Authorizing Legislation: Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("Superfund")

Q:\COMP\ENVIR2\CERCLA

COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION, AND LIABILITY ACT OF 1980
‘‘SUPERFUND’’

487
December 31, 2002

Q:\COMP\ENVIR2\CERCLA

December 31, 2002

Q:\COMP\ENVIR2\CERCLA

[As Amended Through P.L. 107–377, December 31, 2002]
TABLE OF CONTENTS FOR COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY
ACT OF 1980 (SUPERFUND) 1

Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.

TITLE I—HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
101. Definitions.
102. Reportable quantities and additional designations.
103. Notices, penalties.
104. Response authorities.
105. National contingency plan.
106. Abatement action.
107. Liability.
108. Financial responsibility.
109. Civil penalties and awards.
110. Employee protection.
111. Uses of fund.
112. Claims procedure.
113. Litigation, jurisdiction and venue.
114. Relationship to other law.
115. Authority to delegate, issue regulations.
116. Schedules.
117. Public participation.
118. High priority for drinking water supplies.
119. Response action contractors.
120. Federal facilities.
121. Cleanup standards.
122. Settlements.
123. Reimbursement to local governments.
124. Methane recovery.
125. Section 3001(b)(3)(A)(i) waste.
126. Indian tribes.
127. Recycling transactions.
128. State response programs.

TITLE II—HAZARDOUS SUBSTANCE RESPONSE REVENUE ACT OF 1980
Sec. 201. Short title; amendment of 1954 Code.
Subtitle A—Imposition of Taxes on Petroleum and Certain Chemicals
*

*

*

*

*

*

*

Subtitle B—øRepealed¿
Subtitle C—øRepealed¿
TITLE III—MISCELLANEOUS PROVISIONS
Sec. 301. Reports and studies.
Sec. 302. Effective dates, savings provision.
Sec. 303. Expiration, sunset provision.
1 This table of contents is not part of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 but is set forth for the convenience of the users of this publication.

489
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
SUPERFUND

Conforming amendments.
Legislative veto.
Transportation.
Assistant administrator for solid waste.
Separability.
Actions under State law for damages from exposure to hazardous substances.
Sec. 310. Citizens suits.
Sec. 311. Research, development, and demonstration.
Sec. 312. Love Canal property acquisition.

December 31, 2002

Sec.
Sec.
Sec.
Sec.
Sec.
Sec.

304.
305.
306.
307.
308.
309.

Sec.
Sec.
Sec.
Sec.
Sec.

401.
402.
403.
404.
405.

490

TITLE IV—POLLUTION INSURANCE
Definitions.
State laws; scope of title.
Risk retention groups.
Purchasing groups.
Applicability of securities laws.

Q:\COMP\ENVIR2\CERCLA

COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (SUPERFUND) 1
AN ACT To provide for liability, compensation, cleanup, and emergency response for
hazardous substances released into the environment and the cleanup of inactive
hazardous waste disposal sites.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may
be cited as the ‘‘Comprehensive Environmental Response, Compensation, and Liability Act of 1980’’.
TITLE I—HAZARDOUS SUBSTANCES RELEASES, LIABILITY,
COMPENSATION
DEFINITIONS

SEC. 101. For purpose of this title—
(1) The term ‘‘act of God’’ means an unanticipated grave
natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of
which could not have been prevented or avoided by the exercise
of due care or foresight.
(2) The term ‘‘Administrator’’ means the Administrator of
the United States Environmental Protection Agency.
(3) The term ‘‘barrel’’ means forty-two United States gallons at sixty degrees Fahrenheit.
(4) The term ‘‘claim’’ means a demand in writing for a sum
certain.
(5) The term ‘‘claimant’’ means any person who presents a
claim for compensation under this Act.
(6) The term ‘‘damages’’ means damages for injury or loss
of natural resources as set forth in section 107(a) or 111(b) of
this Act.
(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) 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 Fishery Conservation and Management Act of 1976, 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.
1 The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9601–9675), commonly known as ‘‘Superfund,’’ consists of Public Law 96–510 (Dec. 11,
1980) and the amendments made by subsequent enactments.

491
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 101

SUPERFUND

492

(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, (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, (E) releases in compliance with a legally enforceable final permit issued pursuant to section 3005 (a) through
(d) of the Solid Waste Disposal Act from a hazardous waste
treatment, storage, or disposal facility when such permit specifically identifies the hazardous substances and makes such
substances subject to a standard of practice, control procedure
or bioassay limitation or condition, or other control on the hazardous substances in such releases, (F) any release in compliance with a legally enforceable permit issued under section 102
of 1 section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972, (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, (H) any
emission into the air subject to a permit or control regulation
under section 111, section 112, title I part C, title I part D, or
State implementation plans submitted in accordance with section 110 of the Clean Air Act (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
1 So

December 31, 2002

in law. Probably should be ‘‘or’’.

Q:\COMP\ENVIR2\CERCLA
493

SUPERFUND

Sec. 101

compliance with applicable pretreatment standards of section
307 (b) or (c) of the Clean Water Act and enforceable requirements in a pretreatment program submitted by a State or municipality for Federal approval under section 402 of such Act,
and (K) any release of source, special nuclear, or byproduct
material, as those terms are defined in the Atomic Energy Act
of 1954, 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 Response Fund established by section 221 1
of this Act or, in the case of a hazardous waste disposal facility
for which liability has been transferred under section 107(k) of
this Act, the Post-closure Liability Fund established by section
232 1 of this Act.
(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 Act.
(14) The term ‘‘hazardous substance’’ means (A) any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control Act, (B) any element, compound,
mixture, solution, or substance designated pursuant to section
102 of this Act, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the
Solid Waste Disposal Act (but not including any waste the regulation of which under the Solid Waste Disposal Act has been
suspended by Act of Congress), (D) any toxic pollutant listed
under section 307(a) of the Federal Water Pollution Control
Act, (E) any hazardous air pollutant listed under section 112
of the Clean Air Act, 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. 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 Fishery Conservation and Management Act
of 1976), any State, local government, or any foreign govern1 Sections 221 and 232 were repealed by sections 517(c)(1) and 514(b), repsectively, of Public
Law 99–499.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 101

SUPERFUND

494

ment, any Indian tribe, or, if such resources are subject to a
trust restriction or alienation, any member of an Indian tribe.
(17) The term ‘‘offshore facility’’ means any facility of any
kind located in, on, or under, any of the navigable waters of
the United States, and any facility of any kind which is subject
to the jurisdiction of the United States and is located in, on,
or under any other waters, other than a vessel or a public vessel.
(18) The term ‘‘onshore facility’’ means any facility (including, but not limited to, motor vehicles and rolling stock) of any
kind located in, on, or under, any land or nonnavigable waters
within the United States.
(19) The term ‘‘otherwise subject to the jurisdiction of the
United States’’ means subject to the jurisdiction of the United
States by virtue of United States citizenship, United States
vessel documentation or numbering, or as provided by international agreement to which the United States is a party.
(20)(A) The term ‘‘owner or operator’’ means (i) in the case
of a vessel, any person owning, operating, or chartering by demise, such vessel, (ii) in the case of an onshore facility or an
offshore facility, any person owning or operating such facility,
and (iii) in the case of any facility, title or control of which was
conveyed due to bankruptcy, foreclosure, tax delinquency,
abandonment, or similar means to a unit of State or local government, any person who owned, operated, or otherwise controlled activities at such facility immediately beforehand. Such
term does not include a person, who, without participating in
the management of a vessel or facility, holds indicia of ownership primarily to protect his security interest in the vessel or
facility.
(B) In the case of a hazardous substance which has been
accepted for transportation by a common or contract carrier
and except as provided in section 107(a) (3) or (4) of this Act,
(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 107(a) (3)
or (4) (i) the term ‘‘owner or operator’’ shall not include such
common or contract carrier, and (ii) such common or contract
carrier shall not be considered to have caused or contributed
to any release at such disposal or treatment facility resulting
from circumstances or conditions beyond its control.
(D) The term ‘‘owner or operator’’ does not include a unit
of State or local government which acquired ownership or control involuntarily 1 through seizure or otherwise in connection
1 Section 427 of Public Law 106–74 (113 Stat. 1095) added the phrase ‘‘through seizure or otherwise in connection with law enforcement activity’’ before ‘‘involuntary’’ the first place it appears. It was inserted after ‘‘involuntarily’’ as the probable intent of Congress.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
495

SUPERFUND

Sec. 101

with law enforcement activity through bankruptcy, tax delinquency, abandonment, or other circumstances in which the
government involuntarily acquires title by virtue of its function
as sovereign. The exclusion provided under this paragraph
shall not apply to any State or local government which has
caused or contributed to the release or threatened release of a
hazardous substance from the facility, and such a State or local
government shall be subject to the provisions of this Act in the
same manner and to the same extent, both procedurally and
substantively, as any nongovernmental entity, including liability under section 107.
(E) 1 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 107(d)(1) or under the direction of an on-scene coordinator appointed under
the National Contingency Plan, with respect to
the vessel or facility, or takes any other measure
to preserve, protect, or prepare the vessel or facility prior to sale or disposition,
if the person seeks to sell, re-lease (in the case of a
lease finance transaction), or otherwise divest the person of the vessel or facility at the earliest practicable,
commercially reasonable time, on commercially reasonable terms, taking into account market conditions
and legal and regulatory requirements.
(F) PARTICIPATION IN MANAGEMENT.—For purposes of
subparagraph (E)—
(i) the term ‘‘participate in management’’—
(I) means actually participating in the management or operational affairs of a vessel or facility; and
(II) does not include merely having the capacity to influence, or the unexercised right to control, vessel or facility operations;
(ii) a person that is a lender and that holds indicia
of ownership primarily to protect a security interest in
a vessel or facility shall be considered to participate in
1 So

December 31, 2002

in law. Indentation of subparagraphs (E) through (G) is incorrect.

Q:\COMP\ENVIR2\CERCLA
Sec. 101

SUPERFUND

496

management only if, while the borrower is still in possession of the vessel or facility encumbered by the security interest, the person—
(I) exercises decisionmaking control over the
environmental compliance related to the vessel or
facility, such that the person has undertaken responsibility for the hazardous substance handling
or disposal practices related to the vessel or facility; or
(II) exercises control at a level comparable to
that of a manager of the vessel or facility, such
that the person has assumed or manifested
responsibility—
(aa) for the overall management of the
vessel or facility encompassing day-to-day decisionmaking with respect to environmental
compliance; or
(bb) over all or substantially all of the
operational functions (as distinguished from
financial or administrative functions) of the
vessel or facility other than the function of environmental compliance;
(iii) the term ‘‘participate in management’’ does
not include performing an act or failing to act prior to
the time at which a security interest is created in a
vessel or facility; and
(iv) the term ‘‘participate in management’’ does
not include—
(I) holding a security interest or abandoning
or releasing a security interest;
(II) including in the terms of an extension of
credit, or in a contract or security agreement relating to the extension, a covenant, warranty, or
other term or condition that relates to environmental compliance;
(III) monitoring or enforcing the terms and
conditions of the extension of credit or security interest;
(IV) monitoring or undertaking 1 or more inspections of the vessel or facility;
(V) requiring a response action or other lawful
means of addressing the release or threatened release of a hazardous substance in connection with
the vessel or facility prior to, during, or on the expiration of the term of the extension of credit;
(VI) providing financial or other advice or
counseling in an effort to mitigate, prevent, or
cure default or diminution in the value of the vessel or facility;
(VII) restructuring, renegotiating, or otherwise agreeing to alter the terms and conditions of
the extension of credit or security interest, exercising forbearance;
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
497

SUPERFUND

Sec. 101

(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 107(d) or under the direction of an on-scene
coordinator appointed under the National Contingency Plan,
if the actions do not rise to the level of participating
in management (within the meaning of clauses (i) and
(ii)).
(G) OTHER TERMS.—As used in this Act:
(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 3 of the Federal Deposit Insurance Act (12 U.S.C. 1813) 1 or with regulations
issued by the National Credit Union Administration Board, as appropriate.
(ii) FINANCIAL OR ADMINISTRATIVE FUNCTION.—The
term ‘‘financial or administrative function’’ includes a
function such as that of a credit manager, accounts
payable officer, accounts receivable officer, personnel
manager, comptroller, or chief financial officer, or a
similar function.
(iii) FORECLOSURE; FORECLOSE.—The terms ‘‘foreclosure’’ and ‘‘foreclose’’ mean, respectively, acquiring,
and to acquire, a vessel 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—
1 So

December 31, 2002

in law. Probably should read ‘‘1813))’’.

