S.C. 9604(a), 9626(b)], to the extent they require
permanent relocation of residents, businesses, and community facilities or temporary evacuation and housing
of threatened individuals not otherwise provided for,
are delegated to the Director of the Federal Emergency
Management Agency.
(2) Subject to subsection (b) of this Section, the functions vested in the President by Sections 117(a) and (c),
and 119 of the Act [42 U.S.C. 9617(a), (c), 9619], to the extent such authority is needed to carry out the functions delegated under paragraph (1) of this subsection,
are delegated to the Director of the Federal Emergency
Management Agency.
(d) Subject to subsections (a), (b) and (c) of this Section, the functions vested in the President by Sections
104(a), (b) and (c)(4), 113(k), 117(a) and (c), 119, and 121 of
the Act [42 U.S.C. 9604(a), (b), (c)(4), 9613(k), 9617(a), (c),
9619, 9621] are delegated to the Secretaries of Defense
and Energy, with respect to releases or threatened releases where either the release is on or the sole source
of the release is from any facility or vessel under the
jurisdiction, custody or control of their departments,
respectively, including vessels bare-boat chartered and
operated. These functions must be exercised consistent
with the requirements of Section 120 of the Act [42
U.S.C. 9620].
(e)(1) Subject to subsections (a), (b), (c), and (d) of
this Section, the functions vested in the President by
Sections 104(a), (b), and (c)(4), and 121 of the Act [42
U.S.C. 9604(a), (b), (c)(4), 9621] are delegated to the
heads of Executive departments and agencies, with respect to remedial actions for releases or threatened releases which are not on the National Priorities List
(‘‘the NPL’’) and removal actions other than emergencies, where either the release is on or the sole
source of the release is from any facility or vessel
under the jurisdiction, custody or control of those departments and agencies, including vessels bare-boat
chartered and operated. The Administrator shall define
the term ‘‘emergency’’, solely for the purposes of this
subsection, either by regulation or by a memorandum
of understanding with the head of an Executive department or agency.
(2) Subject to subsections (b), (c), and (d) of this Section, the functions vested in the President by Sections
104(b)(2), 113(k), 117(a) and (c), and 119 of the Act [42
U.S.C. 9604(b)(2), 9613(k), 9617(a), (c), 9619] are delegated
to the heads of Executive departments and agencies,
with respect to releases or threatened releases where
either the release is on or the sole source of the release
is from any facility or vessel under the jurisdiction,
custody or control of those departments and agencies,
including vessels bare-boat chartered and operated.
(f) Subject to subsections (a), (b), (c), (d), and (e) of
this Section, the functions vested in the President by
Sections 104(a), (b) and (c)(4), 113(k), 117(a) and (c), 119,
and 121 of the Act [42 U.S.C. 9604(a), (b), (c)(4), 9613(k),
9617(a), (c), 9619, 9621] are delegated to the Secretary of
the Department in which the Coast Guard is operating
(‘‘the Coast Guard’’), with respect to any release or
threatened release involving the coastal zone, Great
Lakes waters, ports, and harbors.
(g) Subject to subsections (a), (b), (c), (d), (e), and (f)
of this Section, the functions vested in the President
by Sections 101(24), 104(a), (b), (c)(4) and (c)(9), 113(k),
117(a) and (c), 119, 121, and 126(b) of the Act [42 U.S.C.
9601(24), 9604(a), (b), (c)(4), (9), 9613(k), 9617(a), (c), 9619,
9621, 9626(b)] are delegated to the Administrator. The
Administrator’s authority under Section 119 of the Act
is retroactive to the date of enactment of SARA [Oct.
17, 1986].
(h) The functions vested in the President by Section
104(c)(3) of the Act [42 U.S.C. 9604(c)(3)] are delegated to
the Administrator, with respect to providing assurances for Indian tribes, to be exercised in consultation
with the Secretary of the Interior.
(i) Subject to subsections (d), (e), (f), (g) and (h) of
this Section, the functions vested in the President by
Section 104(c) and (d) of the Act are delegated to the
Coast Guard, the Secretary of Health and Human Serv-

§ 9615

TITLE 42—THE PUBLIC HEALTH AND WELFARE

ices, the Director of the Federal Emergency Management Agency, and the Administrator in order to carry
out the functions delegated to them by this Section.
(j)(1) The functions vested in the President by Section 104(e)(5)(A) are delegated to the heads of Executive
departments and agencies, with respect to releases or
threatened releases where either the release is on or
the sole source of the release is from any facility or
vessel under the jurisdiction, custody or control of
those departments and agencies, to be exercised with
the concurrence of the Attorney General.
(2) Subject to subsection (b) of this Section and paragraph (1) of this subsection, the functions vested in the
President by Section 104(e) are delegated to the heads
of Executive departments and agencies in order to
carry out their functions under this Order or the Act.
(k) The functions vested in the President by Section
104(f), (g), (h), (i)(11), and (j) of the Act are delegated to
the heads of Executive departments and agencies in
order to carry out the functions delegated to them by
this Section. The exercise of authority under Section
104(h) of the Act shall be subject to the approval of the
Administrator of the Office of Federal Procurement
Policy.
SEC. 3. Cleanup Schedules. (a) The functions vested in
the President by Sections 116(a) and the first two sentences of 105(d) of the Act [42 U.S.C. 9616(a), 9605(d)] are
delegated to the heads of Executive departments and
agencies with respect to facilities under the jurisdiction, custody or control of those departments and agencies.
(b) Subject to subsection (a) of this Section, the functions vested in the President by Sections 116 and 105(d)
are delegated to the Administrator.
SEC. 4. Enforcement. (a) The functions vested in the
President by Sections 109(d) and 122(e)(3)(A) of the Act
[42 U.S.C. 9609(d), 9622(e)(3)(A)], relating to development
of regulations and guidelines, are delegated to the Administrator, to be exercised in consultation with the
Attorney General.
(b)(1) Subject to subsection (a) of this Section, the
functions vested in the President by Section 122 [42
U.S.C. 9622] (except subsection (b)(1)) are delegated to
the heads of Executive departments and agencies, with
respect to releases or threatened releases not on the
NPL where either the release is on or the sole source
of the release is from any facility under the jurisdiction, custody or control of those Executive departments and agencies. These functions may be exercised
only with the concurrence of the Attorney General.
(2) Subject to subsection (a) of this Section, the functions vested in the President by Section 109 of the Act
[42 U.S.C. 9609], relating to violations of Section 122 of
the Act, are delegated to the heads of Executive departments and agencies, with respect to releases or threatened releases not on the NPL where either the release
is on or the sole source of the release is from any facility under the jurisdiction, custody or control of those
Executive departments and agencies. These functions
may be exercised only with the concurrence of the Attorney General.
(c)(1) Subject to subsection[s] (a) and (b)(1) of this
Section, the functions vested in the President by Sections 106(a) and 122 of the Act [42 U.S.C. 9606(a), 9622]
are delegated to the Coast Guard with respect to any
release or threatened release involving the coastal
zone, Great Lakes waters, ports, and harbors.
(2) Subject to subsection[s] (a) and (b)(2) of this Section, the functions vested in the President by Section
109 of the Act [42 U.S.C. 9609], relating to violations of
Sections 103(a) and (b), and 122 of the Act [42 U.S.C.
9603(a), (b), 9622], are delegated to the Coast Guard with
respect to any release or threatened release involving
the coastal zone, Great Lakes waters, ports, and harbors.
(3) Subject to subsections (a) and (b)(1) of this section, the functions vested in the President by sections
106(a) [42 U.S.C. 9606(a)] and 122 [42 U.S.C. 9622] (except
subsection (b)(1)) of the Act are delegated to the Secretary of the Interior, the Secretary of Commerce, the

Page 7712

Secretary of Agriculture, the Secretary of Defense, and
the Secretary of Energy, to be exercised only with the
concurrence of the Coast Guard, with respect to any release or threatened release in the coastal zone, Great
Lakes waters, ports, and harbors, affecting (1) natural
resources under their trusteeship, or (2) a vessel or facility subject to their custody, jurisdiction, or control.
Such authority shall not be exercised at any vessel or
facility at which the Coast Guard is the lead Federal
agency for the conduct or oversight of a response action. Such authority shall not be construed to authorize or permit use of the Hazardous Substance Superfund
to implement section 106 or to fund performance of any
response action in lieu of the payment by a person who
receives but does not comply with an order pursuant to
section 106(a), where such order has been issued by the
Secretary of the Interior, the Secretary of Commerce,
the Secretary of Agriculture, the Secretary of Defense,
or the Secretary of Energy. This subsection shall not
be construed to limit any authority delegated by any
other section of this order. Authority granted under
this subsection shall be exercised in a manner to ensure
interagency coordination that enhances efficiency and
effectiveness.
(d)(1) Subject to subsections (a), (b)(1), and (c)(1) of
this Section, the functions vested in the President by
Sections 106 and 122 of the Act [42 U.S.C. 9606, 9622] are
delegated to the Administrator.
(2) Subject to subsections (a), (b)(2), and (c)(2) of this
Section, the functions vested in the President by Section 109 of the Act [42 U.S.C. 9609], relating to violations of Sections 103 and 122 of the Act [42 U.S.C. 9603,
9622], are delegated to the Administrator.
(3) Subject to subsections (a), (b)(1), and (c)(1) of this
section, the functions vested in the President by sections 106(a) [42 U.S.C. 9606(a)] and 122 [42 U.S.C. 9622]
(except subsection (b)(1)) of the Act are delegated to
the Secretary of the Interior, the Secretary of Commerce, the Secretary of Agriculture, the Secretary of
Defense, and the Department of Energy, to be exercised
only with the concurrence of the Administrator, with
respect to any release or threatened release affecting
(1) natural resources under their trusteeship, or (2) a
vessel or facility subject to their custody, jurisdiction,
or control. Such authority shall not be exercised at any
vessel or facility at which the Administrator is the lead
Federal official for the conduct or oversight of a response action. Such authority shall not be construed to
authorize or permit use of the Hazardous Substance
Superfund to implement section 106 or to fund performance of any response action in lieu of the payment by
a person who receives but does not comply with an
order pursuant to section 106(a), where such order has
been issued by the Secretary of the Interior, the Secretary of Commerce, the Secretary of Agriculture, the
Secretary of Defense, or the Secretary of Energy. This
subsection shall not be construed to limit any authority delegated by any other section of this order. Authority granted under this subsection shall be exercised
in a manner to ensure interagency coordination that
enhances efficiency and effectiveness.
(e) Notwithstanding any other provision of this
Order, the authority under Sections 104(e)(5)(A) and
106(a) of the Act [42 U.S.C. 9604(e)(5)(A), 9606(a)] to seek
information, entry, inspection, samples, or response actions from Executive departments and agencies may be
exercised only with the concurrence of the Attorney
General.
SEC. 5. Liability. (a) The function vested in the President by Section 107(c)(1)(C) of the Act [42 U.S.C.
9607(c)(1)(C)] is delegated to the Secretary of Transportation.
(b) The functions vested in the President by Section
107(c)(3) of the Act are delegated to the Coast Guard
with respect to any release or threatened release involving the coastal zone, Great Lakes waters, ports and
harbors.
(c) Subject to subsection (b) of this Section, the functions vested in the President by Section 107(c)(3) of the
Act are delegated to the Administrator.

Page 7713

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(d) The functions vested in the President by Section
107(f)(1) of the Act are delegated to each of the Federal
trustees for natural resources designated in the NCP
for resources under their trusteeship.
(e) The functions vested in the President by Section
107(f)(2)(B) of the Act, to receive notification of the
state natural resource trustee designations, are delegated to the Administrator.
(f) The functions vested in the President by Section
107(o) and (p) of the Act are delegated to the heads of
the Executive departments and agencies, to be exercised in consultation with the Administrator, with respect to releases or threatened releases where either
the release is on or the sole source of the release is
from any facility under the jurisdiction, custody, or
control of those departments and agencies.
(g) Subject to subsection (f) of this Section, the functions vested in the President by Section 107(o) and (p)
of the Act are delegated to the Administrator except
that, with respect to determinations regarding natural
resource restoration, the Administrator shall make
such determinations in consultation with the appropriate Federal natural resource trustee.
SEC. 6. Litigation. (a) Notwithstanding any other provision of this Order, any representation pursuant to or
under this Order in any judicial proceedings shall be by
or through the Attorney General. The conduct and control of all litigation arising under the Act shall be the
responsibility of the Attorney General.
(b) Notwithstanding any other provision of this
Order, the authority under the Act to require the Attorney General to commence litigation is retained by
the President.
(c) The functions vested in the President by Section
113(g) of the Act [42 U.S.C. 9613(g)], to receive notification of a natural resource trustee’s intent to file suit,
are delegated to the heads of Executive departments
and agencies with respect to response actions for which
they have been delegated authority under Section 2 of
this Order. The Administrator shall promulgate procedural regulations for providing such notification.
(d) The functions vested in the President by Sections
[sic] 310(d) and (e) of the Act [42 U.S.C. 9659(d), (e)], relating to promulgation of regulations, are delegated to
the Administrator.
SEC. 7. Financial Responsibility. (a) The functions vested in the President by Section 107(k)(4)(B) of the Act [42
U.S.C. 9607(k)(4)(B)] are delegated to the Secretary of
the Treasury. The Administrator will provide the Secretary with such technical information and assistance
as the Administrator may have available.
(b)(1) The functions vested in the President by Section 108(a)(1) of the Act [42 U.S.C. 9608(a)(1)] are delegated to the Coast Guard.
(2) Subject to Section 4(a) of this Order, the functions
vested in the President by Section 109 of the Act [42
U.S.C. 9609], relating to violations of Section 108(a)(1) of
the Act, are delegated to the Coast Guard.
(c)(1) The functions vested in the President by Section 108(b) of the Act are delegated to the Secretary of
Transportation with respect to all transportation related facilities, including any pipeline, motor vehicle,
rolling stock, or aircraft.
(2) Subject to Section 4(a) of this Order, the functions
vested in the President by Section 109 of the Act, relating to violations of Section 108(a)(3) of the Act, are delegated to the Secretary of Transportation.
(3) Subject to Section 4(a) of this Order, the functions
vested in the President by Section 109 of the Act, relating to violations of Section 108(b) of the Act, are delegated to the Secretary of Transportation with respect
to all transportation related facilities, including any
pipeline, motor vehicle, rolling stock, or aircraft.
(d)(1) Subject to subsection (c)(1) of this Section, the
functions vested in the President by Section 108(a)(4)
and (b) of the Act are delegated to the Administrator.
(2) Subject to Section 4(a) of this Order and subsection (c)(3) of this Section, the functions vested in
the President by Section 109 of the Act, relating to violations of Section 108(a)(4) and (b) of the Act, are delegated to the Administrator.

§ 9615

SEC. 8. Employee Protection and Notice to Injured. (a)
The functions vested in the President by Section 110(e)
of the Act [42 U.S.C. 9610(e)] are delegated to the Administrator.
(b) The functions vested in the President by Section
111(g) of the Act [42 U.S.C. 9611(g)] are delegated to the
Secretaries of Defense and Energy with respect to releases from facilities or vessels under the jurisdiction,
custody or control of their departments, respectively,
including vessels bare-boat chartered and operated.
(c) Subject to subsection (b) of this Section, the functions vested in the President by Section 111(g) of the
Act are delegated to the Administrator.
SEC. 9. Management of the Hazardous Substance Superfund and Claims. (a) The functions vested in the President by Section 111(a) of the Act [42 U.S.C. 9611(a)] are
delegated to the Administrator, subject to the provisions of this Section and other applicable provisions of
this Order.
(b) The Administrator shall transfer to other agencies, from the Hazardous Substance Superfund out of
sums appropriated, such amounts as the Administrator
may determine necessary to carry out the purposes of
the Act. These amounts shall be consistent with the
President’s Budget, within the total approved by the
Congress, unless a revised amount is approved by OMB.
Funds appropriated specifically for the Agency for
Toxic Substances and Disease Registry (‘‘ATSDR’’),
shall be directly transferred to ATSDR, consistent with
fiscally responsible investment of trust fund money.
(c) The Administrator shall chair a budget task force
composed of representatives of Executive departments
and agencies having responsibilities under this Order or
the Act. The Administrator shall also, as part of the
budget request for the Environmental Protection Agency, submit to OMB a budget for the Hazardous Substance Superfund which is based on recommended levels developed by the budget task force. The Administrator may prescribe reporting and other forms, procedures, and guidelines to be used by the agencies of the
Task Force in preparing the budget request, consistent
with budgetary reporting requirements issued by OMB.
The Administrator shall prescribe forms to agency task
force members for reporting the expenditure of funds
on a site specific basis.
(d) The Administrator and each department and agency head to whom funds are provided pursuant to this
Section, with respect to funds provided to them, are authorized in accordance with Section 111(f) of the Act [42
U.S.C. 9611(f)] to designate Federal officials who may
obligate such funds.
(e) The functions vested in the President by Section
112 of the Act [42 U.S.C. 9612] are delegated to the Administrator for all claims presented pursuant to Section 111 of the Act.
(f) The functions vested in the President by Section
111(o) of the Act are delegated to the Administrator.
(g) The functions vested in the President by Section
117(e) of the Act [42 U.S.C. 9617(e)] are delegated to the
Administrator, to be exercised in consultation with the
Attorney General.
(h) The functions vested in the President by Section
123 of the Act [42 U.S.C. 9623] are delegated to the Administrator.
(i) Funds from the Hazardous Substance Superfund
may be used, at the discretion of the Administrator or
the Coast Guard, to pay for removal actions for releases or threatened releases from facilities or vessels
under the jurisdiction, custody or control of Executive
departments and agencies but must be reimbursed to
the Hazardous Substance Superfund by such Executive
department or agency.
SEC. 10. Federal Facilities. (a) When necessary, prior to
selection of a remedial action by the Administrator
under Section 120(e)(4)(A) of the Act [42 U.S.C.
9620(e)(4)(A)], Executive agencies shall have the opportunity to present their views to the Administrator
after using the procedures under Section 1–6 of Executive Order No. 12088 of October 13, 1978 [set out as a note
under section 4321 of this title], or any other mutually

§ 9616

TITLE 42—THE PUBLIC HEALTH AND WELFARE

acceptable process. Notwithstanding subsection 1–602 of
Executive Order No. 12088, the Director of the Office of
Management and Budget shall facilitate resolution of
any issues.
(b) Executive Order No. 12088 of October 13, 1978, is
amended by renumbering the current Section 1–802 as
Section 1–803 and inserting the following new Section
1–802.
‘‘1–802. Nothing in this Order shall create any right or
benefit, substantive or procedural, enforceable at law
by a party against the United States, its agencies, its
officers, or any person.’’
SEC. 11. General Provisions. (a) The function vested in
the President by Section 101(37) of the Act [42 U.S.C.
9601(37)] is delegated to the Administrator.
(b)(1) The function vested in the President by Section
105(f) of the Act [42 U.S.C. 9605(f)], relating to reporting
on minority participation in contracts, is delegated to
the Administrator.
(2) Subject to paragraph 1 of this subsection, the
functions vested in the President by Section 105(f) of
the Act are delegated to the heads of Executive departments and agencies in order to carry out the functions
delegated to them by this Order. Each Executive department and agency shall provide to the Administrator any requested information on minority contracting for inclusion in the Section 105(f) annual report.
(c) The functions vested in the President by Section
126(c) of the Act [42 U.S.C. 9626(c)] are delegated to the
Administrator, to be exercised in consultation with the
Secretary of the Interior.
(d) The functions vested in the President by Section
301(c) of the Act [42 U.S.C. 9651(c)] are delegated to the
Secretary of the Interior.
(e) Each agency shall have authority to issue such
regulations as may be necessary to carry out the functions delegated to them by this Order.
(f) The performance of any function under this Order
shall be done in consultation with interested Federal
departments and agencies represented on the NRT, as
well as with any other interested Federal agency.
(g) The following functions vested in the President by
the Act which have been delegated or assigned by this
Order may be redelegated to the head of any Executive
department or agency with his consent: functions set
forth in Sections 2 (except subsection (b)), 3, 4(b), 4(c),
4(d), 5(b), 5(c), and 8(c) of this Order.
(h) Executive Order No. 12316 of August 14, 1981, is revoked.
SEC. 12. Brownfields. (a) The functions vested in the
President by Sections 101(39) and (41) and 104(k) of the
Act [42 U.S.C. 9601(39), (41), 9604(k)] are delegated to the
Administrator.
(b) The functions vested in the President by Section
128(b)(1)(B)(ii) of the Act [42 U.S.C. 9628(b)(1)(B)(ii)] are
delegated to the heads of the Executive departments
and agencies, to be exercised in consultation with the
Administrator, with respect to property subject to
their jurisdiction, custody, or control.
(c) The functions vested in the President by Section
128(b)(1)(E) of the Act [42 U.S.C. 9628(b)(1)(E)] are delegated to the heads of Executive departments and agencies in cases where they have acted under subsection
(b) of this Section.
(d) Subject to subsections (b) and (c) of this Section,
the functions vested in the President by Section 128 of
the Act [42 U.S.C. 9628] are delegated to the Administrator.
SEC. 13. Preservation of Authorities. Nothing in this
order shall be construed to impair or otherwise affect
the functions of the Director of the Office of Management and Budget relating to budget, administrative, or
legislative proposals.
SEC. 14. General Provision. This order is intended only
to improve the internal management of the Federal
Government and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the
United States, its departments, agencies, instrumental-

Page 7714

ities, or entities, its officers or employees, or any other
person.

§ 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 that are contained (as of October 17, 1986) on the Comprehensive Environmental Response, Compensation, and Liability
Information System (CERCLIS) including in
each assessment a statement as to whether a
site inspection is necessary and by whom it
should be carried out; and
(2) not later than January 1, 1989, the President shall assure the completion of site inspections at all facilities for which the President has stated a site inspection is necessary
pursuant to paragraph (1).
(b) Evaluation
Within 4 years after October 17, 1986, each facility listed (as of October 17, 1986) in the
CERCLIS shall be evaluated if the President determines that such evaluation is warranted on
the basis of a site inspection or preliminary assessment. The evaluation shall be in accordance
with the criteria established in section 9605 of
this title under the National Contingency Plan
for determining priorities among release for inclusion on the National Priorities List. In the
case of a facility listed in the CERCLIS after October 17, 1986, the facility shall be evaluated
within 4 years after the date of such listing if
the President determines that such evaluation
is warranted on the basis of a site inspection or
preliminary assessment.
(c) Explanations
If any of the goals established by subsection
(a) or (b) are not achieved, the President shall
publish an explanation of why such action could
not be completed by the specified date.
(d) Commencement of RI/FS
The President shall assure that remedial investigations and feasibility studies (RI/FS) are
commenced for facilities listed on the National
Priorities List, in addition to those commenced
prior to October 17, 1986, in accordance with the
following schedule:
(1) not fewer than 275 by the date 36 months
after October 17, 1986, and
(2) if the requirement of paragraph (1) is not
met, not fewer than an additional 175 by the
date 4 years after October 17, 1986, an additional 200 by the date 5 years after October 17,
1986, and a total of 650 by the date 5 years after
October 17, 1986.
(e) Commencement of remedial action
The President shall assure that substantial
and continuous physical on-site remedial action
commences at facilities on the National Priorities List, in addition to those facilities on
which remedial action has commenced prior to
October 17, 1986, at a rate not fewer than:
(1) 175 facilities during the first 36-month period after October 17, 1986; and
(2) 200 additional facilities during the following 24 months after such 36-month period.

Page 7715

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(Pub. L. 96–510, title I, § 116, as added Pub. L.
99–499, title I, § 116, Oct. 17, 1986, 100 Stat. 1653.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsec. (a), was in the
original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, which is classified principally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 9601 of this title
and Tables.

§ 9617. Public participation
(a) Proposed plan
Before adoption of any plan for remedial action to be undertaken by the President, by a
State, or by any other person, under section
9604, 9606, 9620, or 9622 of this title, the President
or State, as appropriate, shall take both of the
following actions:
(1) Publish a notice and brief analysis of the
proposed plan and make such plan available to
the public.
(2) Provide a reasonable opportunity for submission of written and oral comments and an
opportunity for a public meeting at or near
the facility at issue regarding the proposed
plan and regarding any proposed findings
under section 9621(d)(4) of this title (relating
to cleanup standards). The President or the
State shall keep a transcript of the meeting
and make such transcript available to the public.
The notice and analysis published under paragraph (1) shall include sufficient information as
may be necessary to provide a reasonable explanation of the proposed plan and alternative proposals considered.
(b) Final plan
Notice of the final remedial action plan adopted shall be published and the plan shall be made
available to the public before commencement of
any remedial action. Such final plan shall be accompanied by a discussion of any significant
changes (and the reasons for such changes) in
the proposed plan and a response to each of the
significant comments, criticisms, and new data
submitted in written or oral presentations under
subsection (a).
(c) Explanation of differences
After adoption of a final remedial action
plan—
(1) if any remedial action is taken,
(2) if any enforcement action under section
9606 of this title is taken, or
(3) if any settlement or consent decree under
section 9606 of this title or section 9622 of this
title is entered into,
and if such action, settlement, or decree differs
in any significant respects from the final plan,
the President or the State shall publish an explanation of the significant differences and the
reasons such changes were made.
(d) Publication
For the purposes of this section, publication
shall include, at a minimum, publication in a

§ 9619

major local newspaper of general circulation. In
addition, each item developed, received, published, or made available to the public under
this section shall be available for public inspection and copying at or near the facility at issue.
(e) Grants for technical assistance
(1) Authority
Subject to such amounts as are provided in
appropriations Acts and in accordance with
rules promulgated by the President, the President may make grants available to any group
of individuals which may be affected by a release or threatened release at any facility
which is listed on the National Priorities List
under the National Contingency Plan. Such
grants may be used to obtain technical assistance in interpreting information with regard
to the nature of the hazard, remedial investigation and feasibility study, record of decision, remedial design, selection and construction of remedial action, operation and maintenance, or removal action at such facility.
(2) Amount
The amount of any grant under this subsection may not exceed $50,000 for a single
grant recipient. The President may waive the
$50,000 limitation in any case where such waiver is necessary to carry out the purposes of
this subsection. Each grant recipient shall be
required, as a condition of the grant, to contribute at least 20 percent of the total of costs
of the technical assistance for which such
grant is made. The President may waive the 20
percent contribution requirement if the grant
recipient demonstrates financial need and
such waiver is necessary to facilitate public
participation in the selection of remedial action at the facility. Not more than one grant
may be made under this subsection with respect to a single facility, but the grant may be
renewed to facilitate public participation at
all stages of remedial action.
(Pub. L. 96–510, title I, § 117, as added Pub. L.
99–499, title I, § 117, Oct. 17, 1986, 100 Stat. 1654.)
§ 9618. High priority for drinking water supplies
For purposes of taking action under section
9604 or 9606 of this title and listing facilities on
the National Priorities List, the President shall
give a high priority to facilities where the release of hazardous substances or pollutants or
contaminants has resulted in the closing of
drinking water wells or has contaminated a
principal drinking water supply.
(Pub. L. 96–510, title I, § 118, as added Pub. L.
99–499, title I, § 118(a), Oct. 17, 1986, 100 Stat.
1655.)
§ 9619. Response action contractors
(a) Liability of response action contractors
(1) Response action contractors
A person who is a response action contractor
with respect to any release or threatened release of a hazardous substance or pollutant or
contaminant from a vessel or facility shall not
be liable under this subchapter or under any
other Federal law to any person for injuries,