Q:\COMP\ENVIR2\CERCLA
Sec. 101

SUPERFUND

498

(I) an insured depository institution (as defined in section 3 of the Federal Deposit Insurance
Act (12 U.S.C. 1813));
(II) an insured credit union (as defined in section 101 of the Federal Credit Union Act (12
U.S.C. 1752));
(III) a bank or association chartered under
the Farm Credit Act of 1971 (12 U.S.C. 2001 et
seq.);
(IV) a leasing or trust company that is an affiliate of an insured depository institution;
(V) any person (including a successor or assignee of any such person) that makes a bona fide
extension of credit to or takes or acquires a security interest from a nonaffiliated person;
(VI) the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Agricultural Mortgage Corporation, or any other entity that in a bona fide manner buys or sells loans or interests in loans;
(VII) a person that insures or guarantees
against a default in the repayment of an extension
of credit, or acts as a surety with respect to an extension of credit, to a nonaffiliated person; and
(VIII) a person that provides title insurance
and that acquires a vessel or facility as a result of
assignment or conveyance in the course of underwriting claims and claims settlement.
(v) OPERATIONAL FUNCTION.—The term ‘‘operational function’’ includes a function such as that of a
facility or plant manager, operations manager, chief
operating officer, or chief executive officer.
(vi) SECURITY INTEREST.—The term ‘‘security interest’’ includes a right under a mortgage, deed of
trust, assignment, judgment lien, pledge, security
agreement, factoring agreement, or lease and any
other right accruing to a person to secure the repayment of money, the performance of a duty, or any
other obligation by a nonaffiliated person.
(21) The term ‘‘person’’ means an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality,
commission, political subdivision of a State, or any interstate
body.
(22) The term ‘‘release’’ means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers,
and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes (A) any release which results in exposure to persons solely within a
workplace, with respect to a claim which such persons may assert against the employer of such persons, (B) emissions from
the engine exhaust of a motor vehicle, rolling stock, aircraft,
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
499

SUPERFUND

Sec. 101

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, if such release is subject to requirements with respect
to financial protection established by the Nuclear Regulatory
Commission under section 170 of such Act, or, for the purposes
of section 104 of this title or any other response action, any release of source byproduct, or special nuclear material from any
processing site designated under section 102(a)(1) or 302(a) of
the Uranium Mill Tailings Radiation Control Act of 1978, and
(D) the normal application of fertilizer.
(23) The terms 1 ‘‘remove’’ or ‘‘removal’’ means 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 104(b) of this Act, and any emergency assistance which may be provided under the Disaster
Relief and Emergency Assistance Act. 2
(24) The terms 1 ‘‘remedy’’ or ‘‘remedial action’’ means
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
1 So

in law. Probably should be ‘‘term’’.
2 So in law. Probably should refer to the ‘‘Robert T. Stafford Disaster Relief and Emergency
Assistance Act’’, pursuant to the amendment to the short title of such Act made by section 102
of Public Law 100–707.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 101

SUPERFUND

500

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 1 ‘‘respond’’ or ‘‘response’’ means remove, removal, remedy, and remedial action;, 2 all such terms (including the terms ‘‘removal’’ and ‘‘remedial action’’) include enforcement activities related thereto.
(26) The terms 1 ‘‘transport’’ or ‘‘transportation’’ means the
movement of a hazardous substance by any mode, including a
hazardous liquid pipeline facility (as defined in section
60101(a) of title 49, United States Code), 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.
(30) The terms ‘‘territorial sea’’ and ‘‘contiguous zone’’ shall
have the meaning provided in section 502 of the Federal Water
Pollution Control Act.
(31) The term ‘‘national contingency plan’’ means the national contingency plan published under section 311(c) of the
Federal Water Pollution Control Act or revised pursuant to
section 105 of this Act.
(32) The terms 1 ‘‘liable’’ or ‘‘liability’’ under this title shall
be construed to be the standard of liability which obtains
under section 311 of the Federal Water Pollution Control Act.
(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, behav1 So
2 So

December 31, 2002

in law. Probably should be ‘‘term’’.
in law.

Q:\COMP\ENVIR2\CERCLA
501

SUPERFUND

Sec. 101

ioral 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 107(b)(3) includes, but is not limited to, land
contracts, deeds, easements, leases, or other instruments
transferring title or possession, unless the real property on
which the facility 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 107(b)(3) (a) and (b), 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 acceptDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 101

SUPERFUND

502

ed 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 the date of the enactment of the
Brownfields Revitalization and Environmental Restoration Act of 2001, the Administrator shall by regulation establish standards and practices for the purpose of satisfying the requirement to carry out all appropriate inquiries under clause (i).
(iii) CRITERIA.—In promulgating regulations that
establish the standards and practices referred to in
clause (ii), the Administrator shall include each of the
following:
(I) The results of an inquiry by an environmental professional.
(II) Interviews with past and present owners,
operators, and occupants of the facility for the
purpose of gathering information regarding the
potential for contamination at the facility.
(III) Reviews of historical sources, such as
chain of title documents, aerial photographs,
building department records, and land use
records, to determine previous uses and occupancies of the real property since the property was
first developed.
(IV) Searches for recorded environmental
cleanup liens against the facility that are filed
under Federal, State, or local law.
(V) Reviews of Federal, State, and local government records, waste disposal records, underground storage tank records, and hazardous waste
handling, generation, treatment, disposal, and
spill records, concerning contamination at or near
the facility.
(VI) Visual inspections of the facility and of
adjoining properties.
(VII) Specialized knowledge or experience on
the part of the defendant.
(VIII) The relationship of the purchase price
to the value of the property, if the property was
not contaminated.
(IX) Commonly known or reasonably ascertainable information about the property.
(X) The degree of obviousness of the presence
or likely presence of contamination at the property, and the ability to detect the contamination
by appropriate investigation.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
503

SUPERFUND

Sec. 101

(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 107(b)(3) shall
diminish the liability of any previous owner or operator of such
facility who would otherwise be liable under this Act. 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
107(a)(1) and no defense under section 107(b)(3) shall be available to such defendant.
(D) Nothing in this paragraph shall affect the liability
under this Act 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 reDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 101

SUPERFUND

504

gional 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 114(c), 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 title;
(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 Act;
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
505

SUPERFUND

Sec. 101

(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), 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
the Internal Revenue Code of 1986.
(C) SITE-BY-SITE DETERMINATIONS.—Notwithstanding
subparagraph (B) and on a site-by-site basis, the President
may authorize financial assistance under section 104(k) to
an eligible entity at a site included in clause (i), (iv), (v),
(vi), (viii), or (ix) of subparagraph (B) if the President finds
that financial assistance will protect human health and
the environment, and either promote economic development or enable the creation of, preservation of, or addition
to parks, greenways, undeveloped property, other recreational property, or other property used for nonprofit
purposes.
(D) ADDITIONAL AREAS.—For the purposes of section
104(k), the term ‘‘brownfield site’’ includes a site that—
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 101

SUPERFUND

506

(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 102 of the Controlled Substances
Act (21 U.S.C. 802));
(II)(aa) is contaminated by petroleum or a petroleum product excluded from the definition of ‘‘hazardous substance’’ under section 101; and
(bb) is a site determined by the Administrator or
the State, as appropriate, to be—
(AA) of relatively low risk, as compared with
other petroleum-only sites in the State; and
(BB) a site for which there is no viable responsible party and which will be assessed, investigated, or cleaned up by a person that is not potentially liable for cleaning up the site; and
(cc) is not subject to any order issued under section 9003(h) of the Solid Waste Disposal Act (42 U.S.C.
6991b(h)); or
(III) is mine-scarred land.
(40) BONA FIDE PROSPECTIVE PURCHASER.—The term ‘‘bona
fide prospective purchaser’’ means a person (or a tenant of a
person) that acquires ownership of a facility after the date of
the enactment of this paragraph and that establishes each of
the following by a preponderance of the evidence:
(A) DISPOSAL PRIOR TO ACQUISITION.—All disposal of
hazardous substances at the facility occurred before the
person acquired the facility.
(B) INQUIRIES.—
(i) IN GENERAL.—The person made all appropriate
inquiries into the previous ownership and uses of the
facility in accordance with generally accepted good
commercial and customary standards and practices in
accordance with clauses (ii) and (iii).
(ii) STANDARDS AND PRACTICES.—The standards
and practices referred to in clauses (ii) and (iv) of
paragraph (35)(B) shall be considered to satisfy the requirements of this subparagraph.
(iii) RESIDENTIAL USE.—In the case of property in
residential or other similar use at the time of purchase
by a nongovernmental or noncommercial entity, a facility inspection and title search that reveal no basis
for further investigation shall be considered to satisfy
the requirements of this subparagraph.
(C) NOTICES.—The person provides all legally required
notices with respect to the discovery or release of any hazardous substances at the facility.
(D) CARE.—The person exercises appropriate care with
respect to hazardous substances found at the facility by
taking reasonable steps to—
(i) stop any continuing release;
(ii) prevent any threatened future release; and
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
507

SUPERFUND

Sec. 101

(iii) prevent or limit human, environmental, or
natural resource exposure to any previously released
hazardous substance.
(E) COOPERATION, ASSISTANCE, AND ACCESS.—The person provides full cooperation, assistance, and access to persons that are authorized to conduct response actions or
natural resource restoration at a vessel or facility (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete
or partial response actions or natural resource restoration
at the vessel or facility).
(F) INSTITUTIONAL CONTROL.—The person—
(i) is in compliance with any land use restrictions
established or relied on in connection with the response action at a vessel or facility; and
(ii) does not impede the effectiveness or integrity
of any institutional control employed at the vessel or
facility in connection with a response action.
(G) REQUESTS; SUBPOENAS.—The person complies with
any request for information or administrative subpoena
issued by the President under this Act.
(H) NO AFFILIATION.—The person is not—
(i) potentially liable, or affiliated with any other
person that is potentially liable, for response costs at
a facility through—
(I) any direct or indirect familial relationship;
or
(II) any contractual, corporate, or financial relationship (other than a contractual, corporate, or
financial relationship that is created by the instruments by which title to the facility is conveyed
or financed or by a contract for the sale of goods
or services); or
(ii) the result of a reorganization of a business entity that was potentially liable.
(41) ELIGIBLE RESPONSE SITE.—
(A) IN GENERAL.—The term ‘‘eligible response site’’
means a site that meets the definition of a brownfield site
in subparagraphs (A) and (B) of paragraph (39), as modified by subparagraphs (B) and (C) of this paragraph.
(B) INCLUSIONS.—The term ‘‘eligible response site’’
includes—
(i) notwithstanding paragraph (39)(B)(ix), a portion of a facility, for which portion assistance for response activity has been obtained under subtitle I of
the Solid Waste Disposal Act (42 U.S.C. 6991 et seq.)
from the Leaking Underground Storage Tank Trust
Fund established under section 9508 of the Internal
Revenue Code of 1986; 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 128 at sites specDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 102

SUPERFUND

508

ified in clause (iv), (v), (vi) or (viii) of paragraph
(39)(B) would be appropriate and will—
(I) protect human health and the environment; and
(II) promote economic development or facilitate the creation of, preservation of, or addition to
a park, a greenway, undeveloped property, recreational property, or other property used for nonprofit purposes.
(C) EXCLUSIONS.—The term ‘‘eligible response site’’
does not include—
(i) a facility for which the President—
(I) conducts or has conducted a preliminary
assessment or site inspection; and
(II) after consultation with the State, determines or has determined that the site obtains a
preliminary score sufficient for possible listing on
the National Priorities List, or that the site otherwise qualifies for listing on the National Priorities
List; unless the President has made a determination that no further Federal action will be taken;
or
(ii) facilities that the President determines warrant particular consideration as identified by regulation, such as sites posing a threat to a sole-source
drinking water aquifer or a sensitive ecosystem.
[42 U.S.C. 9601]
REPORTABLE QUANTITIES AND ADDITIONAL DESIGNATIONS

SEC. 102. (a) The Administrator shall promulgate and revise as
may be appropriate, regulations designating as hazardous substances, in addition to those referred to in section 101(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 103 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.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
509

SUPERFUND

Sec. 103

(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 101(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 311(b)(4) of the Federal Water Pollution Control Act, such reportable quantity, shall be deemed that quantity, the release of
which requires notification pursuant to section 103 (a) or (b) of this
title.
[42 U.S.C. 9602]
NOTICES, PENALTIES

SEC. 103. (a) 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 102 of this title, immediately notify the National Response Center established under the
Clean Water Act 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) 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 Fishery Conservation
and Management Act of 1976), 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 102 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 of the United States Code
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) Within one hundred and eighty days after the enactment of
this Act, any person who owns or operates or who at the time of
disposal owned or operated, or who accepted hazardous substances
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 103

SUPERFUND

510

for transport and selected, a facility at which hazardous substances
(as defined in section 101(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, 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 107 of this Act: 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)(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 the date of enactment of this Act, for fifty
years thereafter or for fifty years after the date of establishment
of a record (whichever is later), or at any such earlier time as a
waiver if obtained under paragraph (3) of this subsection, it shall
be unlawful for any such person knowingly to destroy, mutilate,
erase, dispose of, conceal, or otherwise render unavailable or
unreadable or falsify any records identified in paragraph (1) of this
subsection. Any person who violates this paragraph shall, upon
conviction, be fined in accordance with the applicable provisions of
title 18 of the United States Code 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.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
511

SUPERFUND

Sec. 104

(3) At any time prior to the date which occurs fifty years after
the date of enactment of this Act, 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 Act. 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) 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.
(f) 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 or regulations thereunder and which
has been reported to the National Response Center, or
(2) which is a continuous release, stable in quantity and
rate, and is—
(A) from a facility for which notification has been
given under subsection (c) of this section, or
(B) a release of which notification has been given
under subsections (a) and (b) of this section for a period
sufficient to establish the continuity, quantity, and regularity of such release:
Provided, That notification in accordance with subsections (a)
and (b) of this paragraph shall be given for releases subject to
this paragraph annually, or at such time as there is any statistically significant increase in the quantity of any hazardous
substance or constituent thereof released, above that previously reported or occurring.
[42 U.S.C. 9603]
RESPONSE AUTHORITIES

SEC. 104. (a)(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 subDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 104

SUPERFUND

512

stance, 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 122. 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 122) should, to the extent the President deems practicable, contribute to the efficient performance of any long term remedial action with respect to the release or threatened release concerned.
(3) LIMITATIONS ON RESPONSE.—The President shall not provide for a removal or remedial action under this section in response
to a release or threat of release—
(A) of a naturally occurring substance in its unaltered
form, or altered solely through naturally occurring processes or
phenomena, from a location where it is naturally found;
(B) from products which are part of the structure of, and
result in exposure within, residential buildings or business or
community structures; or
(C) into public or private drinking water supplies due to
deterioration of the system through ordinary use.
(4) EXCEPTION TO LIMITATIONS.—Notwithstanding paragraph
(3) of this subsection, to the extent authorized by this section, the
President may respond to any release or threat of release if in the
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)(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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
513

SUPERFUND

Sec. 104

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 Act.
(2) COORDINATION OF INVESTIGATIONS.—The President shall
promptly notify the appropriate Federal and State natural resource
trustees of potential damages to natural resources resulting from
releases under investigation pursuant to this section and shall seek
to coordinate the assessments, investigations, and planning under
this section with such Federal and State trustees.
(c)(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 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
1 So

December 31, 2002

in law. Probably should be followed by a comma.

Q:\COMP\ENVIR2\CERCLA
Sec. 104

SUPERFUND

514

sums expended in response to a release at a facility, that was operated by the State or a political subdivision thereof, either directly
or through a contractual relationship or otherwise, at the time of
any disposal of hazardous substances therein. For the purpose of
clause (ii) of this subparagraph, the term ‘‘facility’’ does not include
navigable waters or the beds underlying those waters. The President shall grant the State a credit against the share of the costs
for which it is responsible under this paragraph for any documented direct out-of-pocket non-Federal funds expended or obligated by the State or a political subdivision thereof after January
1, 1978, and before the date of enactment of this Act for cost-eligible response actions and claims for damages compensable under
section 111 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. 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 121 of this Act (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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
515

SUPERFUND

Sec. 104

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
111.
(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 the date of the enactment of this paragraph.
(E) ITEM-BY-ITEM APPROVAL.—In the case of expenditures
made after the date of the enactment of this paragraph, 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 the Internal Revenue Code of 1954 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 Act.
(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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 104

SUPERFUND

516

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 the enactment of the Superfund Amendments and Reauthorization Act of 1986, the President
shall not provide any remedial actions pursuant to this section unless the State in which the release occurs first enters into a contract or cooperative agreement with the President providing assurances deemed adequate by the President that the State will assure
the availability of hazardous waste treatment or disposal facilities
which—
(A) have adequate capacity for the destruction, treatment,
or secure disposition of all hazardous wastes that are reasonably expected to be generated within the State during the 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.
(d)(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
105(a)(8) 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 the date of the enactment of this subparagraph for response
actions at any site included on the National Priorities List and
subject to a cooperative agreement under this Act shall be reimbursed for the share of costs of such actions for which the
Federal Government is responsible under this Act.
(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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
517

SUPERFUND

Sec. 104

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 title, and to intervene in any civil action involving
the enforcement of such contract or subcontract.
(4) Where two or more noncontiguous facilities are reasonably
related on the basis of geography, or on the basis of the threat, or
potential threat to the public health or welfare or the environment,
the President may, in his discretion, treat these related facilities as
one for purposes of this section.
(e) INFORMATION GATHERING AND ACCESS.—
(1) ACTION AUTHORIZED.—Any officer, employee, or representative of the President, duly designated by the President,
is authorized to take action under paragraph (2), (3), or (4) (or
any combination thereof) at a vessel, facility, establishment,
place, property, or location or, in the case of paragraph (3) or
(4), at any vessel, facility, establishment, place, property, or location which is adjacent to the vessel, facility, establishment,
place, property, or location referred to in such paragraph (3) or
(4). Any duly designated officer, employee, or representative of
a State or political subdivision under a contract or cooperative
agreement under subsection (d)(1) 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
title, or otherwise enforcing the provisions of this title.
(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.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 104

SUPERFUND

518

(3) ENTRY.—Any officer, employee, or representative described in paragraph (1) is authorized to enter at reasonable
times any of the following:
(A) Any vessel, facility, establishment, or other place
or property where any hazardous substance or pollutant or
contaminant may be or has been generated, stored, treated, disposed of, or transported from.
(B) Any vessel, facility, establishment, or other place
or property from which or to which a hazardous substance
or pollutant or contaminant has been or may have been released.
(C) Any vessel, facility, establishment, or other place
or property where such release is or may be threatened.
(D) Any vessel, facility, establishment, or other place
or property where entry is needed to determine the need
for response or the appropriate response or to effectuate a
response action under this title.
(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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
519

SUPERFUND

Sec. 104

compliance with orders to prohibit interference with
entry or inspection unless under the circumstances of
the case the demand for entry or inspection is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.
(ii) In the case of information or document requests or orders, the court shall enjoin interference
with such information or document requests or orders
or direct compliance with the requests or orders to
provide such information or documents unless under
the circumstances of the case the demand for information or documents is arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance
with law.
The court may assess a civil penalty not to exceed $25,000
for each day of noncompliance against any person who unreasonably fails to comply with the provisions of paragraph (2), (3), or (4) or an order issued pursuant to subparagraph (A) of this paragraph.
(6) OTHER AUTHORITY.—Nothing in this subsection shall
preclude the President from securing access or obtaining information in any other lawful manner.
(7) CONFIDENTIALITY OF INFORMATION.—(A) Any records,
reports, or information obtained from any person under this
section (including records, reports, or information obtained by
representatives of the President) shall be available to the public, except that upon a showing satisfactory to the President (or
the State, as the case may be) by any person that records, reports, or information, or particular part thereof (other than
health or safety effects data), to which the President (or the
State, as the case may be) or any officer, employee, or representative has access under this section if made public would
divulge information entitled to protection under section 1905 of
title 18 of the United States Code, 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 Act, or when
relevant in any proceeding under this Act.
(B) Any person not subject to the provisions of section 1905
of title 18 of the United States Code 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 Act, 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 Act. A designation under this paragraph shall be made in writing and in such manner as the
President may prescribe by regulation.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 104

SUPERFUND

520

(D) Notwithstanding any limitation contained in this section or any other provision of law, all information reported to
or otherwise obtained by the President (or any representative
of the President) under this Act 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
Act 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 1, 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.
1 So in law. Probably means title III of the Superfund Amendments and Reauthorization Act
of 1986 (P.L. 99–499; 100 Stat. 1728).

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
521

SUPERFUND

Sec. 104

(f) 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 301(f) of this Act by contractors and subcontractors as a condition of such contracts.
(g)(1) All laborers and mechanics employed by contractors or
subcontractors in the performance of construction, repair, or alteration work funded in whole or in part under this section shall be
paid wages at rates not less than those prevailing on projects of a
character similar in the locality as determined by the Secretary of
Labor in accordance with the Davis-Bacon Act. The President shall
not approve any such funding without first obtaining adequate assurance that required labor standards will be maintained upon the
construction work.
(2) The Secretary of Labor shall have, with respect to the labor
standards specified in paragraph (1), the authority and functions
set forth in Reorganization Plan Numbered 14 of 1950 (15 F.R.
3176; 64 Stat. 1267) and section 276c of title 40 of the United
States Code.
(h) Notwithstanding any other provision of law, subject to the
provisions of section 111 of this Act, the President may authorize
the use of such emergency procurement powers as he deems necessary to effect the purpose of this Act. 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)(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 Act. In addition, said Administrator shall—
(A) in cooperation with the States, establish and maintain
a national registry of serious diseases and illnesses and a national registry of persons exposed to toxic substances;
(B) establish and maintain inventory of literature, research, and studies on the health effects of toxic substances;
(C) in cooperation with the States, and other agencies of
the Federal Government, establish and maintain a complete
listing of areas closed to the public or otherwise restricted in
use because of toxic substance contamination;
(D) in cases of public health emergencies caused or believed to be caused by exposure to toxic substances, provide
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 104

SUPERFUND

522

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 the enactment of the Superfund
Amendments and Reauthorization Act of 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 the enactment of the Superfund
Amendments and Reauthorization Act of 1986, the Administrator
of ATSDR and the Administrator of EPA shall revise the list prepared under subparagraph (A). Such revision shall include, in order
of priority, the addition of 100 or more such hazardous substances.
In each of the 3 consecutive 12-month periods that follow, the Administrator of ATSDR and the Administrator of EPA shall revise,
in the same manner as provided in the 2 preceding sentences, such
list to include not fewer than 25 additional hazardous substances
per revision. The Administrator of ATSDR and the Administrator
of EPA shall not less often than once every year thereafter revise
such list to include additional hazardous substances in accordance
with the criteria in subparagraph (A).
(3) Based on all available information, including information
maintained under paragraph (1)(B) and data developed and collected on the health effects of hazardous substances under this
paragraph, the Administrator of ATSDR shall prepare toxicological
profiles of each of the substances listed pursuant to paragraph (2).
The toxicological profiles shall be prepared in accordance with
guidelines developed by the Administrator of ATSDR and the Administrator of EPA. Such profiles shall include, but not be limited
to each of the following:
(A) An examination, summary, and interpretation of available toxicological information and epidemiologic evaluations on
a hazardous substance in order to ascertain the levels of significant human exposure for the substance and the associated
acute, subacute, and chronic health effects.
(B) A determination of whether adequate information on
the health effects of each substance is available or in the process of development to determine levels of exposure which
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
523

SUPERFUND

Sec. 104

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 the enactment of
the Superfund Amendments and Reauthorization Act of 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 Act.
(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 on the types of research
that should be done. Such program shall include, to the extent necessary to supplement existing information, but shall not be limited
to—
(i) laboratory and other studies to determine short, intermediate, and long-term health effects;
(ii) laboratory and other studies to determine organ-specific, site-specific, and system-specific acute and chronic toxicity;
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 104

SUPERFUND

524

(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 and the Federal Insecticide, Fungicide and Rodenticide Act. 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. Within 1 year after the enactment of the Superfund
Amendments and Reauthorization Act of 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, and recovery of
such costs from responsible parties under this Act.
(6)(A) The Administrator of ATSDR shall perform a health assessment for each facility on the National Priorities List established under section 105. Such health assessment shall be completed not later than December 10, 1988, for each facility proposed
for inclusion on such list prior to the date of the enactment of the
Superfund Amendments and Reauthorization Act of 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 such
date of enactment.
(B) The Administrator of ATSDR may perform health assessments for releases or facilities where individual persons or licensed
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
525

SUPERFUND

Sec. 104

physicians provide information that individuals have been exposed
to a hazardous substance, for which the probable source of such exposure is a release. In addition to other methods (formal or informal) of providing such information, such individual persons or licensed physicians may submit a petition to the Administrator of
ATSDR providing such information and requesting a health assessment. If such a petition is submitted and the Administrator of
ATSDR does not initiate a health assessment, the Administrator of
ATSDR shall provide a written explanation of why a health assessment is not appropriate.
(C) In determining the priority in which to conduct health assessments under this subsection, the Administrator of ATSDR, in
consultation with the Administrator of EPA, shall give priority to
those facilities at which there is documented evidence of the release of hazardous substances, at which the potential risk to
human health appears highest, and for which in the judgment of
the Administrator of ATSDR existing health assessment data are
inadequate to assess the potential risk to human health as provided in subparagraph (F). In determining the priorities for conducting health assessments under this subsection, the Administrator of ATSDR shall consider the National Priorities List schedules and the needs of the Environmental Protection Agency and
other Federal agencies pursuant to schedules for remedial investigation and feasibility studies.
(D) Where a health assessment is done at a site on the National Priorities List, the Administrator of ATSDR shall complete
such assessment promptly and, to the maximum extent practicable,
before the completion of the remedial investigation and feasibility
study at the facility concerned.
(E) Any State or political subdivision carrying out a health assessment for a facility shall report the results of the assessment to
the Administrator of ATSDR and the Administrator of EPA and
shall include recommendations with respect to further activities
which need to be carried out under this section. The Administrator
of ATSDR shall state such recommendation in any report on the results of any assessment carried out directly by the Administrator
of ATSDR for such facility and shall issue periodic reports which
include the results of all the assessments carried out under this
subsection.
(F) For the purposes of this subsection and section 111(c)(4),
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 shortterm and long-term health effects associated with identified hazardous substances and any available recommended exposure or tolerance limits for such hazardous substances, and the comparison of
existing morbidity and mortality data on diseases that may be associated with the observed levels of exposure. The Administrator of
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 104