§ 9619

TITLE 42—THE PUBLIC HEALTH AND WELFARE

costs, damages, expenses, or other liability
(including but not limited to claims for indemnification or contribution and claims by third
parties for death, personal injury, illness or
loss of or damage to property or economic
loss) which results from such release or
threatened release.
(2) Negligence, etc.
Paragraph (1) shall not apply in the case of
a release that is caused by conduct of the response action contractor which is negligent,
grossly negligent, or which constitutes intentional misconduct.
(3) Effect on warranties; employer liability
Nothing in this subsection shall affect the liability of any person under any warranty
under Federal, State, or common law. Nothing
in this subsection shall affect the liability of
an employer who is a response action contractor to any employee of such employer
under any provision of law, including any provision of any law relating to worker’s compensation.
(4) Governmental employees
A state employee or an employee of a political subdivision who provides services relating
to response action while acting within the
scope of his authority as a governmental employee shall have the same exemption from liability (subject to the other provisions of this
section) as is provided to the response action
contractor under this section.
(b) Savings provisions
(1) Liability of other persons
The defense provided by section 9607(b)(3) of
this title shall not be available to any potentially responsible party with respect to any
costs or damages caused by any act or omission of a response action contractor. Except as
provided in subsection (a)(4) and the preceding
sentence, nothing in this section shall affect
the liability under this chapter or under any
other Federal or State law of any person,
other than a response action contractor.
(2) Burden of plaintiff
Nothing in this section shall affect the
plaintiff’s burden of establishing liability
under this subchapter.
(c) Indemnification
(1) In general
The President may agree to hold harmless
and indemnify any response action contractor
meeting the requirements of this subsection
against any liability (including the expenses
of litigation or settlement) for negligence
arising out of the contractor’s performance in
carrying out response action activities under
this subchapter, unless such liability was
caused by conduct of the contractor which was
grossly negligent or which constituted intentional misconduct.
(2) Applicability
This subsection shall apply only with respect to a response action carried out under
written agreement with—
(A) the President;

Page 7716

(B) any Federal agency;
(C) a State or political subdivision which
has entered into a contract or cooperative
agreement in accordance with section
9604(d)(1) of this title; or
(D) any potentially responsible party carrying out any agreement under section 9622
of this title (relating to settlements) or section 9606 of this title (relating to abatement).
(3) Source of funding
This subsection shall not be subject to section 1301 or 1341 of title 31 or section 6301(a)
and (b) of title 41 or to section 9662 of this
title. For purposes of section 9611 of this title,
amounts expended pursuant to this subsection
for indemnification of any response action
contractor (except with respect to federally
owned or operated facilities) shall be considered governmental response costs incurred
pursuant to section 9604 of this title. If sufficient funds are unavailable in the Hazardous
Substance Superfund established under subchapter A of chapter 98 of title 26 to make payments pursuant to such indemnification or if
the Fund is repealed, there are authorized to
be appropriated such amounts as may be necessary to make such payments.
(4) Requirements
An indemnification agreement may be provided under this subsection only if the President determines that each of the following requirements are met:
(A) The liability covered by the indemnification agreement exceeds or is not covered by insurance available, at a fair and
reasonable price, to the contractor at the
time the contractor enters into the contract
to provide response action, and adequate insurance to cover such liability is not generally available at the time the response action contract is entered into.
(B) The response action contractor has
made diligent efforts to obtain insurance
coverage from non-Federal sources to cover
such liability.
(C) In the case of a response action contract covering more than one facility, the
response action contractor agrees to continue to make such diligent efforts each
time the contractor begins work under the
contract at a new facility.
(5) Limitations
(A) Liability covered
Indemnification under this subsection
shall apply only to response action contractor liability which results from a release
of any hazardous substance or pollutant or
contaminant if such release arises out of response action activities.
(B) Deductibles and limits
An indemnification agreement under this
subsection shall include deductibles and
shall place limits on the amount of indemnification to be made available.

Page 7717

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(C) Contracts with potentially responsible
parties
(i) Decision to indemnify
In deciding whether to enter into an indemnification agreement with a response
action contractor carrying out a written
contract or agreement with any potentially responsible party, the President
shall determine an amount which the potentially responsible party is able to indemnify the contractor. The President
may enter into such an indemnification
agreement only if the President determines that such amount of indemnification is inadequate to cover any reasonable
potential liability of the contractor arising out of the contractor’s negligence in
performing the contract or agreement
with such party. The President shall make
the determinations in the preceding sentences (with respect to the amount and the
adequacy of the amount) taking into account the total net assets and resources of
potentially responsible parties with respect to the facility at the time of such determinations.
(ii) Conditions
The President may pay a claim under an
indemnification agreement referred to in
clause (i) for the amount determined under
clause (i) only if the contractor has exhausted all administrative, judicial, and
common law claims for indemnification
against all potentially responsible parties
participating in the clean-up of the facility with respect to the liability of the contractor arising out of the contractor’s negligence in performing the contract or
agreement with such party. Such indemnification agreement shall require such
contractor to pay any deductible established under subparagraph (B) before the
contractor may recover any amount from
the potentially responsible party or under
the indemnification agreement.
(D) RCRA facilities
No owner or operator of a facility regulated under the Solid Waste Disposal Act [42
U.S.C. 6901 et seq.] may be indemnified under
this subsection with respect to such facility.
(E) Persons retained or hired
A person retained or hired by a person described in subsection (e)(2)(B) shall be eligible for indemnification under this subsection
only if the President specifically approves of
the retaining or hiring of such person.
(6) Cost recovery
For purposes of section 9607 of this title,
amounts expended pursuant to this subsection
for indemnification of any person who is a response action contractor with respect to any
release or threatened release shall be considered a cost of response incurred by the United
States Government with respect to such release.
(7) Regulations
The President shall promulgate regulations
for carrying out the provisions of this sub-

§ 9619

section. Before promulgation of the regulations, the President shall develop guidelines to
carry out this section. Development of such
guidelines shall include reasonable opportunity for public comment.
(8) Study
The Comptroller General shall conduct a
study in the fiscal year ending September 30,
1989, on the application of this subsection, including whether indemnification agreements
under this subsection are being used, the number of claims that have been filed under such
agreements, and the need for this subsection.
The Comptroller General shall report the findings of the study to Congress no later than
September 30, 1989.
(d) Exception
The exemption provided under subsection (a)
and the authority of the President to offer indemnification under subsection (c) shall not
apply to any person covered by the provisions of
paragraph (1), (2), (3), or (4) of section 9607(a) of
this title with respect to the release or threatened release concerned if such person would be
covered by such provisions even if such person
had not carried out any actions referred to in
subsection (e) of this section.
(e) Definitions
For purposes of this section—
(1) Response action contract
The term ‘‘response action contract’’ means
any written contract or agreement entered
into by a response action contractor (as defined in paragraph (2)(A) of this subsection)
with—
(A) the President;
(B) any Federal agency;
(C) a State or political subdivision which
has entered into a contract or cooperative
agreement in accordance with section
9604(d)(1) of this title; or
(D) any potentially responsible party carrying out an agreement under section 9606 or
9622 of this title;
to provide any remedial action under this
chapter at a facility listed on the National
Priorities List, or any removal under this
chapter, with respect to any release or threatened release of a hazardous substance or pollutant or contaminant from the facility or to
provide any evaluation, planning, engineering,
surveying and mapping, design, construction,
equipment, or any ancillary services thereto
for such facility.
(2) Response action contractor
The term ‘‘response action contractor’’
means—
(A) any—
(i) person who enters into a response action contract with respect to any release
or threatened release of a hazardous substance or pollutant or contaminant from a
facility and is carrying out such contract;
and 1
(ii) person, public or nonprofit private
entity, conducting a field demonstration
1 So in original. The word ‘‘and’’ probably should not appear.

§ 9619

TITLE 42—THE PUBLIC HEALTH AND WELFARE
pursuant to section 9660(b) of this title;
and
(iii) Recipients 2 of grants (including subgrantees) under section 9660a 3 of this title
for the training and education of workers
who are or may be engaged in activities related to hazardous waste removal, containment, or emergency response under this
chapter; and 1

(B) any person who is retained or hired by
a person described in subparagraph (A) to
provide any services relating to a response
action; and
(C) any surety who after October 16, 1990,
provides a bid, performance or payment bond
to a response action contractor, and begins
activities to meet its obligations under such
bond, but only in connection with such activities or obligations.
(3) Insurance
The term ‘‘insurance’’ means liability insurance which is fair and reasonably priced, as
determined by the President, and which is
made available at the time the contractor enters into the response action contract to provide response action.
(f) Competition
Response action contractors and subcontractors for program management, construction
management, architectural and engineering,
surveying and mapping, and related services
shall be selected in accordance with title IX of
the Federal Property and Administrative Services Act of 1949.3 The Federal selection procedures shall apply to appropriate contracts negotiated by all Federal governmental agencies involved in carrying out this chapter. Such procedures shall be followed by response action contractors and subcontractors.
(g) Surety bonds
(1) If under sections 3131 and 3133 of title 40,
surety bonds are required for any direct Federal
procurement of any response action contract
and are not waived pursuant to section 3134 of
title 40, they shall be issued in accordance with
sections 3131 and 3133 of title 40.
(2) If under applicable Federal law surety
bonds are required for any direct Federal procurement of any response action contract, no
right of action shall accrue on the performance
bond issued on such response action contract to
or for the use of any person other than the obligee named in the bond.
(3) If under applicable Federal law surety
bonds are required for any direct Federal procurement of any response action contract, unless otherwise provided for by the procuring
agency in the bond, in the event of a default, the
surety’s liability on a performance bond shall be
only for the cost of completion of the contract
work in accordance with the plans and specifications less the balance of funds remaining to be
paid under the contract, up to the penal sum of
the bond. The surety shall in no event be liable
on bonds to indemnify or compensate the obligee for loss or liability arising from personal in2 So in original. Probably should not be capitalized.
3 See References in Text note below.

Page 7718

jury or property damage whether or not caused
by a breach of the bonded contract.
(4) Nothing in this subsection shall be construed as preempting, limiting, superseding, affecting, applying to, or modifying any State
laws, regulations, requirements, rules, practices
or procedures. Nothing in this subsection shall
be construed as affecting, applying to, modifying, limiting, superseding, or preempting any
rights, authorities, liabilities, demands, actions,
causes of action, losses, judgments, claims, statutes of limitation, or obligations under Federal
or State law, which do not arise on or under the
bond.
(5) This subsection shall not apply to bonds executed before October 17, 1990.
(Pub. L. 96–510, title I, § 119, as added Pub. L.
99–499, title I, § 119, Oct. 17, 1986, 100 Stat. 1662;
amended Pub. L. 99–514, § 2, Oct. 22, 1986, 100
Stat. 2095; Pub. L. 100–202, § 101(f) [title II, § 201],
Dec. 22, 1987, 101 Stat. 1329–187, 1329–198; Pub. L.
101–584, § 1, Nov. 15, 1990, 104 Stat. 2872; Pub. L.
102–484, div. A, title III, § 331(a), Oct. 23, 1992, 106
Stat. 2373; Pub. L. 105–276, title III, Oct. 21, 1998,
112 Stat. 2497.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsecs. (b)(1), (e)(1),
(2)(A)(iii), and (f), was in the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as
the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 9601 of this title and Tables.
The Solid Waste Disposal Act, referred to in subsec.
(c)(5)(D), is title II of Pub. L. 89–272, Oct. 20, 1965, 79
Stat. 997, as amended generally by Pub. L. 94–580, § 2,
Oct. 21, 1976, 90 Stat. 2795, which is classified generally
to chapter 82 (§ 6901 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 6901 of this title and Tables.
Section 9660a of this title, referred to in subsec.
(e)(2)(A)(iii), was in the original ‘‘section 126’’ probably
meaning section 126 of Pub. L. 99–499, title I, Oct. 17,
1986, 100 Stat. 1690. Subsecs. (a) to (f) of section 126,
which relate to worker protection standards, are set
out as a note under section 655 of Title 29, Labor. Subsec. (g) of section 126, which relates to grants for training and education of workers who are or may be engaged in activities related to hazardous waste removal,
etc., is classified to section 9660a of this title.
The Federal Property and Administrative Services
Act of 1949, referred to in subsec. (f), is act June 30,
1949, ch. 288, 63 Stat. 377. Title IX of the Act, which was
classified generally to subchapter VI (§ 541 et seq.) of
chapter 10 of former Title 40, Public Buildings, Property, and Works, was repealed and reenacted by Pub. L.
107–217, §§ 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304, as
chapter 11 (§ 1101 et seq.) of Title 40, Public Buildings,
Property, and Works. For disposition of sections of
former Title 40 to revised Title 40, see Table preceding
section 101 of Title 40. For complete classification of
this Act to the Code, see Tables.
CODIFICATION
In subsec. (c)(3), ‘‘section 6301(a) and (b) of title 41’’
substituted for ‘‘section 3732 of the Revised Statutes (41
U.S.C. 11)’’ on authority of Pub. L. 111–350, § 6(c), Jan.
4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public
Contracts.
In subsec. (g)(1), ‘‘sections 3131 and 3133 of title 40’’
substituted for ‘‘the Act of August 24, 1935 (40 U.S.C.

Page 7719

TITLE 42—THE PUBLIC HEALTH AND WELFARE

270a–270d), commonly referred to as the ‘Miller Act’ ’’
and for ‘‘such Act of August 24, 1935’’ and ‘‘section 3134
of title 40’’ substituted for ‘‘the Act of April 29, 1941 (40
U.S.C. 270e–270f)’’, on authority of Pub. L. 107–217, § 5(c),
Aug. 21, 2002, 116 Stat. 1303, the first section of which
enacted Title 40, Public Buildings, Property, and
Works.
AMENDMENTS
1998—Subsec. (e)(2)(C). Pub. L. 105–276 struck out ‘‘and
before January 1, 1996,’’ after ‘‘1990,’’.
Subsec. (g)(5). Pub. L. 105–276 struck out ‘‘, or after
December 31, 1995’’ before period at end.
1992—Subsec. (e)(2)(C). Pub. L. 102–484, § 321(a)(1)(A),
substituted ‘‘January 1, 1996,’’ for ‘‘January 1, 1993’’.
Subsec. (g)(1). Pub. L. 102–484, § 331(a)(2), substituted
‘‘the Act of August 24, 1935 (40 U.S.C. 270a–270d), commonly referred to as the ‘Miller Act’,’’ for ‘‘the Miller
Act, 40 U.S.C. sections 270a–270f,’’, inserted ‘‘and are
not waived pursuant to the Act of April 29, 1941 (40
U.S.C. 270e–270f)’’, and substituted ‘‘in accordance with
such Act of August 24, 1935.’’ for ‘‘in accordance with 40
U.S.C. sections 270a–270d.’’
Subsec. (g)(5). Pub. L. 102–484, § 331(a)(1)(B), substituted ‘‘December 31, 1995’’ for ‘‘December 31, 1992’’.
1990—Subsec. (e)(2)(C). Pub. L. 101–584, § 1(1), (2), added
subpar. (C).
Subsec. (g). Pub. L. 101–584, § 1(3), added subsec. (g).
1987—Subsec. (e)(2)(A)(iii). Pub. L. 100–202 added cl.
(iii).
1986—Subsec. (c)(3). Pub. L. 99–514 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue Code
of 1954’’, which for purposes of codification was translated as ‘‘title 26’’ thus requiring no change in text.
Statutory Notes and Related Subsidiaries
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.

§ 9620. Federal facilities
(a) Application of chapter to Federal Government
(1) In general
Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of
government) shall be subject to, and comply
with, this chapter in the same manner and to
the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this
title. Nothing in this section shall be construed to affect the liability of any person or
entity under sections 9606 and 9607 of this
title.
(2) Application of requirements to Federal facilities
All guidelines, rules, regulations, and criteria which are applicable to preliminary assessments carried out under this chapter for
facilities at which hazardous substances are
located, applicable to evaluations of such facilities under the National Contingency Plan,
applicable to inclusion on the National Priorities List, or applicable to remedial actions at
such facilities shall also be applicable to facilities which are owned or operated by a department, agency, or instrumentality of the

§ 9620

United States in the same manner and to the
extent as such guidelines, rules, regulations,
and criteria are applicable to other facilities.
No department, agency, or instrumentality of
the United States may adopt or utilize any
such guidelines, rules, regulations, or criteria
which are inconsistent with the guidelines,
rules, regulations, and criteria established by
the Administrator under this chapter.
(3) Exceptions
This subsection shall not apply to the extent
otherwise provided in this section with respect
to applicable time periods. This subsection
shall also not apply to any requirements relating to bonding, insurance, or financial responsibility. Nothing in this chapter shall be construed to require a State to comply with section 9604(c)(3) of this title in the case of a facility which is owned or operated by any department, agency, or instrumentality of the
United States.
(4) State laws
State laws concerning removal and remedial
action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by
a department, agency, or instrumentality of
the United States or facilities that are the
subject of a deferral under subsection (h)(3)(C)
when such facilities are not included on the
National Priorities List. The preceding sentence shall not apply to the extent a State law
would apply any standard or requirement to
such facilities which is more stringent than
the standards and requirements applicable to
facilities which are not owned or operated by
any such department, agency, or instrumentality.
(b) Notice
Each department, agency, and instrumentality of the United States shall add to the inventory of Federal agency hazardous waste facilities required to be submitted under section
3016 of the Solid Waste Disposal Act [42 U.S.C.
6937] (in addition to the information required
under section 3016(a)(3) of such Act [42 U.S.C.
6937(a)(3)]) information on contamination from
each facility owned or operated by the department, agency, or instrumentality if such contamination affects contiguous or adjacent property owned by the department, agency, or instrumentality or by any other person, including
a description of the monitoring data obtained.
(c) Federal Agency Hazardous Waste Compliance
Docket
The Administrator shall establish a special
Federal Agency Hazardous Waste Compliance
Docket (hereinafter in this section referred to as
the ‘‘docket’’) which shall contain each of the
following:
(1) All information submitted under section
3016 of the Solid Waste Disposal Act [42 U.S.C.
6937] and subsection (b) of this section regarding any Federal facility and notice of each
subsequent action taken under this chapter
with respect to the facility.
(2) Information submitted by each department, agency, or instrumentality of the

§ 9620

TITLE 42—THE PUBLIC HEALTH AND WELFARE

United States under section 3005 or 3010 of
such Act [42 U.S.C. 6925, 6930].
(3) Information submitted by the department, agency, or instrumentality under section 9603 of this title.
The docket shall be available for public inspection at reasonable times. Six months after establishment of the docket and every 6 months
thereafter, the Administrator shall publish in
the Federal Register a list of the Federal facilities which have been included in the docket during the immediately preceding 6-month period.
Such publication shall also indicate where in
the appropriate regional office of the Environmental Protection Agency additional information may be obtained with respect to any facility on the docket. The Administrator shall establish a program to provide information to the
public with respect to facilities which are included in the docket under this subsection.
(d) Assessment and evaluation
(1) In general
The Administrator shall take steps to assure
that a preliminary assessment is conducted
for each facility on the docket. Following such
preliminary assessment, the Administrator
shall, where appropriate—
(A) evaluate such facilities in accordance
with the criteria established in accordance
with section 9605 of this title under the National Contingency Plan for determining priorities among releases; and
(B) include such facilities on the National
Priorities List maintained under such plan if
the facility meets such criteria.
(2) Application of criteria
(A) In general
Subject to subparagraph (B), the criteria
referred to in paragraph (1) shall be applied
in the same manner as the criteria are applied to facilities that are owned or operated
by persons other than the United States.
(B) Response under other law
It shall be an appropriate factor to be
taken into consideration for the purposes of
section 9605(a)(8)(A) of this title that the
head of the department, agency, or instrumentality that owns or operates a facility
has arranged with the Administrator or appropriate State authorities to respond appropriately, under authority of a law other
than this chapter, to a release or threatened
release of a hazardous substance.
(3) Completion
Evaluation and listing under this subsection
shall be completed in accordance with a reasonable schedule established by the Administrator.
(e) Required action by department
(1) RI/FS
Not later than 6 months after the inclusion
of any facility on the National Priorities List,
the department, agency, or instrumentality
which owns or operates such facility shall, in
consultation with the Administrator and appropriate State authorities, commence a re-

Page 7720

medial investigation and feasibility study for
such facility. In the case of any facility which
is listed on such list before October 17, 1986,
the department, agency, or instrumentality
which owns or operates such facility shall, in
consultation with the Administrator and appropriate State authorities, commence such
an investigation and study for such facility
within one year after October 17, 1986. The Administrator and appropriate State authorities
shall publish a timetable and deadlines for expeditious completion of such investigation and
study.
(2) Commencement of remedial action; interagency agreement
The Administrator shall review the results
of each investigation and study conducted as
provided in paragraph (1). Within 180 days
thereafter, the head of the department, agency, or instrumentality concerned shall enter
into an interagency agreement with the Administrator for the expeditious completion by
such department, agency, or instrumentality
of all necessary remedial action at such facility. Substantial continuous physical onsite remedial action shall be commenced at each facility not later than 15 months after completion of the investigation and study. All such
interagency agreements, including review of
alternative remedial action plans and selection of remedial action, shall comply with the
public participation requirements of section
9617 of this title.
(3) Completion of remedial actions
Remedial actions at facilities subject to
interagency agreements under this section
shall be completed as expeditiously as practicable. Each agency shall include in its annual budget submissions to the Congress a review of alternative agency funding which
could be used to provide for the costs of remedial action. The budget submission shall also
include a statement of the hazard posed by the
facility to human health, welfare, and the environment and identify the specific consequences of failure to begin and complete remedial action.
(4) Contents of agreement
Each interagency agreement under this subsection shall include, but shall not be limited
to, each of the following:
(A) A review of alternative remedial actions and selection of a remedial action by
the head of the relevant department, agency,
or instrumentality and the Administrator
or, if unable to reach agreement on selection
of a remedial action, selection by the Administrator.
(B) A schedule for the completion of each
such remedial action.
(C) Arrangements for long-term operation
and maintenance of the facility.
(5) Annual report
Each department, agency, or instrumentality responsible for compliance with this
section shall furnish an annual report to the
Congress concerning its progress in implementing the requirements of this section.

Page 7721

TITLE 42—THE PUBLIC HEALTH AND WELFARE

Such reports shall include, but shall not be
limited to, each of the following items:
(A) A report on the progress in reaching
interagency agreements under this section.
(B) The specific cost estimates and budgetary proposals involved in each interagency
agreement.
(C) A brief summary of the public comments regarding each proposed interagency
agreement.
(D) A description of the instances in which
no agreement was reached.
(E) A report on progress in conducting investigations and studies under paragraph (1).
(F) A report on progress in conducting remedial actions.
(G) A report on progress in conducting remedial action at facilities which are not listed on the National Priorities List.
With respect to instances in which no agreement was reached within the required time period, the department, agency, or instrumentality filing the report under this paragraph
shall include in such report an explanation of
the reasons why no agreement was reached.
The annual report required by this paragraph
shall also contain a detailed description on a
State-by-State basis of the status of each facility subject to this section, including a description of the hazard presented by each facility, plans and schedules for initiating and
completing response action, enforcement status (where appropriate), and an explanation of
any postponements or failure to complete response action. Such reports shall also be submitted to the affected States.
(6) Settlements with other parties
If the Administrator, in consultation with
the head of the relevant department, agency,
or instrumentality of the United States, determines that remedial investigations and feasibility studies or remedial action will be done
properly at the Federal facility by another potentially responsible party within the deadlines provided in paragraphs (1), (2), and (3) of
this subsection, the Administrator may enter
into an agreement with such party under section 9622 of this title (relating to settlements).
Following approval by the Attorney General
of any such agreement relating to a remedial
action, the agreement shall be entered in the
appropriate United States district court as a
consent decree under section 9606 of this title.
(f) State and local participation
The Administrator and each department,
agency, or instrumentality responsible for compliance with this section shall afford to relevant
State and local officials the opportunity to participate in the planning and selection of the remedial action, including but not limited to the
review of all applicable data as it becomes available and the development of studies, reports,
and action plans. In the case of State officials,
the opportunity to participate shall be provided
in accordance with section 9621 of this title.
(g) Transfer of authorities
Except for authorities which are delegated by
the Administrator to an officer or employee of
the Environmental Protection Agency, no au-

§ 9620

thority vested in the Administrator under this
section may be transferred, by executive order
of the President or otherwise, to any other officer or employee of the United States or to any
other person.
(h) Property transferred by Federal agencies
(1) Notice
After the last day of the 6-month period beginning on the effective date of regulations
under paragraph (2) of this subsection, whenever any department, agency, or instrumentality of the United States enters into any
contract for the sale or other transfer of real
property which is owned by the United States
and on which any hazardous substance was
stored for one year or more, known to have
been released, or disposed of, the head of such
department, agency, or instrumentality shall
include in such contract notice of the type and
quantity of such hazardous substance and notice of the time at which such storage, release,
or disposal took place, to the extent such information is available on the basis of a complete search of agency files.
(2) Form of notice; regulations
Notice under this subsection shall be provided in such form and manner as may be provided in regulations promulgated by the Administrator. As promptly as practicable after
October 17, 1986, but not later than 18 months
after October 17, 1986, and after consultation
with the Administrator of the General Services Administration, the Administrator shall
promulgate regulations regarding the notice
required to be provided under this subsection.
(3) Contents of certain deeds
(A) In general
After the last day of the 6-month period
beginning on the effective date of regulations under paragraph (2) of this subsection,
in the case of any real property owned by
the United States on which any hazardous
substance was stored for one year or more,
known to have been released, or disposed of,
each deed entered into for the transfer of
such property by the United States to any
other person or entity shall contain—
(i) to the extent such information is
available on the basis of a complete search
of agency files—
(I) a notice of the type and quantity of
such hazardous substances,
(II) notice of the time at which such
storage, release, or disposal took place,
and
(III) a description of the remedial action taken, if any;
(ii) a covenant warranting that—
(I) all remedial action necessary to
protect human health and the environment with respect to any such substance
remaining on the property has been
taken before the date of such transfer,
and
(II) any additional remedial action
found to be necessary after the date of
such transfer shall be conducted by the
United States; and

§ 9620

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(iii) a clause granting the United States
access to the property in any case in which
remedial action or corrective action is
found to be necessary after the date of
such transfer.
(B) Covenant requirements
For purposes of subparagraphs (A)(ii)(I)
and (C)(iii), all remedial action described in
such subparagraph has been taken if the construction and installation of an approved remedial design has been completed, and the
remedy has been demonstrated to the Administrator to be operating properly and
successfully. The carrying out of long-term
pumping and treating, or operation and
maintenance, after the remedy has been
demonstrated to the Administrator to be operating properly and successfully does not
preclude the transfer of the property. The requirements of subparagraph (A)(ii) shall not
apply in any case in which the person or entity to whom the real property is transferred
is a potentially responsible party with respect to such property. The requirements of
subparagraph (A)(ii) shall not apply in any
case in which the transfer of the property
occurs or has occurred by means of a lease,
without regard to whether the lessee has
agreed to purchase the property or whether
the duration of the lease is longer than 55
years. In the case of a lease entered into
after September 30, 1995, with respect to real
property located at an installation approved
for closure or realignment under a base closure law, the agency leasing the property, in
consultation with the Administrator, shall
determine before leasing the property that
the property is suitable for lease, that the
uses contemplated for the lease are consistent with protection of human health and
the environment, and that there are adequate assurances that the United States will
take all remedial action referred to in subparagraph (A)(ii) that has not been taken on
the date of the lease.
(C) Deferral
(i) In general
The Administrator, with the concurrence
of the Governor of the State in which the
facility is located (in the case of real property at a Federal facility that is listed on
the National Priorities List), or the Governor of the State in which the facility is
located (in the case of real property at a
Federal facility not listed on the National
Priorities List) may defer the requirement
of subparagraph (A)(ii)(I) with respect to
the property if the Administrator or the
Governor, as the case may be, determines
that the property is suitable for transfer,
based on a finding that—
(I) the property is suitable for transfer
for the use intended by the transferee,
and the intended use is consistent with
protection of human health and the environment;
(II) the deed or other agreement proposed to govern the transfer between the
United States and the transferee of the

Page 7722

property contains the assurances set
forth in clause (ii);
(III) the Federal agency requesting deferral has provided notice, by publication in a newspaper of general circulation in the vicinity of the property, of
the proposed transfer and of the opportunity for the public to submit, within a
period of not less than 30 days after the
date of the notice, written comments on
the suitability of the property for transfer; and
(IV) the deferral and the transfer of the
property will not substantially delay any
necessary response action at the property.
(ii) Response action assurances
With regard to a release or threatened
release of a hazardous substance for which
a Federal agency is potentially responsible
under this section, the deed or other agreement proposed to govern the transfer shall
contain assurances that—
(I) provide for any necessary restrictions on the use of the property to ensure the protection of human health and
the environment;
(II) provide that there will be restrictions on use necessary to ensure that required remedial investigations, response
action, and oversight activities will not
be disrupted;
(III) provide that all necessary response action will be taken and identify
the schedules for investigation and completion of all necessary response action
as approved by the appropriate regulatory agency; and
(IV) provide that the Federal agency
responsible for the property subject to
transfer will submit a budget request to
the Director of the Office of Management
and Budget that adequately addresses
schedules for investigation and completion of all necessary response action,
subject to congressional authorizations
and appropriations.
(iii) Warranty
When all response action necessary to
protect human health and the environment with respect to any substance remaining on the property on the date of
transfer has been taken, the United States
shall execute and deliver to the transferee
an appropriate document containing a
warranty that all such response action has
been taken, and the making of the warranty shall be considered to satisfy the requirement of subparagraph (A)(ii)(I).
(iv) Federal responsibility
A deferral under this subparagraph shall
not increase, diminish, or affect in any
manner any rights or obligations of a Federal agency (including any rights or obligations under this section and sections
9606 and 9607 of this title existing prior to
transfer) with respect to a property transferred under this subparagraph.