SUPERFUND

526

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 Act. 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
105(a)(8)(A) to determine whether the site shall be placed on the
National Priorities List or, if the site is already on the list, the Administrator of ATSDR may recommend to the Administrator of
EPA that the site be accorded a higher priority.
(7)(A) Whenever in the judgment of the Administrator of
ATSDR it is appropriate on the basis of the results of a health assessment, the Administrator of ATSDR shall conduct a pilot study
of health effects for selected groups of exposed individuals in order
to determine the desirability of conducting full scale epidemiological or other health studies of the entire exposed population.
(B) Whenever in the judgment of the Administrator of ATSDR
it is appropriate on the basis of the results of such pilot study or
other study or health assessment, the Administrator of ATSDR
shall conduct such full scale epidemiological or other health studies
as may be necessary to determine the health effects on the population exposed to hazardous substances from a release or threatened release. If a significant excess of disease in a population is
identified, the letter of transmittal of such study shall include an
assessment of other risk factors, other than a release, that may, in
the judgment of the peer review group, be associated with such disease, if such risk factors were not taken into account in the design
or conduct of the study.
(8) In any case in which the results of a health assessment indicate a potential significant risk to human health, the Administrator of ATSDR shall consider whether the establishment of a registry of exposed persons would contribute to accomplishing the purposes of this subsection, taking into account circumstances bearing
on the usefulness of such a registry, including the seriousness or
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
527

SUPERFUND

Sec. 104

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 the date of the enactment of the Superfund Amendments and Reauthorization Act of 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 Act or the Solid Waste Disposal Act 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 Act, including, but not limited to—
(A) provision of alternative water supplies, and
(B) permanent or temporary relocation of individuals.
In any case in which information is insufficient, in the judgment
of the Administrator of ATSDR or the President to determine a significant human exposure level with respect to a hazardous substance, the President may take such steps as may be necessary to
reduce the exposure of any person to such hazardous substance to
such level as the President deems necessary to protect human
health.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 104

SUPERFUND

528

(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) or the response and abatement authorities of this Act.
(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 healthrelated authorities of this Act, 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 111(c)(4) 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, health studies, registries, and health surveillance.
(16) The President shall provide adequate personnel for
ATSDR, which shall not be fewer than 100 employees. For purposes of determining the number of employees under this subsection, an employee employed by ATSDR on a part-time career
employment basis shall be counted as a fraction which is determined by dividing 40 hours into the average number of hours of
such employee’s regularly scheduled workweek.
(17) In accordance with section 120 (relating to Federal facilities), the Administrator of ATSDR shall have the same authorities
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
529

SUPERFUND

Sec. 104

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 Act. There shall be no cause of action to compel
the President to acquire any interest in real property under
this Act.
(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 Act solely as a result of acquiring an interest in real estate under this subsection.
(k) BROWNFIELDS REVITALIZATION FUNDING.—
(1) DEFINITION OF ELIGIBLE ENTITY.—In this subsection,
the term ‘‘eligible entity’’ means—
(A) a general purpose unit of local government;
(B) a land clearance authority or other quasi-governmental entity that operates under the supervision and control of or as an agent of a general purpose unit of local government;
(C) a government entity created by a State legislature;
(D) a regional council or group of general purpose
units of local government;
(E) a redevelopment agency that is chartered or otherwise sanctioned by a State;
(F) a State;
(G) an Indian Tribe other than in Alaska; or
(H) an Alaska Native Regional Corporation and an
Alaska Native Village Corporation as those terms are defined in the Alaska Native Claims Settlement Act (43
U.S.C. 1601 and following) and the Metlakatla Indian community.
(2) BROWNFIELD SITE CHARACTERIZATION AND ASSESSMENT
GRANT PROGRAM.—
(A) ESTABLISHMENT OF PROGRAM.—The Administrator
shall establish a program to—
(i) provide grants to inventory, characterize, assess, and conduct planning related to brownfield sites
under subparagraph (B); and
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 104

SUPERFUND

530

(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 101(35)(B).
(3) GRANTS AND LOANS FOR BROWNFIELD REMEDIATION.—
(A) GRANTS PROVIDED BY THE PRESIDENT.—Subject to
paragraphs (4) and (5), the President shall establish a program to provide grants to—
(i) eligible entities, to be used for capitalization of
revolving loan funds; and
(ii) eligible entities or nonprofit organizations,
where warranted, as determined by the President
based on considerations under subparagraph (C), to be
used directly for remediation of one or more
brownfield sites owned by the entity or organization
that receives the grant and in amounts not to exceed
$200,000 for each site to be remediated.
(B) LOANS AND GRANTS PROVIDED BY ELIGIBLE ENTITIES.—An eligible entity that receives a grant under subparagraph (A)(i) shall use the grant funds to provide assistance for the remediation of brownfield sites in the form
of—
(i) one or more loans to an eligible entity, a site
owner, a site developer, or another person; or
(ii) one or more grants to an eligible entity or
other nonprofit organization, where warranted, as determined by the eligible entity that is providing the
assistance, based on considerations under subparagraph (C), to remediate sites owned by the eligible entity or nonprofit organization that receives the grant.
(C) CONSIDERATIONS.—In determining whether a grant
under subparagraph (A)(ii) or (B)(ii) is warranted, the
President or the eligible entity, as the case may be, shall
take into consideration—
(i) the extent to which a grant will facilitate the
creation of, preservation of, or addition to a park, a
greenway, undeveloped property, recreational property, or other property used for nonprofit purposes;
(ii) the extent to which a grant will meet the
needs of a community that has an inability to draw on
other sources of funding for environmental remediation and subsequent redevelopment of the area in
which a brownfield site is located because of the small
population or low income of the community;
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
531

SUPERFUND

Sec. 104

(iii) the extent to which a grant will facilitate the
use or reuse of existing infrastructure;
(iv) the benefit of promoting the long-term availability of funds from a revolving loan fund for
brownfield remediation; and
(v) such other similar factors as the Administrator
considers appropriate to consider for the purposes of
this subsection.
(D) TRANSITION.—Revolving loan funds that have been
established before the date of the enactment of this subsection may be used in accordance with this paragraph.
(4) GENERAL PROVISIONS.—
(A) MAXIMUM GRANT AMOUNT.—
(i) BROWNFIELD SITE CHARACTERIZATION AND ASSESSMENT.—
(I) IN GENERAL.—A grant under paragraph (2)
may be awarded to an eligible entity on a community-wide or site-by-site basis, and shall not exceed, for any individual brownfield site covered by
the grant, $200,000.
(II) WAIVER.—The Administrator may waive
the $200,000 limitation under subclause (I) to permit the brownfield site to receive a grant of not to
exceed $350,000, based on the anticipated level of
contamination, size, or status of ownership of the
site.
(ii) BROWNFIELD REMEDIATION.—A grant under
paragraph (3)(A)(i) may be awarded to an eligible entity on a community-wide or site-by-site basis, not to exceed $1,000,000 per eligible entity. The Administrator
may make an additional grant to an eligible entity described in the previous sentence for any year after the
year for which the initial grant is made, taking into
consideration—
(I) the number of sites and number of communities that are addressed by the revolving loan
fund;
(II) the demand for funding by eligible entities
that have not previously received a grant under
this subsection;
(III) the demonstrated ability of the eligible
entity to use the revolving loan fund to enhance
remediation and provide funds on a continuing
basis; and
(IV) such other similar factors as the Administrator considers appropriate to carry out this
subsection.
(B) PROHIBITION.—
(i) IN GENERAL.—No part of a grant or loan under
this subsection may be used for the payment of—
(I) a penalty or fine;
(II) a Federal cost-share requirement;
(III) an administrative cost;
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 104

SUPERFUND

532

(IV) a response cost at a brownfield site for
which the recipient of the grant or loan is potentially liable under section 107; or
(V) a cost of compliance with any Federal law
(including a Federal law specified in section
101(39)(B)), excluding the cost of compliance with
laws applicable to the cleanup.
(ii) EXCLUSIONS.—For the purposes of clause
(i)(III), the term ‘‘administrative cost’’ does not include
the cost of—
(I) investigation and identification of the extent of contamination;
(II) design and performance of a response action; or
(III) monitoring of a natural resource.
(C) ASSISTANCE FOR DEVELOPMENT OF LOCAL GOVERNMENT SITE REMEDIATION PROGRAMS.—A local government
that receives a grant under this subsection may use not to
exceed 10 percent of the grant funds to develop and implement a brownfields program that may include—
(i) monitoring the health of populations exposed to
one or more hazardous substances from a brownfield
site; and
(ii) monitoring and enforcement of any institutional control used to prevent human exposure to any
hazardous substance from a brownfield site.
(D) INSURANCE.—A recipient of a grant or loan awarded under paragraph (2) or (3) that performs a characterization, assessment, or remediation of a brownfield site may
use a portion of the grant or loan to purchase insurance
for the characterization, assessment, or remediation of
that site.
(5) GRANT APPLICATIONS.—
(A) SUBMISSION.—
(i) IN GENERAL.—
(I) APPLICATION.—An eligible entity may submit to the Administrator, through a regional office
of the Environmental Protection Agency and in
such form as the Administrator may require, an
application for a grant under this subsection for
one or more brownfield sites (including information on the criteria used by the Administrator to
rank applications under subparagraph (C), to the
extent that the information is available).
(II) NCP REQUIREMENTS.—The Administrator
may include in any requirement for submission of
an application under subclause (I) a requirement
of the National Contingency Plan only to the extent that the requirement is relevant and appropriate to the program under this subsection.
(ii) COORDINATION.—The Administrator shall coordinate with other Federal agencies to assist in making eligible entities aware of other available Federal
resources.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
533

SUPERFUND

Sec. 104

(iii) GUIDANCE.—The Administrator shall publish
guidance to assist eligible entities in applying for
grants under this subsection.
(B) APPROVAL.—The Administrator shall—
(i) at least annually, complete a review of applications for grants that are received from eligible entities
under this subsection; and
(ii) award grants under this subsection to eligible
entities that the Administrator determines have the
highest rankings under the ranking criteria established under subparagraph (C).
(C) RANKING CRITERIA.—The Administrator shall establish a system for ranking grant applications received
under this paragraph that includes the following criteria:
(i) The extent to which a grant will stimulate the
availability of other funds for environmental assessment or remediation, and subsequent reuse, of an area
in which one or more brownfield sites are located.
(ii) The potential of the proposed project or the development plan for an area in which one or more
brownfield sites are located to stimulate economic development of the area on completion of the cleanup.
(iii) The extent to which a grant would address or
facilitate the identification and reduction of threats to
human health and the environment, including threats
in areas in which there is a greater-than-normal incidence of diseases or conditions (including cancer, asthma, or birth defects) that may be associated with exposure to hazardous substances, pollutants, or contaminants.
(iv) The extent to which a grant would facilitate
the use or reuse of existing infrastructure.
(v) The extent to which a grant would facilitate
the creation of, preservation of, or addition to a park,
a greenway, undeveloped property, recreational property, or other property used for nonprofit purposes.
(vi) The extent to which a grant would meet the
needs of a community that has an inability to draw on
other sources of funding for environmental remediation and subsequent redevelopment of the area in
which a brownfield site is located because of the small
population or low income of the community.
(vii) The extent to which the applicant is eligible
for funding from other sources.
(viii) The extent to which a grant will further the
fair distribution of funding between urban and nonurban areas.
(ix) The extent to which the grant provides for involvement of the local community in the process of
making decisions relating to cleanup and future use of
a brownfield site.
(x) The extent to which a grant would address or
facilitate the identification and reduction of threats to
the health or welfare of children, pregnant women, miDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 104

SUPERFUND

534

nority or low-income communities, or other sensitive
populations.
(6) IMPLEMENTATION OF BROWNFIELDS PROGRAMS.—
(A) ESTABLISHMENT OF PROGRAM.—The Administrator
may provide, or fund eligible entities or nonprofit organizations to provide, training, research, and technical assistance to individuals and organizations, as appropriate, to
facilitate the inventory of brownfield sites, site assessments, remediation of brownfield sites, community involvement, or site preparation.
(B) FUNDING RESTRICTIONS.—The total Federal funds
to be expended by the Administrator under this paragraph
shall not exceed 15 percent of the total amount appropriated to carry out this subsection in any fiscal year.
(7) AUDITS.—
(A) IN GENERAL.—The Inspector General of the Environmental Protection Agency shall conduct such reviews or
audits of grants and loans under this subsection as the Inspector General considers necessary to carry out this subsection.
(B) PROCEDURE.—An audit under this subparagraph
shall be conducted in accordance with the auditing procedures of the General Accounting Office, including chapter
75 of title 31, United States Code.
(C) VIOLATIONS.—If the Administrator determines that
a person that receives a grant or loan under this subsection has violated or is in violation of a condition of the
grant, loan, or applicable Federal law, the Administrator
may—
(i) terminate the grant or loan;
(ii) require the person to repay any funds received;
and
(iii) seek any other legal remedies available to the
Administrator.
(D) REPORT TO CONGRESS.—Not later than 3 years
after the date of the enactment of this subsection, the Inspector General of the Environmental Protection Agency
shall submit to Congress a report that provides a description of the management of the program (including a description of the allocation of funds under this subsection).
(8) LEVERAGING.—An eligible entity that receives a grant
under this subsection may use the grant funds for a portion of
a project at a brownfield site for which funding is received
from other sources if the grant funds are used only for the purposes described in paragraph (2) or (3).
(9) AGREEMENTS.—Each grant or loan made under this
subsection shall—
(A) include a requirement of the National Contingency
Plan only to the extent that the requirement is relevant
and appropriate to the program under this subsection, as
determined by the Administrator; and
(B) be subject to an agreement that—
(i) requires the recipient to—
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
535