Page 7723

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(4) Identification of uncontaminated property
(A) In the case of real property to which this
paragraph applies (as set forth in subparagraph (E)), the head of the department, agency, or instrumentality of the United States
with jurisdiction over the property shall identify the real property on which no hazardous
substances and no petroleum products or their
derivatives were known to have been released
or disposed of. Such identification shall be
based on an investigation of the real property
to determine or discover the obviousness of
the presence or likely presence of a release or
threatened release of any hazardous substance
or any petroleum product or its derivatives,
including aviation fuel and motor oil, on the
real property. The identification shall consist,
at a minimum, of a review of each of the following sources of information concerning the
current and previous uses of the real property:
(i) A detailed search of Federal Government records pertaining to the property.
(ii) Recorded chain of title documents regarding the real property.
(iii) Aerial photographs that may reflect
prior uses of the real property and that are
reasonably obtainable through State or local
government agencies.
(iv) A visual inspection of the real property and any buildings, structures, equipment, pipe, pipeline, or other improvements
on the real property, and a visual inspection
of properties immediately adjacent to the
real property.
(v) A physical inspection of property adjacent to the real property, to the extent permitted by owners or operators of such property.
(vi) Reasonably obtainable Federal, State,
and local government records of each adjacent facility where there has been a release
of any hazardous substance or any petroleum product or its derivatives, including
aviation fuel and motor oil, and which is
likely to cause or contribute to a release or
threatened release of any hazardous substance or any petroleum product or its derivatives, including aviation fuel and motor
oil, on the real property.
(vii) Interviews with current or former employees involved in operations on the real
property.
Such identification shall also be based on sampling, if appropriate under the circumstances.
The results of the identification shall be provided immediately to the Administrator and
State and local government officials and made
available to the public.
(B) The identification required under subparagraph (A) is not complete until concurrence in the results of the identification is obtained, in the case of real property that is part
of a facility on the National Priorities List,
from the Administrator, or, in the case of real
property that is not part of a facility on the
National Priorities List, from the appropriate
State official. In the case of a concurrence
which is required from a State official, the
concurrence is deemed to be obtained if, within 90 days after receiving a request for the

§ 9620

concurrence, the State official has not acted
(by either concurring or declining to concur)
on the request for concurrence.
(C)(i) Except as provided in clauses (ii), (iii),
and (iv), the identification and concurrence required under subparagraphs (A) and (B), respectively, shall be made at least 6 months before the termination of operations on the real
property.
(ii) In the case of real property described in
subparagraph (E)(i)(II) on which operations
have been closed or realigned or scheduled for
closure or realignment pursuant to a base closure law described in subparagraph (E)(ii)(I) or
(E)(ii)(II) by October 19, 1992, the identification and concurrence required under subparagraphs (A) and (B), respectively, shall be made
not later than 18 months after October 19, 1992.
(iii) In the case of real property described in
subparagraph (E)(i)(II) on which operations
are closed or realigned or become scheduled
for closure or realignment pursuant to the
base closure law described in subparagraph
(E)(ii)(II) after October 19, 1992, the identification and concurrence required under subparagraphs (A) and (B), respectively, shall be made
not later than 18 months after the date by
which a joint resolution disapproving the closure or realignment of the real property under
section 2904(b) of such base closure law must
be enacted, and such a joint resolution has not
been enacted.
(iv) In the case of real property described in
subparagraphs (E)(i)(II) on which operations
are closed or realigned pursuant to a base closure law described in subparagraph (E)(ii)(III)
or (E)(ii)(IV), the identification and concurrence required under subparagraphs (A) and
(B), respectively, shall be made not later than
18 months after the date on which the real
property is selected for closure or realignment
pursuant to such a base closure law.
(D) In the case of the sale or other transfer
of any parcel of real property identified under
subparagraph (A), the deed entered into for
the sale or transfer of such property by the
United States to any other person or entity
shall contain—
(i) a covenant warranting that any response action or corrective action found to
be necessary after the date of such sale or
transfer shall be conducted by the United
States; and
(ii) a clause granting the United States access to the property in any case in which a
response action or corrective action is found
to be necessary after such date at such property, or such access is necessary to carry out
a response action or corrective action on adjoining property.
(E)(i) This paragraph applies to—
(I) real property owned by the United
States and on which the United States plans
to terminate Federal Government operations, other than real property described in
subclause (II); and
(II) real property that is or has been used
as a military installation and on which the
United States plans to close or realign military operations pursuant to a base closure
law.

§ 9620

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(ii) For purposes of this paragraph, the term
‘‘base closure law’’ includes the following:
(I) Title II of the Defense Authorization
Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687
note).
(II) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of
Public Law 101–510; 10 U.S.C. 2687 note).
(III) Section 2687 of title 10.
(IV) Any provision of law authorizing the
closure or realignment of a military installation enacted on or after October 19, 1992.
(F) Nothing in this paragraph shall affect,
preclude, or otherwise impair the termination
of Federal Government operations on real
property owned by the United States.
(5) Notification of States regarding certain
leases
In the case of real property owned by the
United States, on which any hazardous substance or any petroleum product or its derivatives (including aviation fuel and motor oil)
was stored for one year or more, known to
have been released, or disposed of, and on
which the United States plans to terminate
Federal Government operations, the head of
the department, agency, or instrumentality of
the United States with jurisdiction over the
property shall notify the State in which the
property is located of any lease entered into
by the United States that will encumber the
property beyond the date of termination of operations on the property. Such notification
shall be made before entering into the lease
and shall include the length of the lease, the
name of person to whom the property is
leased, and a description of the uses that will
be allowed under the lease of the property and
buildings and other structures on the property.
(i) Obligations under Solid Waste Disposal Act
Nothing in this section shall affect or impair
the obligation of any department, agency, or instrumentality of the United States to comply
with any requirement of the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] (including corrective action requirements).
(j) National security
(1) Site specific Presidential orders
The President may issue such orders regarding response actions at any specified site or facility of the Department of Energy or the Department of Defense as may be necessary to
protect the national security interests of the
United States at that site or facility. Such orders may include, where necessary to protect
such interests, an exemption from any requirement contained in this subchapter or
under title III of the Superfund Amendments
and Reauthorization Act of 1986 [42 U.S.C.
11001 et seq.] with respect to the site or facility concerned. The President shall notify the
Congress within 30 days of the issuance of an
order under this paragraph providing for any
such exemption. Such notification shall include a statement of the reasons for the granting of the exemption. An exemption under this

Page 7724

paragraph shall be for a specified period which
may not exceed one year. Additional exemptions may be granted, each upon the President’s issuance of a new order under this paragraph for the site or facility concerned. Each
such additional exemption shall be for a specified period which may not exceed one year. It
is the intention of the Congress that whenever
an exemption is issued under this paragraph
the response action shall proceed as expeditiously as practicable. The Congress shall be
notified periodically of the progress of any response action with respect to which an exemption has been issued under this paragraph. No
exemption shall be granted under this paragraph due to lack of appropriation unless the
President shall have specifically requested
such appropriation as a part of the budgetary
process and the Congress shall have failed to
make available such requested appropriation.
(2) Classified information
Notwithstanding any other provision of law,
all requirements of the Atomic Energy Act [42
U.S.C. 2011 et seq.] and all Executive orders
concerning the handling of restricted data and
national security information, including
‘‘need to know’’ requirements, shall be applicable to any grant of access to classified information under the provisions of this chapter or
under title III of the Superfund Amendments
and Reauthorization Act of 1986 [42 U.S.C.
11001 et seq.].
(Pub. L. 96–510, title I, § 120, as added Pub. L.
99–499, title I, § 120(a), Oct. 17, 1986, 100 Stat. 1666;
amended Pub. L. 102–426, §§ 3–5, Oct. 19, 1992, 106
Stat. 2175–2177; Pub. L. 104–106, div. B, title
XXVIII, § 2834, Feb. 10, 1996, 110 Stat. 559; Pub. L.
104–201, div. A, title III, §§ 330, 331, 334, Sept. 23,
1996, 110 Stat. 2484, 2486.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a)(1) to (3),
(c)(1), (d)(2)(B), and (j)(2), was in the original ‘‘this
Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767,
known as the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note
set out under section 9601 of this title and Tables.
Section 2904(b) of such base closure law, referred to in
subsec. (h)(4)(C)(iii), means section 2904(b) of Pub. L.
101–510, which is set out as a note under section 2687 of
Title 10, Armed Forces.
The Solid Waste Disposal Act, referred to in subsec.
(i), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997,
as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976,
90 Stat. 2795, which is classified generally to chapter 82
(§ 6901 et seq.) of this title. For complete classification
of this Act to the Code, see Short Title note set out
under section 6901 of this title and Tables.
Title III of the Superfund Amendments and Reauthorization Act of 1986, referred to in subsec. (j), is title
III of Pub. L. 99–499, Oct. 17, 1986, 100 Stat. 1728, known
as the Emergency Planning and Community Right-ToKnow Act of 1986, which is classified generally to chapter 116 (§ 11001 et seq.) of this title. For complete classification of title III to the Code, see Short Title note set
out under section 11001 of this title and Tables.
The Atomic Energy Act, referred to in subsec. (j)(2),
probably means the Atomic Energy Act of 1954, act
Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch.

Page 7725

TITLE 42—THE PUBLIC HEALTH AND WELFARE

1073, § 1, 68 Stat. 919, which is classified principally to
chapter 23 (§ 2011 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 2011 of this title and Tables.
AMENDMENTS
1996—Subsec. (a)(4). Pub. L. 104–201, § 334(b), inserted
‘‘or facilities that are the subject of a deferral under
subsection (h)(3)(C)’’ after ‘‘United States’’.
Subsec. (d). Pub. L. 104–201, § 330(2)–(4), designated existing provisions as par. (1), inserted par. heading, substituted ‘‘The Administrator’’ for ‘‘Not later than 18
months after October 17, 1986, the Administrator’’, realigned margins of par. (1) and subpars. (A) and (B), and
substituted pars. (2) and (3) for ‘‘Such criteria shall be
applied in the same manner as the criteria are applied
to facilities which are owned or operated by other persons. Evaluation and listing under this subsection shall
be completed not later than 30 months after October 17,
1986. Upon the receipt of a petition from the Governor
of any State, the Administrator shall make such an
evaluation of any facility included in the docket.’’
Pub. L. 104–201, § 330(1), redesignated pars. (1) and (2)
as subpars. (A) and (B), respectively.
Subsec. (h)(3). Pub. L. 104–201, § 334(a)(8), added subpar. (C).
Pub. L. 104–201, § 334(a)(6), (7), designated existing provisions as subpar. (B), inserted heading, substituted
‘‘For purposes of subparagraphs (A)(ii)(I) and (C)(iii)’’
for ‘‘For purposes of subparagraph (B)(i)’’, and substituted ‘‘subparagraph (A)(ii)’’ for ‘‘subparagraph (B)’’
in three places.
Pub. L. 104–201, § 334(a)(1)–(5), designated first sentence as subpar. (A), inserted heading, redesignated
former subpar. (A) and cls. (i) to (iii) of that subpar. as
cl. (i) of subpar. (A) and subcls. (I) to (III) of that cl.,
respectively, redesignated former subpar. (B) and cls.
(i) and (ii) of that subpar. as cl. (ii) of subpar. (A) and
subcls. (I) and (II) of that cl., respectively, redesignated
former subpar. (C) as cl. (iii) of subpar. (A), and realigned margins of such cls. and subcls.
Pub. L. 104–106, § 2834(2), which directed that par. (3)
be amended in the matter following subpar. (C) by adding at the end, flush to the paragraph margin, the following, was executed by inserting the following provision at the end of the concluding provisions ‘‘The requirements of subparagraph (B) shall not apply in any
case in which the person or entity to whom the real
property is transferred is a potentially responsible
party with respect to such property. The requirements
of subparagraph (B) shall not apply in any case in
which the transfer of the property occurs or has occurred by means of a lease, without regard to whether
the lessee has agreed to purchase the property or
whether the duration of the lease is longer than 55
years. In the case of a lease entered into after September 30, 1995, with respect to real property located at
an installation approved for closure or realignment
under a base closure law, the agency leasing the property, in consultation with the Administrator, shall determine before leasing the property that the property
is suitable for lease, that the uses contemplated for the
lease are consistent with protection of human health
and the environment, and that there are adequate assurances that the United States will take all remedial
action referred to in subparagraph (B) that has not
been taken on the date of the lease.’’
Pub. L. 104–106, § 2834(1), struck out first sentence of
concluding provisions which read as follows: ‘‘The requirements of subparagraph (B) shall not apply in any
case in which the person or entity to whom the property is transferred is a potentially responsible party
with respect to such real property.’’
Subsec. (h)(4)(A). Pub. L. 104–201, § 331, substituted
‘‘known to have been released’’ for ‘‘stored for one year
or more, known to have been released,’’.
1992—Subsec. (h)(3). Pub. L. 102–426, § 4(a), inserted at
end ‘‘For purposes of subparagraph (B)(i), all remedial
action described in such subparagraph has been taken
if the construction and installation of an approved re-

§ 9620

medial design has been completed, and the remedy has
been demonstrated to the Administrator to be operating properly and successfully. The carrying out of
long-term pumping and treating, or operation and
maintenance, after the remedy has been demonstrated
to the Administrator to be operating properly and successfully does not preclude the transfer of the property.’’
Subsec. (h)(3)(C). Pub. L. 102–426, § 4(b), added subpar.
(C).
Subsec. (h)(4). Pub. L. 102–426, § 3, added par. (4).
Subsec. (h)(5). Pub. L. 102–426, § 5, added par. (5).
Statutory Notes and Related Subsidiaries
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
of law requiring submittal to Congress of any annual,
semiannual, or other regular periodic report listed in
House Document No. 103–7 (in which a report required
under subsec. (e)(5) of this section is listed as the 5th
item on page 151), see section 3003 of Pub. L. 104–66, as
amended, and section 1(a)(4) [div. A, § 1402(1)] of Pub. L.
106–554, set out as notes under section 1113 of Title 31,
Money and Finance.
ENVIRONMENTAL COMPLIANCE NOT AFFECTED BY PUB.
L. 114–120
Pub. L. 114–120, title V, § 534(a), Feb. 8, 2016, 130 Stat.
75, as amended by Pub. L. 116–92, div. C, title XXXV,
§ 3514(e), Dec. 20, 2019, 133 Stat. 1984, provided that:
‘‘After the date on which the Secretary of the Interior
conveys land under section 533 of this Act [section 533
of Pub. L. 114–120, 130 Stat. 74, not classified to Code],
nothing in this Act [see Tables for classification] or
any amendment made by this Act may be construed to
affect or limit the application of or obligation to comply with any applicable environmental law, including
section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9620(h)), with respect to contaminants on such
land prior to the date on which the land is conveyed.’’
IDENTIFICATION OF UNCONTAMINATED PROPERTY AT
INSTALLATIONS TO BE CLOSED
Pub. L. 103–160, div. B, title XXIX, § 2910, Nov. 30, 1993,
107 Stat. 1924, provided that: ‘‘The identification by the
Secretary of Defense required under section 120(h)(4)(A)
of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9620(h)(4)(A)), and the concurrence required under section 120(h)(4)(B) of such Act, shall be made not later
than the earlier of—
‘‘(1) the date that is 9 months after the date of the
submittal, if any, to the transition coordinator for
the installation concerned of a specific use proposed
for all or a portion of the real property of the installation; or
‘‘(2) the date specified in section 120(h)(4)(C)(iii) of
such Act.’’
CONGRESSIONAL FINDINGS
Pub. L. 102–426, § 2, Oct. 19, 1992, 106 Stat. 2174, provided that: ‘‘The Congress finds the following:
‘‘(1) The closure of certain Federal facilities is having adverse effects on the economies of local communities by eliminating jobs associated with such facilities, and delay in remediation of environmental contamination of real property at such facilities is preventing transfer and private development of such
property.
‘‘(2) Each department, agency, or instrumentality
of the United States, in cooperation with local communities, should expeditiously identify real property
that offers the greatest opportunity for reuse and redevelopment on each facility under the jurisdiction
of the department, agency, or instrumentality where
operations are terminating.
‘‘(3) Remedial actions, including remedial investigations and feasibility studies, and corrective ac-

§ 9621

TITLE 42—THE PUBLIC HEALTH AND WELFARE

tions at such Federal facilities should be expedited in
a manner to facilitate environmental protection and
the sale or transfer of such excess real property for
the purpose of mitigating adverse economic effects on
the surrounding community.
‘‘(4) Each department, agency, or instrumentality
of the United States, in accordance with applicable
law, should make available without delay such excess
real property.
‘‘(5) In the case of any real property owned by the
United States and transferred to another person, the
United States Government should remain responsible
for conducting any remedial action or corrective action necessary to protect human health and the environment with respect to any hazardous substance or
petroleum product or its derivatives, including aviation fuel and motor oil, that was present on such real
property at the time of transfer.’’
APPLICABILITY
Pub. L. 99–499, title I, § 120(b), Oct. 17, 1986, 100 Stat.
1671, provided that: ‘‘Section 120 of CERCLA [42 U.S.C.
9620] shall not apply to any response action or remedial
action for which a plan is under development by the
Department of Energy on the date of enactment of this
Act [Oct. 17, 1986] with respect to facilities—
‘‘(1) owned or operated by the United States and
subject to the jurisdiction of such Department;
‘‘(2) located in St. Charles and St. Louis counties,
Missouri, or the city of St. Louis, Missouri, and
‘‘(3) published in the National Priorities List.
In preparing such plans, the Secretary of Energy shall
consult with the Administrator of the Environmental
Protection Agency.’’

§ 9621. Cleanup standards
(a) Selection of remedial action
The President shall select appropriate remedial actions determined to be necessary to be
carried out under section 9604 of this title or secured under section 9606 of this title which are
in accordance with this section and, to the extent practicable, the national contingency plan,
and which provide for cost-effective response. In
evaluating the cost effectiveness of proposed alternative remedial actions, the President shall
take into account the total short- and long-term
costs of such actions, including the costs of operation and maintenance for the entire period
during which such activities will be required.
(b) General rules
(1) Remedial actions in which treatment which
permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, and contaminants is a principal element, are to be preferred over remedial
actions not involving such treatment. The offsite transport and disposal of hazardous substances or contaminated materials without such
treatment should be the least favored alternative remedial action where practicable treatment technologies are available. The President
shall conduct an assessment of permanent solutions and alternative treatment technologies or
resource recovery technologies that, in whole or
in part, will result in a permanent and significant decrease in the toxicity, mobility, or volume of the hazardous substance, pollutant, or
contaminant. In making such assessment, the
President shall specifically address the longterm effectiveness of various alternatives. In assessing alternative remedial actions, the President shall, at a minimum, take into account:

Page 7726

(A) the long-term uncertainties associated
with land disposal;
(B) the goals, objectives, and requirements
of the Solid Waste Disposal Act [42 U.S.C. 6901
et seq.];
(C) the persistence, toxicity, mobility, and
propensity to bioaccumulate of such hazardous substances and their constituents;
(D) short- and long-term potential for adverse health effects from human exposure;
(E) long-term maintenance costs;
(F) the potential for future remedial action
costs if the alternative remedial action in
question were to fail; and
(G) the potential threat to human health
and the environment associated with excavation, transportation, and redisposal, or containment.
The President shall select a remedial action
that is protective of human health and the environment, that is cost effective, and that utilizes
permanent solutions and alternative treatment
technologies or resource recovery technologies
to the maximum extent practicable. If the President selects a remedial action not appropriate
for a preference under this subsection, the President shall publish an explanation as to why a remedial action involving such reductions was not
selected.
(2) The President may select an alternative remedial action meeting the objectives of this
subsection whether or not such action has been
achieved in practice at any other facility or site
that has similar characteristics. In making such
a selection, the President may take into account the degree of support for such remedial
action by parties interested in such site.
(c) Review
If the President selects a remedial action that
results in any hazardous substances, pollutants,
or contaminants remaining at the site, the
President shall review such remedial action no
less often than each 5 years after the initiation
of such remedial action to assure that human
health and the environment are being protected
by the remedial action being implemented. In
addition, if upon such review it is the judgment
of the President that action is appropriate at
such site in accordance with section 9604 or 9606
of this title, the President shall take or require
such action. The President shall report to the
Congress a list of facilities for which such review is required, the results of all such reviews,
and any actions taken as a result of such reviews.
(d) Degree of cleanup
(1) Remedial actions selected under this section or otherwise required or agreed to by the
President under this chapter shall attain a degree of cleanup of hazardous substances, pollutants, and contaminants released into the environment and of control of further release at a
minimum which assures protection of human
health and the environment. Such remedial actions shall be relevant and appropriate under
the circumstances presented by the release or
threatened release of such substance, pollutant,
or contaminant.
(2)(A) With respect to any hazardous substance, pollutant or contaminant that will remain onsite, if—

Page 7727

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(i) any standard, requirement, criteria, or
limitation under any Federal environmental
law, including, but not limited to, the Toxic
Substances Control Act [15 U.S.C. 2601 et seq.],
the Safe Drinking Water Act [42 U.S.C. 300f et
seq.], the Clean Air Act [42 U.S.C. 7401 et seq.],
the Clean Water Act [33 U.S.C. 1251 et seq.],
the Marine Protection, Research and Sanctuaries Act [16 U.S.C. 1431 et seq., 1447 et seq.,
33 U.S.C. 1401 et seq., 2801 et seq.], or the Solid
Waste Disposal Act [42 U.S.C. 6901 et seq.]; or
(ii) any promulgated standard, requirement,
criteria, or limitation under a State environmental or facility siting law that is more
stringent than any Federal standard, requirement, criteria, or limitation, including each
such State standard, requirement, criteria, or
limitation contained in a program approved,
authorized or delegated by the Administrator
under a statute cited in subparagraph (A), and
that has been identified to the President by
the State in a timely manner,
is legally applicable to the hazardous substance
or pollutant or contaminant concerned or is relevant and appropriate under the circumstances
of the release or threatened release of such hazardous substance or pollutant or contaminant,
the remedial action selected under section 9604
of this title or secured under section 9606 of this
title shall require, at the completion of the remedial action, a level or standard of control for
such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard,
requirement, criteria, or limitation. Such remedial action shall require a level or standard of
control which at least attains Maximum Contaminant Level Goals established under the Safe
Drinking Water Act [42 U.S.C. 300f et seq.] and
water quality criteria established under section
304 or 303 of the Clean Water Act [33 U.S.C. 1314,
1313], where such goals or criteria are relevant
and appropriate under the circumstances of the
release or threatened release.
(B)(i) In determining whether or not any water
quality criteria under the Clean Water Act [33
U.S.C. 1251 et seq.] is relevant and appropriate
under the circumstances of the release or
threatened release, the President shall consider
the designated or potential use of the surface or
groundwater, the environmental media affected,
the purposes for which such criteria were developed, and the latest information available.
(ii) For the purposes of this section, a process
for establishing alternate concentration limits
to those otherwise applicable for hazardous constituents in groundwater under subparagraph
(A) may not be used to establish applicable
standards under this paragraph if the process assumes a point of human exposure beyond the
boundary of the facility, as defined at the conclusion of the remedial investigation and feasibility study, except where—
(I) there are known and projected points of
entry of such groundwater into surface water;
and
(II) on the basis of measurements or projections, there is or will be no statistically significant increase of such constituents from
such groundwater in such surface water at the
point of entry or at any point where there is

§ 9621

reason to believe accumulation of constituents
may occur downstream; and
(III) the remedial action includes enforceable measures that will preclude human exposure to the contaminated groundwater at any
point between the facility boundary and all
known and projected points of entry of such
groundwater into surface water
then the assumed point of human exposure may
be at such known and projected points of entry.
(C)(i) Clause (ii) of this subparagraph shall be
applicable only in cases where, due to the President’s selection, in compliance with subsection
(b)(1), of a proposed remedial action which does
not permanently and significantly reduce the
volume, toxicity, or mobility of hazardous substances, pollutants, or contaminants, the proposed disposition of waste generated by or associated with the remedial action selected by the
President is land disposal in a State referred to
in clause (ii).
(ii) Except as provided in clauses (iii) and (iv),
a State standard, requirement, criteria, or limitation (including any State siting standard or
requirement) which could effectively result in
the statewide prohibition of land disposal of hazardous substances, pollutants, or contaminants
shall not apply.
(iii) Any State standard, requirement, criteria, or limitation referred to in clause (ii)
shall apply where each of the following conditions is met:
(I) The State standard, requirement, criteria, or limitation is of general applicability
and was adopted by formal means.
(II) The State standard, requirement, criteria, or limitation was adopted on the basis
of hydrologic, geologic, or other relevant considerations and was not adopted for the purpose of precluding onsite remedial actions or
other land disposal for reasons unrelated to
protection of human health and the environment.
(III) The State arranges for, and assures payment of the incremental costs of utilizing, a
facility for disposition of the hazardous substances, pollutants, or contaminants concerned.
(iv) Where the remedial action selected by the
President does not conform to a State standard
and the State has initiated a law suit against
the Environmental Protection Agency prior to
May 1, 1986, to seek to have the remedial action
conform to such standard, the President shall
conform the remedial action to the State standard. The State shall assure the availability of an
offsite facility for such remedial action.
(3) In the case of any removal or remedial action involving the transfer of any hazardous substance or pollutant or contaminant offsite, such
hazardous substance or pollutant or contaminant shall only be transferred to a facility
which is operating in compliance with section
3004 and 3005 of the Solid Waste Disposal Act [42
U.S.C. 6924, 6925] (or, where applicable, in compliance with the Toxic Substances Control Act
[15 U.S.C. 2601 et seq.] or other applicable Federal law) and all applicable State requirements.
Such substance or pollutant or contaminant
may be transferred to a land disposal facility

§ 9621

TITLE 42—THE PUBLIC HEALTH AND WELFARE

only if the President determines that both of
the following requirements are met:
(A) The unit to which the hazardous substance or pollutant or contaminant is transferred is not releasing any hazardous waste, or
constituent thereof, into the groundwater or
surface water or soil.
(B) All such releases from other units at the
facility are being controlled by a corrective
action program approved by the Administrator under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.].
The President shall notify the owner or operator
of such facility of determinations under this
paragraph.
(4) The President may select a remedial action
meeting the requirements of paragraph (1) that
does not attain a level or standard of control at
least equivalent to a legally applicable or relevant and appropriate standard, requirement,
criteria, or limitation as required by paragraph
(2) (including subparagraph (B) thereof), if the
President finds that—
(A) the remedial action selected is only part
of a total remedial action that will attain
such level or standard of control when completed;
(B) compliance with such requirement at
that facility will result in greater risk to
human health and the environment than alternative options;
(C) compliance with such requirements is
technically impracticable from an engineering
perspective;
(D) the remedial action selected will attain
a standard of performance that is equivalent
to that required under the otherwise applicable standard, requirement, criteria, or limitation, through use of another method or approach;
(E) with respect to a State standard, requirement, criteria, or limitation, the State has
not consistently applied (or demonstrated the
intention to consistently apply) the standard,
requirement, criteria, or limitation in similar
circumstances at other remedial actions within the State; or
(F) in the case of a remedial action to be undertaken solely under section 9604 of this title
using the Fund, selection of a remedial action
that attains such level or standard of control
will not provide a balance between the need
for protection of public health and welfare and
the environment at the facility under consideration, and the availability of amounts from
the Fund to respond to other sites which
present or may present a threat to public
health or welfare or the environment, taking
into consideration the relative immediacy of
such threats.
The President shall publish such findings, together with an explanation and appropriate documentation.
(e) Permits and enforcement
(1) No Federal, State, or local permit shall be
required for the portion of any removal or remedial action conducted entirely onsite, where
such remedial action is selected and carried out
in compliance with this section.