SUPERFUND

Sec. 105

(I) comply with all applicable Federal and
State laws; and
(II) ensure that the cleanup protects human
health and the environment;
(ii) requires that the recipient use the grant or
loan exclusively for purposes specified in paragraph (2)
or (3), as applicable;
(iii) in the case of an application by an eligible entity under paragraph (3)(A), requires the eligible entity to pay a matching share (which may be in the form
of a contribution of labor, material, or services) of at
least 20 percent, from non-Federal sources of funding,
unless the Administrator determines that the matching share would place an undue hardship on the eligible entity; and
(iv) contains such other terms and conditions as
the Administrator determines to be necessary to carry
out this subsection.
(10) FACILITY OTHER THAN BROWNFIELD SITE.—The fact
that a facility may not be a brownfield site within the meaning
of section 101(39)(A) has no effect on the eligibility of the facility for assistance under any other provision of Federal law.
(11) EFFECT ON FEDERAL LAWS.—Nothing in this subsection affects any liability or response authority under any
Federal law, including—
(A) this Act (including the last sentence of section
101(14));
(B) the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.);
(C) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.);
(D) the Toxic Substances Control Act (15 U.S.C. 2601
et seq.); and
(E) the Safe Drinking Water Act (42 U.S.C. 300f et
seq.).
(12) FUNDING.—
(A) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated to carry out this subsection
$200,000,000 for each of fiscal years 2002 through 2006.
(B) USE OF CERTAIN FUNDS.—Of the amount made
available under subparagraph (A), $50,000,000, or, if the
amount made available is less than $200,000,000, 25 percent of the amount made available, shall be used for site
characterization, assessment, and remediation of facilities
described in section 101(39)(D)(ii)(II).
[42 U.S.C. 9604]
NATIONAL CONTINGENCY PLAN

SEC. 105. (a) REVISION AND REPUBLICATION.—Within one hundred and eighty days after the enactment of this Act, 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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 105

SUPERFUND

536

to section 311 of the Federal Water Pollution Control Act, to reflect
and effectuate the responsibilities and powers created by this Act,
in addition to those matters specified in section 311(c)(2). 1 Such revision shall include a section of the plan to be known as the national hazardous substance response plan which shall establish
procedures and standards for responding to releases of hazardous
substances, pollutants, and contaminants, which shall include at a
minimum:
(1) methods for discovering and investigating facilities at
which hazardous substances have been disposed of or otherwise come to be located;
(2) methods for evaluating, including analyses of relative
cost, and remedying any releases or threats of releases from facilities which pose substantial danger to the public health or
the environment;
(3) methods and criteria for determining the appropriate
extent of removal, remedy, and other measures authorized by
this Act;
(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 re1 Probably should refer to section 311(d)(2), pursuant to general amendments made to such
section by section 4201(a) of Public Law 101–380.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
537

SUPERFUND

Sec. 105

leases throughout the United States and shall revise the list
no less often than annually. Within one year after the date of
enactment of this Act, and annually thereafter, each State
shall establish and submit for consideration by the President
priorities for remedial action among known releases and potential releases in that State based upon the criteria set forth in
subparagraph (A) of this paragraph. In assembling or revising
the national list, the President shall consider any priorities established by the States. To the extent practicable, the highest
priority facilities shall be designated individually and shall be
referred to as the ‘‘top priority among known response targets’’,
and, to the extent practicable, shall include among the one
hundred highest priority facilities one such facility from each
State which shall be the facility designated by the State as
presenting the greatest danger to public health or welfare or
the environment among the known facilities in such State. A
State shall be allowed to designate its highest priority facility
only once. Other priority facilities or incidents may be listed
singly or grouped for response priority purposes;
(9) specified roles for private organizations and entities in
preparation for response and in responding to releases of hazardous substances, including identification of appropriate
qualifications and capacity therefor and including consideration of minority firms in accordance with subsection (f); 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 Act.
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 311(c)(2) 1 (F) and (G) and (j)(1) of the Federal Water Pollution Control Act. 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, 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 Act 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 the enactment of the Superfund Amendments and Reauthorization Act
of 1986 and after publication of notice and opportunity for sub1 Probably should refer to section 311(d)(2), pursuant to general amendments made to such
section by section 4201(a) of Public Law 101–380.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 105

SUPERFUND

538

mission of comments in accordance with section 553 of title 5,
United States Code, 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
enactment of the Superfund Amendments and Reauthorization
Act of 1986. Such amended hazard ranking system shall be applied to any site or facility to be newly listed on the National
Priorities List after the effective date established by the President. Until such effective date of the regulations, the hazard
ranking system in effect on September 1, 1984, shall continue
in full force and effect.
(2) HEALTH ASSESSMENT OF WATER CONTAMINATION
RISKS.—In carrying out this subsection, the President shall ensure that the human health risks associated with the contamination or potential contamination (either directly or as a result
of the runoff of any hazardous substance or pollutant or contaminant from sites or facilities) of surface water are appropriately assessed where such surface water is, or can be, used
for recreation or potable water consumption. In making the assessment required pursuant to the preceding sentence, the
President shall take into account the potential migration of
any hazardous substance or pollutant or contaminant through
such surface water to downstream sources of drinking water.
(3) REEVALUATION NOT REQUIRED.—The President shall not
be required to reevaluate, after the date of the enactment of
the Superfund Amendments and Reauthorization Act of 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 Act.
(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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
539

SUPERFUND

Sec. 105

(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.
(f) MINORITY CONTRACTORS.—In awarding contracts under this
Act, 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 Act, the participation of minority firms in contracts carried out under this Act. Such report
shall contain a brief description of the contracts which have been
awarded to minority firms under this Act and of the efforts made
by the President to encourage the participation of such firms in
programs carried out under this Act.
(g) SPECIAL STUDY WASTES.—
(1) APPLICATION.—This subsection applies to facilities—
(A) which as of the date of enactment of the Superfund
Amendments and Reauthorization Act of 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 3001(b) of the
Solid Waste Disposal Act 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 the date of enactment of the Superfund
Amendments and Reauthorization Act of 1986 is included on
the National Priorities List from such List, or not to list any
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 105

SUPERFUND

540

facility which as of such date is proposed for inclusion on such
list.
(4) INFORMATION GATHERING AND ANALYSIS.—Nothing in
this Act shall be construed to preclude the expenditure of monies from the Fund for gathering and analysis of information
which will enable the President to consider the specific factors
required by paragraph (2).
(h) NPL DEFERRAL.—
(1) DEFERRAL TO STATE VOLUNTARY CLEANUPS.—At the request of a State and subject to paragraphs (2) and (3), the
President generally shall defer final listing of an eligible response site on the National Priorities List if the President determines that—
(A) the State, or another party under an agreement
with or order from the State, is conducting a response action at the eligible response site—
(i) in compliance with a State program that specifically governs response actions for the protection of
public health and the environment; and
(ii) that will provide long-term protection of
human health and the environment; or
(B) the State is actively pursuing an agreement to perform a response action described in subparagraph (A) at
the site with a person that the State has reason to believe
is capable of conducting a response action that meets the
requirements of subparagraph (A).
(2) PROGRESS TOWARD CLEANUP.—If, after the last day of
the 1-year period beginning on the date on which the President
proposes to list an eligible response site on the National Priorities List, the President determines that the State or other
party is not making reasonable progress toward completing a
response action at the eligible response site, the President may
list the eligible response site on the National Priorities List.
(3) CLEANUP AGREEMENTS.—With respect to an eligible response site under paragraph (1)(B), if, after the last day of the
1-year period beginning on the date on which the President
proposes to list the eligible response site on the National Priorities List, an agreement described in paragraph (1)(B) has not
been reached, the President may defer the listing of the eligible
response site on the National Priorities List for an additional
period of not to exceed 180 days if the President determines
deferring the listing would be appropriate based on—
(A) the complexity of the site;
(B) substantial progress made in negotiations; and
(C) other appropriate factors, as determined by the
President.
(4) EXCEPTIONS.—The President may decline to defer, or
elect to discontinue a deferral of, a listing of an eligible response site on the National Priorities List if the President determines that—
(A) deferral would not be appropriate because the
State, as an owner or operator or a significant contributor
of hazardous substances to the facility, is a potentially responsible party;
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
541

SUPERFUND

Sec. 106

(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.
[42 U.S.C. 9605]
ABATEMENT ACTION

SEC. 106. (a) 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)(1) Any person who, without sufficient cause, willfully violates, or fails or refuses to comply 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 the Internal Revenue Code of 1954.
(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 107(a)
and that costs for which it seeks reimbursement are reasonable in
light of the action required by the relevant order.
(D) A petitioner who is liable for response costs under section
107(a) 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 purDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 107

SUPERFUND

542

suant 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 of the United States Code.
(c) Within one hundred and eighty days after enactment of this
Act, 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 Act. Such guidelines shall to the extent
practicable be consistent with the national hazardous substance response plan, and shall include, at a minimum, the assignment of
responsibility for coordinating response actions with the issuance of
administrative orders, enforcement of standards and permits, the
gathering of information, and other imminent hazard and emergency powers authorized by (1) sections 311(c)(2), 1 308, 309, and
504(a) of the Federal Water Pollution Control Act, (2) sections
3007, 3008, 3013, and 7003 of the Solid Waste Disposal Act, (3) sections 1445 and 1431 of the Safe Drinking Water Act, (4) sections
113, 114, and 303 of the Clean Air Act, and (5) section 7 of the
Toxic Substances Control Act.
[42 U.S.C. 9606]
LIABILITY

SEC. 107. (a) Notwithstanding any other provision or rule of
law, and subject only to the defenses set forth in subsection (b) of
this section—
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such
hazardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise
arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous
substances owned or possessed by such person, by any other
party or entity, at any facility or incineration vessel owned or
operated by another party or entity and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there
is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, 2 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;
1 See

footnote 1 under section 105(a).
after this point appears to modify paragraphs (1) through (4).

2 Matter

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
543

SUPERFUND

Sec. 107

(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 104(i).
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 the Internal Revenue Code of 1954.
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. 1
(b) 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) 2 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) 3 he took precautions
against foreseeable acts or omissions of any such third party
and the consequences that could foreseeably result from such
acts or omissions; or
(4) any combination of the foregoing paragraphs.
1 Section 209 of the Water Resources Development Act of 1996 (Public Law 104–303; 110 Stat.
3681) provides:

SEC. 209. [42 U.S.C. 9607 note] RECOVERY OF COSTS.
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.
2 So in law. Probably should be ‘‘(A)’’.
3 So in law. Probably should be ‘‘(B)’’.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 107

SUPERFUND

544

(c)(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, United
States Code), 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 101(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 title.
(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 of the United
States Code or vessels subject to the provisions of title 33 or 46 of
the United States Code, 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 104 or 106 of this Act, such person may be liable to the United States for punitive damages in an amount at
least equal to, and not more than three times, the amount of any
costs incurred by the Fund as a result of such failure to take proper action. The President is authorized to commence a civil action
against any such person to recover the punitive damages, which
shall be in addition to any costs recovered from such person pursuant to section 112(c) of this Act. Any moneys received by the
United States pursuant to this subsection shall be deposited in the
Fund.
(d) RENDERING CARE OR ADVICE.—
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
545

SUPERFUND

Sec. 107

(1) IN GENERAL.—Except as provided in paragraph (2), no
person shall be liable under this title 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 title 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)(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 title, 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)(1) NATURAL RESOURCES LIABILITY.—In the case of an injury
to, destruction of, or loss of natural resources under subparagraph
(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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 107

SUPERFUND

546

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 1 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. 1 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 Act 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 the enactment
of this Act.
(2) DESIGNATION OF FEDERAL AND STATE OFFICIALS.— 2
(A) FEDERAL.—The President shall designate in the
National Contingency Plan published under section 105 of
this Act the Federal officials who shall act on behalf of the
public as trustees for natural resources under this Act and
section 311 of the Federal Water Pollution Control Act.
Such officials shall assess damages for injury to, destruction of, or loss of natural resources for purposes of this Act
and such section 311 for those resources under their trusteeship and may, upon request of and reimbursement from
a State and at the Federal officials’ discretion, assess damages for those natural resources under the State’s trusteeship.
(B) STATE.—The Governor of each State shall designate State officials who may act on behalf of the public
as trustees for natural resources under this Act and section 311 of the Federal Water Pollution Control Act and
shall notify the President of such designations. Such State
officials shall assess damages to natural resources for the
purposes of this Act and such section 311 for those natural
resources under their trusteeship.
(C) REBUTTABLE PRESUMPTION.—Any determination or
assessment of damages to natural resources for the purposes of this Act and section 311 of the Federal Water Pol1 The words ‘‘or the Indian tribe’’ were inserted after the words ‘‘State Government’’ in the
previous version of this sentence, but the same law also removed the sentence containing those
words and replaced it with this new sentence which does not contain the words ‘‘State Government’’. See sections 107(d)(2) and 207(c)(2)(D) of the Superfund Amendments and Reauthorization Act of 1986.
2 So in law (Pub. Law. 99–499, 100 Stat. 1629). Margin is incorrect.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
547

SUPERFUND

Sec. 107

lution Control Act made by a Federal or State trustee in
accordance with the regulations promulgated under section
301(c) of this Act shall have the force and effect of a rebuttable presumption on behalf of the trustee in any administrative or judicial proceeding under this Act or section 311
of the Federal Water Pollution Control Act.
(g) FEDERAL AGENCIES.—For provisions relating to Federal
agencies, see section 120 of this Act.
(h) The owner or operator of a vessel shall be liable in accordance with this section, under maritime tort law, and as provided
under section 114 of this Act notwithstanding any provision of the
Act of March 3, 1851 (46 U.S.C. 183ff) or the absence of any physical damage to the proprietary interest of the claimant.
(i) 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. 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) Recovery by any person (including the United States or any
State or Indian tribe) for response costs or damages resulting from
a federally permitted release shall be pursuant to existing law in
lieu of this section. Nothing in this paragraph shall affect or modify
in any way the obligations or liability of any person under any
other provision of State or Federal law, including common law, for
damages, injury, or loss resulting from a release of any hazardous
substance or for removal or remedial action or the costs of removal
or remedial action of such hazardous substance. In addition, costs
of response incurred by the Federal Government in connection with
a discharge specified in section 101(10) (B) or (C) shall be recoverable in an action brought under section 309(b) of the Clean Water
Act.
(k)(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, shall be transferred to and assumed by the Post-closure Liability Fund established by section 232 1 of this Act when—
(A) such facility and the owner and operator thereof has
complied with the requirements of subtitle C of the Solid
Waste Disposal Act 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
1 Section

December 31, 2002

232 was repealed by section 514(b) of Public Law 99–499.