Page 7728

(2) A State may enforce any Federal or State
standard, requirement, criteria, or limitation to
which the remedial action is required to conform under this chapter in the United States
district court for the district in which the facility is located. Any consent decree shall require
the parties to attempt expeditiously to resolve
disagreements concerning implementation of
the remedial action informally with the appropriate Federal and State agencies. Where the
parties agree, the consent decree may provide
for administrative enforcement. Each consent
decree shall also contain stipulated penalties for
violations of the decree in an amount not to exceed $25,000 per day, which may be enforced by
either the President or the State. Such stipulated penalties shall not be construed to impair
or affect the authority of the court to order
compliance with the specific terms of any such
decree.
(f) State involvement
(1) The President shall promulgate regulations
providing for substantial and meaningful involvement by each State in initiation, development, and selection of remedial actions to be
undertaken in that State. The regulations, at a
minimum, shall include each of the following:
(A) State involvement in decisions whether
to perform a preliminary assessment and site
inspection.
(B) Allocation of responsibility for hazard
ranking system scoring.
(C) State concurrence in deleting sites from
the National Priorities List.
(D) State participation in the long-term
planning process for all remedial sites within
the State.
(E) A reasonable opportunity for States to
review and comment on each of the following:
(i) The remedial investigation and feasibility study and all data and technical documents leading to its issuance.
(ii) The planned remedial action identified
in the remedial investigation and feasibility
study.
(iii) The engineering design following selection of the final remedial action.
(iv) Other technical data and reports relating to implementation of the remedy.
(v) Any proposed finding or decision by the
President to exercise the authority of subsection (d)(4).
(F) Notice to the State of negotiations with
potentially responsible parties regarding the
scope of any response action at a facility in
the State and an opportunity to participate in
such negotiations and, subject to paragraph
(2), be a party to any settlement.
(G) Notice to the State and an opportunity
to comment on the President’s proposed plan
for remedial action as well as on alternative
plans under consideration. The President’s
proposed decision regarding the selection of
remedial action shall be accompanied by a response to the comments submitted by the
State, including an explanation regarding any
decision under subsection (d)(4) on compliance
with promulgated State standards. A copy of
such response shall also be provided to the
State.

Page 7729

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(H) Prompt notice and explanation of each
proposed action to the State in which the facility is located.
Prior to the promulgation of such regulations,
the President shall provide notice to the State
of negotiations with potentially responsible parties regarding the scope of any response action
at a facility in the State, and such State may
participate in such negotiations and, subject to
paragraph (2), any settlements.
(2)(A) This paragraph shall apply to remedial
actions secured under section 9606 of this title.
At least 30 days prior to the entering of any consent decree, if the President proposes to select a
remedial action that does not attain a legally
applicable or relevant and appropriate standard,
requirement, criteria, or limitation, under the
authority of subsection (d)(4), the President
shall provide an opportunity for the State to
concur or not concur in such selection. If the
State concurs, the State may become a signatory to the consent decree.
(B) If the State does not concur in such selection, and the State desires to have the remedial
action conform to such standard, requirement,
criteria, or limitation, the State shall intervene
in the action under section 9606 of this title before entry of the consent decree, to seek to have
the remedial action so conform. Such intervention shall be a matter of right. The remedial action shall conform to such standard, requirement, criteria, or limitation if the State establishes, on the administrative record, that the
finding of the President was not supported by
substantial evidence. If the court determines
that the remedial action shall conform to such
standard, requirement, criteria, or limitation,
the remedial action shall be so modified and the
State may become a signatory to the decree. If
the court determines that the remedial action
need not conform to such standard, requirement, criteria, or limitation, and the State pays
or assures the payment of the additional costs
attributable to meeting such standard, requirement, criteria, or limitation, the remedial action shall be so modified and the State shall become a signatory to the decree.
(C) The President may conclude settlement
negotiations with potentially responsible parties without State concurrence.
(3)(A) This paragraph shall apply to remedial
actions at facilities owned or operated by a department, agency, or instrumentality of the
United States. At least 30 days prior to the publication of the President’s final remedial action
plan, if the President proposes to select a remedial action that does not attain a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation, under the authority of subsection (d)(4), the President shall
provide an opportunity for the State to concur
or not concur in such selection. If the State concurs, or does not act within 30 days, the remedial action may proceed.
(B) If the State does not concur in such selection as provided in subparagraph (A), and desires
to have the remedial action conform to such
standard, requirement, criteria, or limitation,
the State may maintain an action as follows:
(i) If the President has notified the State of
selection of such a remedial action, the State

§ 9621

may bring an action within 30 days of such notification for the sole purpose of determining
whether the finding of the President is supported by substantial evidence. Such action
shall be brought in the United States district
court for the district in which the facility is
located.
(ii) If the State establishes, on the administrative record, that the President’s finding is
not supported by substantial evidence, the remedial action shall be modified to conform to
such standard, requirement, criteria, or limitation.
(iii) If the State fails to establish that the
President’s finding was not supported by substantial evidence and if the State pays, within
60 days of judgment, the additional costs attributable to meeting such standard, requirement, criteria, or limitation, the remedial action shall be selected to meet such standard,
requirement, criteria, or limitation. If the
State fails to pay within 60 days, the remedial
action selected by the President shall proceed
through completion.
(C) Nothing in this section precludes, and the
court shall not enjoin, the Federal agency from
taking any remedial action unrelated to or not
inconsistent with such standard, requirement,
criteria, or limitation.
(Pub. L. 96–510, title I, § 121, as added Pub. L.
99–499, title I, § 121(a), Oct. 17, 1986, 100 Stat.
1672.)
Editorial Notes
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsecs.
(b)(1)(B) and (d)(2)(A)(i), (3)(B), is title II of Pub. L.
89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally
by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2795, which
is classified generally to chapter 82 (§ 6901 et seq.) of
this title. Subtitle C of the Solid Waste Disposal Act is
classified generally to subchapter III (§ 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.
This chapter, referred to in subsecs. (d)(1) and (e)(2),
was in the original ‘‘this Act’’, meaning Pub. L. 96–510,
Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code,
see Short Title note set out under section 9601 of this
title and Tables.
The Toxic Substances Control Act, referred to in subsec. (d)(2)(A)(i), (3), is Pub. L. 94–469, Oct. 11, 1976, 90
Stat. 2003, which is classified generally to chapter 53
(§ 2601 et seq.) of Title 15, Commerce and Trade. For
complete classification of this Act to the Code, see
Short Title note set out under section 2601 of Title 15
and Tables.
The Safe Drinking Water Act, referred to in subsec.
(d)(2)(A), is title XIV of act July 1, 1944, as added Dec.
16, 1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660, which is classified generally to subchapter XII (§ 300f et seq.) of
chapter 6A of this title. For complete classification of
this Act to the Code, see Short Title note set out under
section 201 of this title and Tables.
The Clean Air Act, referred to in subsec. (d)(2)(A)(i),
is act July 14, 1955, ch. 360, 69 Stat. 322, which is classified generally to chapter 85 (§ 7401 et seq.) of this title.
For complete classification of this Act to the Code, see
Short Title note set out under section 7401 of this title
and Tables.

§ 9622

TITLE 42—THE PUBLIC HEALTH AND WELFARE

The Clean Water Act, referred to in subsec.
(d)(2)(A)(i), (B)(i), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat.
816, also known as the Federal Water Pollution Control
Act, which is classified generally to chapter 26 (§ 1251 et
seq.) of Title 33, Navigation and Navigable Waters. For
complete classification of this Act to the Code, see
Short Title note set out under section 1251 of Title 33
and Tables.
The Marine Protection, Research and Sanctuaries
Act, referred to in subsec. (d)(2)(A)(i), probably means
the Marine Protection, Research and Sanctuaries Act
of 1972, Pub. L. 92–532, Oct. 23, 1972, 86 Stat. 1052, which
enacted chapters 32 (§ 1431 et seq.) and 32A (§ 1447 et
seq.) of Title 16, Conservation, and chapters 27 (§ 1401 et
seq.) and 41 (§ 2801 et seq.) of Title 33. For complete classification of this Act to the Code, see Short Title note
set out under section 1401 of Title 33 and Tables.
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE
Pub. L. 99–499, title I, § 121(b), Oct. 17, 1986, 100 Stat.
1678, provided that: ‘‘With respect to section 121 of
CERCLA [this section], as added by this section—
‘‘(1) The requirements of section 121 of CERCLA
shall not apply to any remedial action for which the
Record of Decision (hereinafter in this section referred to as the ‘ROD’) was signed, or the consent decree was lodged, before date of enactment [Oct. 17,
1986].
‘‘(2) If the ROD was signed, or the consent decree
lodged, within the 30-day period immediately following enactment of the Act [Oct. 17, 1986], the Administrator shall certify in writing that the portion
of the remedial action covered by the ROD or consent
decree complies to the maximum extent practicable
with section 121 of CERCLA.
Any ROD signed before enactment of this Act [Oct. 17,
1986] and reopened after enactment of this Act to modify or supplement the selection of remedy shall be subject to the requirements of section 121 of CERCLA.’’
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
of law requiring submittal to Congress of any annual,
semiannual, or other regular periodic report listed in
House Document No. 103–7 (in which the report under
subsec. (c) of this section appears to be the report listed
as the 15th item on page 20), see section 3003 of Pub. L.
104–66, as amended, set out as a note under section 1113
of Title 31, Money and Finance.

§ 9622. Settlements
(a) Authority to enter into agreements
The President, in his discretion, may enter
into an agreement with any person (including
the owner or operator of the facility from which
a release or substantial threat of release emanates, or any other potentially responsible person), to perform any response action (including
any action described in section 9604(b) of this
title) if the President determines that such action will be done properly by such person. Whenever practicable and in the public interest, as
determined by the President, the President shall
act to facilitate agreements under this section
that are in the public interest and consistent
with the National Contingency Plan in order to
expedite effective remedial actions and minimize litigation. If the President decides not to
use the procedures in this section, the President
shall notify in writing potentially responsible
parties at the facility of such decision and the
reasons why use of the procedures is inappro-

Page 7730

priate. A decision of the President to use or not
to use the procedures in this section is not subject to judicial review.
(b) Agreements with potentially responsible parties
(1) Mixed funding
An agreement under this section may provide that the President will reimburse the parties to the agreement from the Fund, with interest, for certain costs of actions under the
agreement that the parties have agreed to perform but which the President has agreed to finance. In any case in which the President provides such reimbursement, the President shall
make all reasonable efforts to recover the
amount of such reimbursement under section
9607 of this title or under other relevant authorities.
(2) Reviewability
The President’s decisions regarding the
availability of fund financing under this subsection shall not be subject to judicial review
under subsection (d).
(3) Retention of funds
If, as part of any agreement, the President
will be carrying out any action and the parties
will be paying amounts to the President, the
President may, notwithstanding any other
provision of law, retain and use such amounts
for purposes of carrying out the agreement.
(4) Future obligation of Fund
In the case of a completed remedial action
pursuant to an agreement described in paragraph (1), the Fund shall be subject to an obligation for subsequent remedial actions at the
same facility but only to the extent that such
subsequent actions are necessary by reason of
the failure of the original remedial action.
Such obligation shall be in a proportion equal
to, but not exceeding, the proportion contributed by the Fund for the original remedial action. The Fund’s obligation for such future remedial action may be met through Fund expenditures or through payment, following settlement or enforcement action, by parties who
were not signatories to the original agreement.
(c) Effect of agreement
(1) Liability
Whenever the President has entered into an
agreement under this section, the liability to
the United States under this chapter of each
party to the agreement, including any future
liability to the United States, arising from the
release or threatened release that is the subject of the agreement shall be limited as provided in the agreement pursuant to a covenant
not to sue in accordance with subsection (f). A
covenant not to sue may provide that future
liability to the United States of a settling potentially responsible party under the agreement may be limited to the same proportion
as that established in the original settlement
agreement. Nothing in this section shall limit
or otherwise affect the authority of any court
to review in the consent decree process under
subsection (d) any covenant not to sue con-

Page 7731

TITLE 42—THE PUBLIC HEALTH AND WELFARE

tained in an agreement under this section. In
determining the extent to which the liability
of parties to an agreement shall be limited
pursuant to a covenant not to sue, the President shall be guided by the principle that a
more complete covenant not to sue shall be
provided for a more permanent remedy undertaken by such parties.
(2) Actions against other persons
If an agreement has been entered into under
this section, the President may take any action under section 9606 of this title against
any person who is not a party to the agreement, once the period for submitting a proposal under subsection (e)(2)(B) has expired.
Nothing in this section shall be construed to
affect either of the following:
(A) The liability of any person under section 9606 or 9607 of this title with respect to
any costs or damages which are not included
in the agreement.
(B) The authority of the President to
maintain an action under this chapter
against any person who is not a party to the
agreement.
(d) Enforcement
(1) Cleanup agreements
(A) Consent decree
Whenever the President enters into an
agreement under this section with any potentially responsible party with respect to
remedial action under section 9606 of this
title, following approval of the agreement by
the Attorney General, except as otherwise
provided in the case of certain administrative settlements referred to in subsection
(g), the agreement shall be entered in the appropriate United States district court as a
consent decree. The President need not
make any finding regarding an imminent
and substantial endangerment to the public
health or the environment in connection
with any such agreement or consent decree.
(B) Effect
The entry of any consent decree under this
subsection shall not be construed to be an
acknowledgment by the parties that the release or threatened release concerned constitutes an imminent and substantial
endangerment to the public health or welfare or the environment. Except as otherwise provided in the Federal Rules of Evidence, the participation by any party in the
process under this section shall not be considered an admission of liability for any purpose, and the fact of such participation shall
not be admissible in any judicial or administrative proceeding, including a subsequent
proceeding under this section.
(C) Structure
The President may fashion a consent decree so that the entering of such decree and
compliance with such decree or with any determination or agreement made pursuant to
this section shall not be considered an admission of liability for any purpose.