Q:\COMP\ENVIR2\CERCLA
Sec. 107

SUPERFUND

548

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) 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 232 1 of
this Act, and the owner and operator of such facility shall continue
to be liable with respect to such facility under this section and
other law until such time as the Administrator and such State determines that such facility has complied with all conditions imposed by this subsection. A determination by the Administrator or
such State that a facility has not complied with all conditions imposed by this subsection or that insufficient information has been
supplied to demonstrate compliance, shall be a final administrative
action for purposes of judicial review. A request for additional information shall state in specific terms the data required.
(3) In addition to the assumption of liability of owners and operators under paragraph (1) of this subsection, the Post-closure Liability Fund established by section 232 1 of this Act 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 for
hazardous waste disposal facilities meeting the conditions of paragraph (1) of this subsection.
(4)(A) Not later than one year after the date of enactment of
this Act, 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 title
II of this Act.
(B) Not later than eighteen months after the date of enactment
of this Act 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
1 See

December 31, 2002

footnote 1 on previous page.

Q:\COMP\ENVIR2\CERCLA
549

SUPERFUND

Sec. 107

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 Act 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 title II of this Act.
(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 111 of this Act, no liability shall be transferred to or assumed by the Post-Closure Liability Trust Fund 1 established by
section 232 2 of this Act 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
1 So

in law. Probably should be ‘‘Post-closure Liability Trust Fund’’.
232 was repealed by section 514(b) of Public Law 99–499.

2 Section

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 107

SUPERFUND

550

close such facilities in a manner which assures protection
of human health and the environment.
(C) ASSESSMENTS.—The study under this paragraph shall
include assessments of treatment, storage, and disposal facilities which have been or are likely to be issued a permit under
section 3005 of the Solid Waste Disposal Act and the likelihood
of future insolvency on the part of owners and operators of
such facilities. Separate assessments shall be made for different classes of facilities and for different classes of land disposal facilities and shall include but not be limited to—
(i) the current and future financial capabilities of facility owners and operators;
(ii) the current and future costs associated with facilities, including the costs of routine monitoring and maintenance, compliance monitoring, corrective action, natural
resource damages, and liability for damages to third parties; and
(iii) the availability of mechanisms by which owners
and operators of such facilities can assure that current and
future costs, including post-closure costs, will be financed.
(D) PROCEDURES.—In carrying out the responsibilities of
this paragraph, the Comptroller General shall consult with the
Administrator, the Secretary of Commerce, the Secretary of the
Treasury, and the heads of other appropriate Federal agencies.
(E) CONSIDERATION OF OPTIONS.—In conducting the study
under this paragraph, the Comptroller General shall consider
various mechanisms and combinations of mechanisms to complement the policies set forth in the Hazardous and Solid
Waste Amendments of 1984 to serve the purposes set forth in
subparagraph (B) and to assure that the current and future
costs associated with hazardous waste facilities, including postclosure 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;
(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 1 previously established by section 232 2 of this Act,
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;
1 So

in law. Probably should be ‘‘Post-closure Liability Trust Fund’’.
footnote 2 on previous page.

2 See

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
551

SUPERFUND

Sec. 107

(vii) coinsurance, reinsurance, or pooled-risk insurance, whether provided by the private sector or provided or
assisted by the Federal Government; and
(viii) creation of a new program to be administered by
a new or existing Federal agency or by a federally chartered corporation.
(F) RECOMMENDATIONS.—The Comptroller General shall
consider options for funding any program under this section
and shall, to the extent necessary, make recommendations to
the appropriate committees of Congress for additional authority to implement such program.
(l) FEDERAL LIEN.—
(1) IN GENERAL.—All costs and damages for which a person
is liable to the United States under subsection (a) of this section (other than the owner or operator of a vessel under paragraph (1) of subsection (a)) 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 Act.
(B) The time that the person referred to in paragraph
(1) is provided (by certified or registered mail) written notice of potential liability.
Such lien shall continue until the liability for the costs (or a
judgment against the person arising out of such liability) is
satisfied or becomes unenforceable through operation of the
statute of limitations provided in section 113.
(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 the Internal Revenue Code of 1954.
(4) ACTION IN REM.—The costs constituting the lien may be
recovered in an action in rem in the United States district
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 107

SUPERFUND

552

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) 1 LIABILITY OF FIDUCIARIES.—
(1) IN GENERAL.—The liability of a fiduciary under any
provision of this Act 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 Act independently of the
person’s ownership of a vessel or facility as a fiduciary or actions taken in a fiduciary capacity.
(3) LIMITATION.—Paragraphs (1) and (4) do not limit the liability pertaining to a release or threatened release of a hazardous substance if negligence of a fiduciary causes or contributes to the release or threatened release.
(4) SAFE HARBOR.—A fiduciary shall not be liable in its
personal capacity under this Act for—
1 Subtitle E of title II of Public Law 104–208 added subsection (n) to section 107. Sections
2504 and 2505 of that subtitle provide:

SEC. 2504. LENDER LIABILITY RULE.
(a) IN GENERAL.—Effective on the date of enactment of this Act, the portion of the final rule
issued by the Administrator of the Environmental Protection Agency on April 29, 1992 (57 Fed.
Reg. 18,344), prescribing section 300.1105 of title 40, Code of Federal Regulations, shall be
deemed to have been validly issued under authority of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) and to have been effective according to the terms of the final rule. No additional judicial proceedings shall be necessary or may be held with respect to such portion of the final rule. Any reference in that portion of the final rule to section 300.1100 of title 40, Code of Federal Regulations, shall be
deemed to be a reference to the amendments made by this subtitle.
(b) JUDICIAL REVIEW.—Notwithstanding section 113(a) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9613(a)), no court shall have jurisdiction to review the portion of the final rule issued by the Administrator of the Environmental
Protection Agency on April 29, 1992 (57 Fed. Reg. 18,344) that prescribed section 300.1105 of
title 40, Code of Federal Regulations.
(c) AMENDMENT.—No provision of this section shall be construed as limiting the authority of
the President or a delegee of the President to amend the portion of the final rule issued by the
Administrator of the Environmental Protection Agency on April 29, 1992 (57 Fed. Reg. 18,344),
prescribing section 300.1105 of title 40, Code of Federal Regulations, consistent with the amendments made by this subtitle and other applicable law.
(d) JUDICIAL REVIEW.—No provision of this section shall be construed as precluding judicial
review of any amendment of section 300.1105 of title 40, Code of Federal Regulations, made
after the date of enactment of this Act.
SEC. 2505. EFFECTIVE DATE.
The amendments made by this subtitle shall be applicable with respect to any claim that has
not been finally adjudicated as of the date of enactment of this Act.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
553

SUPERFUND

Sec. 107

(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 Act:
(A) FIDUCIARY.—The term ‘‘fiduciary’’—
(i) means a person acting for the benefit of another party as a bona fide—
(I) trustee;
(II) executor;
(III) administrator;
(IV) custodian;
(V) guardian of estates or guardian ad litem;
(VI) receiver;
(VII) conservator;
(VIII) committee of estates of incapacitated
persons;
(IX) personal representative;
(X) trustee (including a successor to a trustee)
under an indenture agreement, trust agreement,
lease, or similar financing agreement, for debt securities, certificates of interest or certificates of
participation in debt securities, or other forms of
indebtedness as to which the trustee is not, in the
capacity of trustee, the lender; or
(XI) representative in any other capacity that
the Administrator, after providing public notice,
determines to be similar to the capacities described in subclauses (I) through (X); and
(ii) does not include—
(I) a person that is acting as a fiduciary with
respect to a trust or other fiduciary estate that
was organized for the primary purpose of, or is engaged in, actively carrying on a trade or business
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 107

SUPERFUND

554

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 Act 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 Act 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 Act 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 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.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
555

SUPERFUND

Sec. 107

(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 Act 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 Act, 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 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
the Internal Revenue Code of 1986 and exempt from tax
under section 501(a) of such Code that, during its taxable
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 107

SUPERFUND

556

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 Act; or
(C) the person has impeded or is impeding, through
action or inaction, the performance of a response action or
natural resource restoration with respect to the facility.
(3) NO JUDICIAL REVIEW.—A determination by the President under paragraph (2) shall not be subject to judicial review.
(4) DEFINITION OF MUNICIPAL SOLID WASTE.—
(A) IN GENERAL.—For purposes of this subsection, the
term ‘‘municipal solid waste’’ means waste material—
(i) generated by a household (including a single or
multifamily residence); and
(ii) generated by a commercial, industrial, or institutional entity, to the extent that the waste material—
(I) is essentially the same as waste normally
generated by a household;
(II) is collected and disposed of with other municipal solid waste as part of normal municipal
solid waste collection services; and
(III) contains a relative quantity of hazardous
substances no greater than the relative quantity
of hazardous substances contained in waste material generated by a typical single-family household.
(B) EXAMPLES.—Examples of municipal solid waste
under subparagraph (A) include food and yard waste,
paper, clothing, appliances, consumer product packaging,
disposable diapers, office supplies, cosmetics, glass and
metal food containers, elementary or secondary school
science laboratory waste, and household hazardous waste.
(C) EXCLUSIONS.—The term ‘‘municipal solid waste’’
does not include—
(i) combustion ash generated by resource recovery
facilities or municipal incinerators; or
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
557

SUPERFUND

Sec. 107

(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 section 107 or 113 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 Act with respect to circumstances described in paragraph (1)(A).
(7) COSTS AND FEES.—A nongovernmental entity that commences, after the date of the enactment of this subsection, a
contribution action under this Act 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 liable, for response
costs at a facility through any direct or indirect familial relationship or any contractual, corporate,
or financial relationship (other than a contractual,
corporate, or financial relationship that is created
by a contract for the sale of goods or services); or
(II) the result of a reorganization of a business entity that was potentially liable;
(iii) the person takes reasonable steps to—
(I) stop any continuing release;
(II) prevent any threatened future release;
and
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 107

SUPERFUND

558

(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 Act;
(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 101(35)(B) with respect to
the property; and
(II) did not know or have reason to know that
the property was or could be contaminated by a
release or threatened release of one or more hazardous substances from other real property not
owned or operated by the person.
(B) DEMONSTRATION.—To qualify as a person described
in subparagraph (A), a person must establish by a preponderance of the evidence that the conditions in clauses (i)
through (viii) of subparagraph (A) have been met.
(C) BONA FIDE PROSPECTIVE PURCHASER.—Any person
that does not qualify as a person described in this paragraph because the person had, or had reason to have,
knowledge specified in subparagraph (A)(viii) at the time
of acquisition of the real property may qualify as a bona
fide prospective purchaser under section 101(40) 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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
559

SUPERFUND

Sec. 107

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 Act 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 113(f).
(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
purchaser’s being considered to be an owner or operator of a
facility shall not be liable as long as the bona fide prospective
purchaser does not impede the performance of a response action or natural resource restoration.
(2) LIEN.—If there are unrecovered response costs incurred
by the United States at a facility for which an owner of the facility is not liable by reason of paragraph (1), and if each of the
conditions described in paragraph (3) is met, the United States
shall have a lien on the facility, or may by agreement with the
owner, obtain from the owner a lien on any other property or
other assurance of payment satisfactory to the Administrator,
for the unrecovered response costs.
(3) CONDITIONS.—The conditions referred to in paragraph
(2) are the following:
(A) RESPONSE ACTION.—A response action for which
there are unrecovered costs of the United States is carried
out at the facility.
(B) FAIR MARKET VALUE.—The response action increases the fair market value of the facility above the fair
market value of the facility that existed before the response action was initiated.
(4) AMOUNT; DURATION.—A lien under paragraph (2)—
(A) shall be in an amount not to exceed the increase
in fair market value of the property attributable to the response action at the time of a sale or other disposition of
the property;
(B) shall arise at the time at which costs are first incurred by the United States with respect to a response action at the facility;
(C) shall be subject to the requirements of subsection
(l)(3); and
(D) shall continue until the earlier of—
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 108

SUPERFUND

560

(i) satisfaction of the lien by sale or other means;
or
(ii) notwithstanding any statute of limitations
under section 113, recovery of all response costs incurred at the facility.
[42 U.S.C. 9607]
FINANCIAL RESPONSIBILITY

SEC. 108. (a)(1) The owner or operator of each vessel (except
a non-self-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 107(a)
of this Act. 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 4197 of the Revised Statutes of the
United States 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)(1) Beginning not earlier than five years after the date of enactment of this Act, the President shall promulgate requirements
(for facilities in addition to those under subtitle C of the Solid
Waste Disposal Act 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 hazDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
561

SUPERFUND

Sec. 108

ardous substances. Not later than three years after the date of enactment of the Act, 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
Act.
(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 Act shall be determined under section 30 of the Motor Carrier Act of 1980, Public Law 96–296.
(c) DIRECT ACTION.—
(1) RELEASES FROM VESSELS.—In the case of a release or
threatened release from a vessel, any claim authorized by section 107 or 111 may be asserted directly against any guarantor
providing evidence 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 title. 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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 109

SUPERFUND

562

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 107 or 111 may be asserted directly against any guarantor
providing evidence of financial responsibility for such facility
under subsection (b), if the person liable under section 107 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 107 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 107 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 107 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 107 of this Act or other applicable law.
[42 U.S.C. 9608]
CIVIL PENALTIES AND AWARDS

SEC. 109. (a) CLASS I ADMINISTRATIVE PENALTY.—
(1) VIOLATIONS.—A civil penalty of not more than $25,000
per violation may be assessed by the President in the case of
any of the following—
(A) A violation of the requirements of section 103 (a)
or (b) (relating to notice).
(B) A violation of the requirements of section 103(d)(2)
(relating to destruction of records, etc.).
(C) A violation of the requirements of section 108 (relating to financial responsibility, etc.), the regulations
issued under section 108, or with any denial or detention
order under section 108.
(D) A violation of an order under section 122(d)(3) (relating to settlement agreements for action under section
104(b)).
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
563

SUPERFUND

Sec. 109

(E) Any failure or refusal referred to in section 122(l)
(relating to violations of administrative orders, consent decrees, or agreements under section 120).
(2) NOTICE AND HEARINGS.—No civil penalty may be assessed under this subsection unless the person accused of the
violation is given notice and opportunity for a hearing with respect to the violation.
(3) DETERMINING AMOUNT.—In determining the amount of
any penalty assessed pursuant to this subsection, the President shall take into account the nature, circumstances, extent
and gravity of the violation or violations and, with respect to
the violator, ability to pay, any prior history of such violations,
the degree of culpability, economic benefit or savings (if any)
resulting from the violation, and such other matters as justice
may require.
(4) REVIEW.—Any person against whom a civil penalty is
assessed under this subsection may obtain review thereof in
the appropriate district court of the United States by filing a
notice of appeal in such court within 30 days from the date of
such order and by simultaneously sending a copy of such notice
by certified mail to the President. The President shall promptly
file in such court a certified copy of the record upon which such
violation was found or such penalty imposed. If any person
fails to pay an assessment of a civil penalty after it has become
a final and unappealable order or after the appropriate court
has entered final judgment in favor of the United States, the
President may request the Attorney General of the United
States to institute a civil action in an appropriate district court
of the United States to collect the penalty, and such court shall
have jurisdiction to hear and decide any such action. In hearing such action, the court shall have authority to review the
violation and the assessment of the civil penalty on the record.
(5) SUBPOENAS.—The President may issue subpoenas for
the attendance and testimony of witnesses and the production
of relevant papers, books, or documents in connection with
hearings under this subsection. In case of contumacy or refusal
to obey a subpoena issued pursuant to this paragraph and
served upon any person, the district court of the United States
for any district in which such person is found, resides, or
transacts business, upon application by the United States and
after notice to such person, shall have jurisdiction to issue an
order requiring such person to appear and give testimony before the administrative law judge or to appear and produce
documents before the administrative law judge, or both, and
any failure to obey such order of the court may be punished by
such court as a contempt thereof.
(b) CLASS II ADMINISTRATIVE PENALTY.—A civil penalty of not
more than $25,000 per day for each day during which the violation
continues may be assessed by the President in the case of any of
the following—
(1) A violation of the notice requirements of section 103 (a)
or (b).
(2) A violation of section 103(d)(2) (relating to destruction
of records, etc.).
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 109

SUPERFUND

564

(3) A violation of the requirements of section 108 (relating
to financial responsibility, etc.), the regulations issued under
section 108, or with any denial or detention order under section 108.
(4) A violation of an order under section 122(d)(3) (relating
to settlement agreements for action under section 104(b)).
(5) Any failure or refusal referred to in section 122(l) (relating to violations of administrative orders, consent decrees, or
agreements under section 120).
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 of the United States Code.
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 103 (a)
or (b).
(2) A violation of section 103(d)(2) (relating to destruction
of records, etc.).
(3) A violation of the requirements of section 108 (relating
to financial responsibility, etc.), the regulations issued under
section 108, or with any denial or detention order under section 108.
(4) A violation of an order under section 122(d)(3) (relating
to settlement agreements for action under section 104(b)).
(5) Any failure or refusal referred to in section 122(l) (relating to violations of administrative orders, consent decrees, or
agreements under section 120).
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 104(e) (relating to information gathering and access authorities), see section 104(e).
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
565

SUPERFUND

Sec. 110

(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 Act, including any violation of section
103 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 111.
(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 Act, 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 Act
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 Act.
[42 U.S.C. 9609]
EMPLOYEE PROTECTION

SEC. 110. (a) 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 Act,
or has testified or is about to testify in any proceeding resulting
from the administration or enforcement of the provisions of this
Act.
(b) 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, United States Code. 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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 111

SUPERFUND

566

the violation as the Secretary of Labor deems appropriate, including, but not limited to, the rehiring or reinstatement of the employee or representative of employees to his former position with
compensation. If he finds that there was no such violation, he shall
issue an order denying the application. Such order issued by the
Secretary of Labor under this subparagraph shall be subject to judicial review in the same manner as orders and decisions are subject to judicial review under this Act.
(c) 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) 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 Act.
(e) 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 Act, 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, United States Code. 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 Act.
[42 U.S.C. 9610]
USES OF FUND

SEC. 111. (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 the Internal Revenue Code of 1986 not more than $8,500,000,000
for the 5-year period beginning on the date of enactment of the
Superfund Amendments and Reauthorization Act of 1986, and not
1 So

December 31, 2002

in law.

Q:\COMP\ENVIR2\CERCLA
567

SUPERFUND

Sec. 111

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 104 of this title, including costs incurred pursuant to the Intervention on the High Seas Act.
(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 311(c) 1 of the
Clean Water Act and amended by section 105 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 112 of this
title, including those costs set out in subsection 112(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 117(e) (relating to public participation
grants for technical assistance).
(6) LEAD CONTAMINATED SOIL.—Payment of not to exceed
$15,000,000 for the costs of a pilot program 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
title.
(b)(1) IN GENERAL.—Claims asserted and compensable but
unsatisfied under provisions of section 311 of the Clean Water Act,
which are modified by section 304 of this Act may be asserted
against the Fund under this title; 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 title
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,
1 Probably

December 31, 2002

should refer to section 311(d). See footnote 1 under section 105(a).

Q:\COMP\ENVIR2\CERCLA
Sec. 111

SUPERFUND

568

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 107.
(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) 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 104(i), including
the costs of epidemiologic and laboratory studies, health assessments, preparation of toxicologic profiles, development and
maintenance of a registry of persons exposed to 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 longlatency 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 Act and section 311 of the
Clean Water Act, 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 hazDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
569

SUPERFUND

Sec. 111

ardous 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 105(d).—Costs incurred by the President in evaluating facilities pursuant to petitions under section 105(d) (relating to
petitions for assessment of release).
(8) CONTRACT COSTS UNDER SECTION 104(a)(1).—The costs
of contracts or arrangements entered into under section
104(a)(1) 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 104(j).—The costs
incurred by the President in acquiring real estate or interests
in real estate under section 104(j) (relating to acquisition of
property).
(10) RESEARCH, DEVELOPMENT, AND DEMONSTRATION COSTS
UNDER SECTION 311.—The cost of carrying out section 311 (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 123, 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.
(12) WORKER TRAINING AND EDUCATION GRANTS.—The costs
of grants under section 126(g) of the Superfund Amendments
and Reauthorization Act of 1986 for training and education of
workers to the extent that such costs do not exceed
$10,000,000 1 for each of the fiscal years 1987, 1988, 1989,
1990, 1991, 1992, 1993, and 1994.
(13) AWARDS UNDER SECTION 109.—The costs of any awards
granted under section 109(d).
(14) LEAD POISONING STUDY.—The cost of carrying out the
study under subsection (f) of section 118 of the Superfund
Amendments and Reauthorization Act of 1986 (relating to lead
poisoning in children).
(d)(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 the enactment of this Act.
(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
1 Public Law 101–144 (103 Stat. 857) purported to amend section 9611(c)(12) of the Superfund
Amendments and Reauthorization Act of 1986 (SARA) by striking ‘‘$10,000,000’’ and inserting
‘‘$20,000,000’’. The amendment made by Public Law 101–144 probably should have been made
to section 111(c)(12) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which is designated as section 9611 in title 42, United States Code.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 111

SUPERFUND

570

ambient concentrations of air pollutants from multiple or diffuse
sources.
(e)(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 title II of this Act 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.
(f) 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 104(d) of this title.
(g) 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
title. 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.
øSubsection (h) repealed.¿
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
571

SUPERFUND

Sec. 111

(i) 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 Act 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) The President shall use the money in the Post-closure Liability Fund for any of the purposes specified in subsection (a) of
this section with respect to a hazardous waste disposal facility for
which liability has transferred to such fund under section 107(k) of
this Act, 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 107 of this Act 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 Act 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) carrying
out response actions under this title 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) To the extent that the provisions of this Act 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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 111

SUPERFUND

572

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 104(i) not less
than $50,000,000 per fiscal year for each of fiscal years 1987 and
1988, not less than $55,000,000 for fiscal year 1989, and not less
than $60,000,000 per fiscal year for each of fiscal years 1990, 1991,
1992, 1993, and 1994. Any funds 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 311(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
311(b) (relating to research, development, and demonstration)
other than basic research. Such amounts shall remain available until expended.
(2) SECTION 311(a).—From the amounts available in the
Fund, not more than the following amounts may be used for
the purposes of section 311(a) (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 311(a) in any fiscal year.
(3) SECTION 311(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 311(d) (relating to university hazardous substance research centers).
(o) NOTIFICATION PROCEDURES FOR LIMITATIONS ON CERTAIN
PAYMENTS.—Not later than 90 days after the enactment of this
subsection, 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.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
573

SUPERFUND

Sec. 112

(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.
(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
221(b) 1 of the Hazardous Substance Response Revenue Act of
1980) 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 the Internal Revenue Code of 1986 for the prior
fiscal year.
[42 U.S.C. 9611]
CLAIMS PROCEDURE

SEC. 112. (a) CLAIMS AGAINST THE FUND FOR RESPONSE
COSTS.—No claim may be asserted against the Fund pursuant to
section 111(a) 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 107. 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)(1) PRESCRIBING FORMS AND PROCEDURES.—The President
shall prescribe appropriate forms and procedures for claims filed
hereunder, 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 of
the United States Code 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
1 Section

December 31, 2002

221(b) was repealed by section 517(c)(1) of Public Law 99–499.

Q:\COMP\ENVIR2\CERCLA
Sec. 112

SUPERFUND

574

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)(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 Act to any claimant for damages or costs resulting
from a 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 Act 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 title,
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 107(a) after the date 6 years after the date of completion of all response action.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
575

SUPERFUND

Sec. 113

(2) CLAIMS FOR RECOVERY OF DAMAGES.—No claim may be
presented under this section for recovery of the damages referred to in section 107(a) 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 301(c).
(3) MINORS AND INCOMPETENTS.—The time limitations contained herein shall not begin to run—
(A) against a minor until the earlier of the date when
such minor reaches 18 years of age or the date on which
a legal representative 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) Regardless of any State statutory or common law to the
contrary, no person who asserts a claim against the Fund pursuant
to this title shall be deemed or held to have waived any other claim
not covered or assertable against the Fund under this title 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 title 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 title arising 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 111(c) (1) or (2), no other claim may be paid out of
the Fund for the same costs.
[42 U.S.C. 9612]
LITIGATION, JURISDICTION AND VENUE

SEC. 113. (a) Review of any regulation promulgated under this
Act 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) 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 Act, 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.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 113

SUPERFUND

576

(c) 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 title II of this Act,
or to the review of any regulation promulgated under the Internal
Revenue Code of 1954.
(d) No provision of this Act shall be deemed or held to moot
any litigation concerning any release of any hazardous substance,
or any damages associated therewith, commenced prior to enactment of this Act.
(e) NATIONWIDE SERVICE OF PROCESS.—In any action by the
United States under this Act, 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 107(a), during or following any civil action under section 106 or under section 107(a). 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 person to bring an action for contribution in the absence of a civil action under section 106 or
section 107.
(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 101(6)) under this
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
577

SUPERFUND

Sec. 113

Act, 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 301(c).
With respect to any facility listed on the National Priorities
List (NPL), any Federal facility identified under section 120
(relating to Federal facilities), or any vessel or facility at which
a remedial action under this Act is otherwise scheduled, an action for damages under this Act 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 Act 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 under section 104(b) or section 120 (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 the
enactment of the Superfund Amendments and Reauthorization
Act of 1986.
(2) ACTIONS FOR RECOVERY OF COSTS.—An initial action for
recovery of the costs referred to in section 107 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 104(c)(1)(C) 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 107 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 107 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—
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 113