§ 9622

(2) Public participation
(A) Filing of proposed judgment
At least 30 days before a final judgment is
entered under paragraph (1), the proposed
judgment shall be filed with the court.
(B) Opportunity for comment
The Attorney General shall provide an opportunity to persons who are not named as
parties to the action to comment on the proposed judgment before its entry by the court
as a final judgment. The Attorney General
shall consider, and file with the court, any
written comments, views, or allegations relating to the proposed judgment. The Attorney General may withdraw or withhold its
consent to the proposed judgment if the
comments, views, and allegations concerning the judgment disclose facts or considerations which indicate that the proposed
judgment is inappropriate, improper, or inadequate.
(3) 9604(b) agreements
Whenever the President enters into an
agreement under this section with any potentially responsible party with respect to action
under section 9604(b) of this title, the President shall issue an order or enter into a decree
setting forth the obligations of such party.
The United States district court for the district in which the release or threatened release occurs may enforce such order or decree.
(e) Special notice procedures
(1) Notice
Whenever the President determines that a
period of negotiation under this subsection
would facilitate an agreement with potentially responsible parties for taking response
action (including any action described in section 9604(b) of this title) and would expedite
remedial action, the President shall so notify
all such parties and shall provide them with
information concerning each of the following:
(A) The names and addresses of potentially
responsible parties (including owners and operators and other persons referred to in section 9607(a) of this title), to the extent such
information is available.
(B) To the extent such information is
available, the volume and nature of substances contributed by each potentially responsible party identified at the facility.
(C) A ranking by volume of the substances
at the facility, to the extent such information is available.
The President shall make the information referred to in this paragraph available in advance of notice under this paragraph upon the
request of a potentially responsible party in
accordance with procedures provided by the
President. The provisions of subsection (e) of
section 9604 of this title regarding protection
of confidential information apply to information provided under this paragraph. Disclosure
of information generated by the President
under this section to persons other than the
Congress, or any duly authorized Committee
thereof, is subject to other privileges or protections provided by law, including (but not

§ 9622

TITLE 42—THE PUBLIC HEALTH AND WELFARE

limited to) those applicable to attorney work
product. Nothing contained in this paragraph
or in other provisions of this chapter shall be
construed, interpreted, or applied to diminish
the required disclosure of information under
other provisions of this or other Federal or
State laws.
(2) Negotiation
(A) Moratorium
Except as provided in this subsection, the
President may not commence action under
section 9604(a) of this title or take any action under section 9606 of this title for 120
days after providing notice and information
under this subsection with respect to such
action. Except as provided in this subsection, the President may not commence a
remedial investigation and feasibility study
under section 9604(b) of this title for 90 days
after providing notice and information under
this subsection with respect to such action.
The President may commence any additional studies or investigations authorized
under section 9604(b) of this title, including
remedial design, during the negotiation period.
(B) Proposals
Persons receiving notice and information
under paragraph (1) of this subsection with
respect to action under section 9606 of this
title shall have 60 days from the date of receipt of such notice to make a proposal to
the President for undertaking or financing
the action under section 9606 of this title.
Persons receiving notice and information
under paragraph (1) of this subsection with
respect to action under section 9604(b) of this
title shall have 60 days from the date of receipt of such notice to make a proposal to
the President for undertaking or financing
the action under section 9604(b) of this title.
(C) Additional parties
If an additional potentially responsible
party is identified during the negotiation period or after an agreement has been entered
into under this subsection concerning a release or threatened release, the President
may bring the additional party into the negotiation or enter into a separate agreement
with such party.
(3) Preliminary allocation of responsibility
(A) In general
The President shall develop guidelines for
preparing nonbinding preliminary allocations of responsibility. In developing these
guidelines the President may include such
factors as the President considers relevant,
such as: volume, toxicity, mobility, strength
of evidence, ability to pay, litigative risks,
public interest considerations, precedential
value, and inequities and aggravating factors. When it would expedite settlements
under this section and remedial action, the
President may, after completion of the remedial investigation and feasibility study,
provide a nonbinding preliminary allocation
of responsibility which allocates percentages
of the total cost of response among potentially responsible parties at the facility.

Page 7732

(B) Collection of information
To collect information necessary or appropriate for performing the allocation under
subparagraph (A) or for otherwise implementing this section, the President may by
subpoena require the attendance and testimony of witnesses and the production of reports, papers, documents, answers to questions, and other information that the President deems necessary. Witnesses shall be
paid the same fees and mileage that are paid
witnesses in the courts of the United States.
In the event of contumacy or failure or refusal of any person to obey any such subpoena, any district court of the United
States in which venue is proper shall have
jurisdiction to order any such person to
comply with such subpoena. Any failure to
obey such an order of the court is punishable
by the court as a contempt thereof.
(C) Effect
The nonbinding preliminary allocation of
responsibility shall not be admissible as evidence in any proceeding, and no court shall
have jurisdiction to review the nonbinding
preliminary allocation of responsibility. The
nonbinding preliminary allocation of responsibility shall not constitute an apportionment or other statement on the divisibility
of harm or causation.
(D) Costs
The costs incurred by the President in producing the nonbinding preliminary allocation of responsibility shall be reimbursed by
the potentially responsible parties whose
offer is accepted by the President. Where an
offer under this section is not accepted, such
costs shall be considered costs of response.
(E) Decision to reject offer
Where the President, in his discretion, has
provided a nonbinding preliminary allocation of responsibility and the potentially responsible parties have made a substantial
offer providing for response to the President
which he rejects, the reasons for the rejection shall be provided in a written explanation. The President’s decision to reject
such an offer shall not be subject to judicial
review.
(4) Failure to propose
If the President determines that a good faith
proposal for undertaking or financing action
under section 9606 of this title has not been
submitted within 60 days of the provision of
notice pursuant to this subsection, the President may thereafter commence action under
section 9604(a) of this title or take an action
against any person under section 9606 of this
title. If the President determines that a good
faith proposal for undertaking or financing action under section 9604(b) of this title has not
been submitted within 60 days after the provision of notice pursuant to this subsection, the
President may thereafter commence action
under section 9604(b) of this title.
(5) Significant threats
Nothing in this subsection shall limit the
President’s authority to undertake response or

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

enforcement action regarding a significant
threat to public health or the environment
within the negotiation period established by
this subsection.
(6) Inconsistent response action
When either the President, or a potentially
responsible party pursuant to an administrative order or consent decree under this chapter, has initiated a remedial investigation and
feasibility study for a particular facility under
this chapter, no potentially responsible party
may undertake any remedial action at the facility unless such remedial action has been authorized by the President.
(f) Covenant not to sue
(1) Discretionary covenants
The President may, in his discretion, provide any person with a covenant not to sue
concerning any liability to the United States
under this chapter, including future liability,
resulting from a release or threatened release
of a hazardous substance addressed by a remedial action, whether that action is onsite or
offsite, if each of the following conditions is
met:
(A) The covenant not to sue is in the public interest.
(B) The covenant not to sue would expedite response action consistent with the National Contingency Plan under section 9605
of this title.
(C) The person is in full compliance with a
consent decree under section 9606 of this
title (including a consent decree entered
into in accordance with this section) for response to the release or threatened release
concerned.
(D) The response action has been approved
by the President.
(2) Special covenants not to sue
In the case of any person to whom the President is authorized under paragraph (1) of this
subsection to provide a covenant not to sue,
for the portion of remedial action—
(A) which involves the transport and secure disposition offsite of hazardous substances in a facility meeting the requirements of sections 6924(c), (d), (e), (f), (g), (m),
(o), (p), (u), and (v) and 6925(c) of this title,
where the President has rejected a proposed
remedial action that is consistent with the
National Contingency Plan that does not include such offsite disposition and has thereafter required offsite disposition; or
(B) which involves the treatment of hazardous substances so as to destroy, eliminate, or permanently immobilize the hazardous constituents of such substances, such
that, in the judgment of the President, the
substances no longer present any current or
currently foreseeable future significant risk
to public health, welfare or the environment, no byproduct of the treatment or destruction process presents any significant
hazard to public health, welfare or the environment, and all byproducts are themselves
treated, destroyed, or contained in a manner
which assures that such byproducts do not
present any current or currently foreseeable

§ 9622

future significant risk to public health, welfare or the environment,
the President shall provide such person with a
covenant not to sue with respect to future liability to the United States under this chapter
for a future release or threatened release of
hazardous substances from such facility, and a
person provided such covenant not to sue shall
not be liable to the United States under section 9606 or 9607 of this title with respect to
such release or threatened release at a future
time.
(3) Requirement that remedial action be completed
A covenant not to sue concerning future liability to the United States shall not take effect until the President certifies that remedial
action has been completed in accordance with
the requirements of this chapter at the facility that is the subject of such covenant.
(4) Factors
In assessing the appropriateness of a covenant not to sue under paragraph (1) and any
condition to be included in a covenant not to
sue under paragraph (1) or (2), the President
shall consider whether the covenant or condition is in the public interest on the basis of
such factors as the following:
(A) The effectiveness and reliability of the
remedy, in light of the other alternative
remedies considered for the facility concerned.
(B) The nature of the risks remaining at
the facility.
(C) The extent to which performance
standards are included in the order or decree.
(D) The extent to which the response action provides a complete remedy for the facility, including a reduction in the hazardous nature of the substances at the facility.
(E) The extent to which the technology
used in the response action is demonstrated
to be effective.
(F) Whether the Fund or other sources of
funding would be available for any additional remedial actions that might eventually be necessary at the facility.
(G) Whether the remedial action will be
carried out, in whole or in significant part,
by the responsible parties themselves.
(5) Satisfactory performance
Any covenant not to sue under this subsection shall be subject to the satisfactory
performance by such party of its obligations
under the agreement concerned.
(6) Additional condition for future liability
(A) Except for the portion of the remedial
action which is subject to a covenant not to
sue under paragraph (2) or under subsection (g)
(relating to de minimis settlements), a covenant not to sue a person concerning future liability to the United States shall include an
exception to the covenant that allows the
President to sue such person concerning future
liability resulting from the release or threatened release that is the subject of the cov-

§ 9622

TITLE 42—THE PUBLIC HEALTH AND WELFARE

enant where such liability arises out of conditions which are unknown at the time the
President certifies under paragraph (3) that remedial action has been completed at the facility concerned.
(B) In extraordinary circumstances, the
President may determine, after assessment of
relevant factors such as those referred to in
paragraph (4) and volume, toxicity, mobility,
strength of evidence, ability to pay, litigative
risks, public interest considerations, precedential value, and inequities and aggravating factors, not to include the exception referred to
in subparagraph (A) if other terms, conditions,
or requirements of the agreement containing
the covenant not to sue are sufficient to provide all reasonable assurances that public
health and the environment will be protected
from any future releases at or from the facility.
(C) The President is authorized to include
any provisions allowing future enforcement
action under section 9606 or 9607 of this title
that in the discretion of the President are necessary and appropriate to assure protection of
public health, welfare, and the environment.
(g) De minimis settlements
(1) Expedited final settlement
Whenever practicable and in the public interest, as determined by the President, the
President shall as promptly as possible reach
a final settlement with a potentially responsible party in an administrative or civil action
under section 9606 or 9607 of this title if such
settlement involves only a minor portion of
the response costs at the facility concerned
and, in the judgment of the President, the conditions in either of the following subparagraph
(A) or (B) are met:
(A) Both of the following are minimal in
comparison to other hazardous substances at
the facility:
(i) The amount of the hazardous substances contributed by that party to the
facility.
(ii) The toxic or other hazardous effects
of the substances contributed by that
party to the facility.
(B) The potentially responsible party—
(i) is the owner of the real property on or
in which the facility is located;
(ii) did not conduct or permit the generation, transportation, storage, treatment,
or disposal of any hazardous substance at
the facility; and
(iii) did not contribute to the release or
threat of release of a hazardous substance
at the facility through any action or omission.
This subparagraph (B) does not apply if the
potentially responsible party purchased the
real property with actual or constructive
knowledge that the property was used for
the generation, transportation, storage,
treatment, or disposal of any hazardous substance.
(2) Covenant not to sue
The President may provide a covenant not
to sue with respect to the facility concerned

Page 7734

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).
(3) Expedited agreement
The President shall reach any such settlement or grant any such covenant not to sue as
soon as possible after the President has available the information necessary to reach such a
settlement or grant such a covenant.
(4) Consent decree or administrative order
A settlement under this subsection shall be
entered as a consent decree or embodied in an
administrative order setting forth the terms
of the settlement. In the case of any facility
where the total response costs exceed $500,000
(excluding interest), if the settlement is embodied as an administrative order, the order
may be issued only with the prior written approval of the Attorney General. If the Attorney General or his designee has not approved
or disapproved the order within 30 days of this
referral, the order shall be deemed to be approved unless the Attorney General and the
Administrator have agreed to extend the time.
The district court for the district in which the
release or threatened release occurs may enforc