SUPERFUND

578

(A) the date of judgment in any action under this Act
for recovery of such costs or damages, or
(B) the date of an administrative order under section
122(g) (relating to de minimis settlements) or 122(h) (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 title 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 119, an action
under section 107 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
of the United States Code (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 121 (relating to cleanup standards) to review any challenges to removal or remedial action selected under
section 104, or to review any order issued under section 106(a), in
any action except one of the following:
(1) An action under section 107 to recover response costs
or damages or for contribution.
(2) An action to enforce an order issued under section
106(a) or to recover a penalty for violation of such order.
(3) An action for reimbursement under section 106(b)(2).
(4) An action under section 310 (relating to citizens suits)
alleging that the removal or remedial action taken under section 104 or secured under section 106 was in violation of any
requirement of this Act. 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 106 in which the United States
has moved to compel a remedial action.
(i) INTERVENTION.—In any action commenced under this Act or
under the Solid Waste Disposal Act 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, unDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
579

SUPERFUND

Sec. 113

less 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 Act, 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 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 Act, 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 of the
United States Code 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.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 114

SUPERFUND

580

(ii) A reasonable opportunity to comment and provide information regarding the plan.
(iii) An opportunity for a public meeting in the affected area, in accordance with section 117(a)(2) (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 117(d). The President shall promulgate
regulations in accordance with chapter 5 of title 5 of the
United States Code 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 Act 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 Act 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.
[42 U.S.C. 9613]
RELATIONSHIP TO OTHER LAW

SEC. 114. (a) Nothing in this Act 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) Any person who receives compensation for removal costs or
damages or claims pursuant to this Act 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 Act.
(c) RECYCLED OIL.—
(1) SERVICE STATION DEALERS, ETC.—No person (including
the United States or any State) may recover, under the authorDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
581

SUPERFUND

Sec. 114

ity of subsection (a)(3) or (a)(4) of section 107, 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 106 against a service station dealer other
than a person described in subsection (a)(1) or (a)(2) of section
107, 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 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 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 and regulations promulgated pursuant to that Act.
(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 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.
(d) Except as provided in this title, no owner or operator of a
vessel or facility who establishes and maintains evidence of financial responsibility in accordance with this title 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 title 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.
[42 U.S.C. 9614]
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 115

SUPERFUND

582

AUTHORITY TO DELEGATE, ISSUE REGULATIONS

SEC. 115. 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 title.
[42 U.S.C. 9615]
SEC. 116. SCHEDULES.
(a) ASSESSMENT AND

LISTING OF FACILITIES.—It shall be a goal
of this Act 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 the date of enactment of the Superfund Amendments and Reauthorization Act of 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 enactment of the Superfund Amendments and Reauthorization Act of 1986, each facility
listed (as of the date of such enactment) 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 105 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 the
enactment of the Superfund Amendments and Reauthorization Act
of 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 the date of enactment of the
Superfund Amendments and Reauthorization Act of 1986, in accordance with the following schedule:
(1) not fewer than 275 by the date 36 months after the
date of enactment of the Superfund Amendments and Reauthorization Act of 1986, and
(2) if the requirement of paragraph (1) is not met, not
fewer than an additional 175 by the date 4 years after such
date of enactment, an additional 200 by the date 5 years after
such date of enactment, and a total of 650 by the date 5 years
after such date of enactment.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
583

SUPERFUND

Sec. 117

(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 the date of enactment of the Superfund Amendments and Reauthorization Act of 1986, at a rate not fewer than:
(1) 175 facilities during the first 36-month period after enactment of this subsection; and
(2) 200 additional facilities during the following 24 months
after such 36-month period.
[42 U.S.C. 9616]
SEC. 117. 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 104, 106, 120, or 122, 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
121(d)(4) (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 106 is taken,
or
(3) if any settlement or consent decree under section 106
or section 122 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 major local newspaper of general circulation. In addition, each item developed, received, published, or made available to the public under this secDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 118

SUPERFUND

584

tion 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.
[42 U.S.C. 9617]
SEC. 118. HIGH PRIORITY FOR DRINKING WATER SUPPLIES.

For purposes of taking action under section 104 or 106 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.
[42 U.S.C. 9618]
SEC. 119. 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 title
or under any other Federal law to any person for injuries,
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

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
585

SUPERFUND

Sec. 119

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 107(b)(3) 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 Act 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
title.
(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 title, 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;
(B) any Federal agency;
(C) a State or political subdivision which has entered
into a contract or cooperative agreement in accordance
with section 104(d)(1) of this title; or
(D) any potentially responsible party carrying out any
agreement under section 122 (relating to settlements) or
section 106 (relating to abatement).
(3) SOURCE OF FUNDING.—This subsection shall not be subject to section 1301 or 1341 of title 31 of the United States
Code or section 3732 of the Revised Statutes (41 U.S.C. 11) or
to section 3 of the Superfund Amendments and Reauthorization Act of 1986. For purposes of section 111, amounts expended pursuant to this subsection for indemnification of any
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 119

SUPERFUND

586

response action contractor (except with respect to federally
owned or operated facilities) shall be considered governmental
response costs incurred pursuant to section 104. If sufficient
funds are unavailable in the Hazardous Substance Superfund
established under subchapter A of chapter 98 of the Internal
Revenue Code of 1954 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.
(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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
587

SUPERFUND

Sec. 119

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 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 107, 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 subsection. Before
promulgation of the regulations, the President shall develop
guidelines to carry out this section. Development of such guidelines shall include reasonable opportunity for public comment.
(8) STUDY.—The Comptroller General shall conduct a
study in the fiscal year ending September 30, 1989, on the application of this subsection, including whether indemnification
agreements 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 107(a) 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—
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 119

SUPERFUND

588

(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 104(d)(1) of this Act; or
(D) any potentially responsible party carrying out an
agreement under section 106 or 122;
to provide any remedial action under this Act at a facility listed on the National Priorities List, or any removal under this
Act, 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 pursuant to section
311(b); and
(iii) Recipients 2 of grants (including sub-grantees)
under section 126 3 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 Act; and 4
(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, architec1 So in law. Clause (iii) was added by section 101(f) of Public Law 100–202 without striking
out the ‘‘and’’ at the end of clause (i).
2 So in law. ‘‘Recipients of grants’’ probably should be ‘‘recipient of a grant’’.
3 So in law. Should probably be ‘‘section 126 of the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. 9660a)’’.
4 So in law. The word ‘‘and’’ probably should not appear.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
589

SUPERFUND

Sec. 120

tural 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. The Federal selection procedures shall apply to appropriate contracts negotiated by all Federal governmental agencies involved in carrying out this Act. Such
procedures shall be followed by response action contractors and
subcontractors.
(g) SURETY BONDS.—
(1) If under the Act of August 24, 1935 (40 U.S.C. 270a–
270d), commonly referred to as the ‘‘Miller Act’’, surety bonds
are required for any direct Federal procurement of any response action contract and are not waived pursuant to the Act
of April 29, 1941 (40 U.S.C. 270e–270f), they shall be issued
in accordance with such Act of August 24, 1935.
(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
injury or property damage whether or not caused by a breach
of the bonded contract.
(4) Nothing in this subsection shall be construed as preempting, limiting, superseding, affecting, applying to, or modifying any State 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.
[42 U.S.C. 9619]
SEC. 120. FEDERAL FACILITIES.1
(a) APPLICATION OF ACT TO

FEDERAL GOVERNMENT.—

1 Section 120(b) of the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99–499)
provides:
(b) LIMITED GRANDFATHER.—Section 120 of CERCLA 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 [October 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
Continued

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 120

SUPERFUND

590

(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 Act in the same manner and to the same
extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 107 of this Act.
Nothing in this section shall be construed to affect the liability
of any person or entity under sections 106 and 107.
(2) APPLICATION OF REQUIREMENTS TO FEDERAL FACILITIES.—All guidelines, rules, regulations, and criteria which are
applicable to preliminary assessments carried out under this
Act 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 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 Act.
(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 Act shall be construed to require a
State to comply with section 104(c)(3) 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 (in addition to the information required under section 3016(a)(3) of such Act) information on contamination from each facility owned or operated by the department, agency, or instrumentality if such contamination affects con(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.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
591

SUPERFUND

Sec. 120

tiguous 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 and subsection (b) of this section regarding any Federal facility and notice of each subsequent action taken under this Act with respect to the facility.
(2) Information submitted by each department, agency, or
instrumentality of the United States under section 3005 or
3010 of such Act.
(3) Information submitted by the department, agency, or
instrumentality under section 103 of this Act.
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 105 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 105(a)(8)(A) 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 Act, to a release or
threatened release of a hazardous substance.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 120

SUPERFUND

592

(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) RIFS.—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 remedial investigation and feasibility study for such facility. In the case of any facility which
is listed on such list before the date of the enactment of this
section, 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 such date of enactment. 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 117.
(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.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
593

SUPERFUND

Sec. 120

(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.
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 Stateby-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 122 (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 106 of this Act.
(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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 120

SUPERFUND

594

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 121.
(g) TRANSFER OF AUTHORITIES.—Except for authorities which
are delegated by the Administrator to an officer or employee of the
Environmental Protection Agency, no authority 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 the enactment of this subsection
but not later than 18 months after the date of such enactment,
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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
595

SUPERFUND

Sec. 120

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
(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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 120

SUPERFUND

596

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 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 FedDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
597

SUPERFUND

Sec. 120

eral agency (including any rights or obligations under
sections 106, 107, and 120 existing prior to transfer)
with respect to a property transferred under this subparagraph.
(4) IDENTIFICATION OF UNCONTAMINATED PROPERTY.—(A)
In the case of real property to which this paragraph applies (as
set forth in subparagraph (E)), 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.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 120

SUPERFUND

598

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 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 the
date of the enactment of the Community Environmental Response Facilitation Act, the identification and concurrence required under subparagraphs (A) and (B), respectively, shall be
made not later than 18 months after such date of enactment.
(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 the date of
the enactment of the Community Environmental Response Facilitation Act, 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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
599

SUPERFUND

Sec. 120

(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.
(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, United States Code.
(IV) Any provision of law authorizing the closure or realignment of a military installation enacted on or after the
date of enactment of the Community Environmental Response Facilitation Act.
(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 (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
title or under title III of the Superfund Amendments and Reauthorization Act of 1986 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 proDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 121

SUPERFUND

600

viding for any such exemption. Such notification shall include
a statement of the reasons for the granting of the exemption.
An exemption under this paragraph shall be for a specified period which may not exceed one year. Additional exemptions
may be granted, each upon the President’s issuance of a new
order under this paragraph for the site or facility 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
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 Act or
under title III of the Superfund Amendments and Reauthorization Act of 1986.
[42 U.S.C. 9620]
SEC. 121. CLEANUP STANDARDS.1
(a) SELECTION OF REMEDIAL

ACTION.—The President shall select appropriate remedial actions determined to be necessary to be
carried out under section 104 or secured under section 106 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 dis1 Section 121(b) of the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99–499)
provides:
(b) EFFECTIVE DATE.—With respect to section 121 of CERCLA, 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 [October 17, 1986].
(2) If the ROD was signed, or the consent decree lodged, within the 30-day period immediately following enactment of the Act, 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 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.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
601

SUPERFUND

Sec. 121

posal 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 long-term effectiveness of various alternatives. In assessing alternative remedial actions, the President shall, at a minimum, take into account:
(A) the long-term uncertainties associated with land disposal;
(B) the goals, objectives, and requirements of the Solid
Waste Disposal Act;
(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
104 or 106, 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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 121

SUPERFUND

602

under this Act 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—
(i) any standard, requirement, criteria, or limitation under
any Federal environmental law, including, but not limited to,
the Toxic Substances Control Act, the Safe Drinking Water
Act, the Clean Air Act, the Clean Water Act, the Marine Protection, Research and Sanctuaries Act, or the Solid Waste Disposal Act; 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 104 or secured under section 106 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 and water quality criteria established under
section 304 or 303 of the Clean Water Act, 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 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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
603

SUPERFUND

Sec. 121

(II) on the basis of measurements or projections, there is
or will be no statistically significant increase of such constituents from such groundwater in such surface water at the point
of entry or at any point where there is reason to believe accumulation of constituents may occur downstream; and
(III) the remedial action 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 (or,
where applicable, in compliance with the Toxic Substances Control
Act or other applicable Federal law) and all applicable State requirements. Such substance or pollutant or contaminant may be
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 121

SUPERFUND

604

transferred to a land disposal facility 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.
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 104 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.
(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 Act in the United States district court
for the district in which the facility is located. Any consent decree
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
605

SUPERFUND

Sec. 121

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.
(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 responDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 121

SUPERFUND

606

sible 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 106. 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 106 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 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 eviDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
607

SUPERFUND

Sec. 122

dence, 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.
[42 U.S.C. 9621]
SEC. 122. 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 104(b)) 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 inappropriate. A decision of
the President to use or not to use the procedures in this section is
not subject to judicial review.
(b) AGREEMENTS WITH POTENTIALLY RESPONSIBLE PARTIES.—
(1) MIXED FUNDING.—An agreement 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 107 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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 122

SUPERFUND

608

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 Act 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 contained 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 106 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 106 or
107 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 Act 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 106, 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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
609

SUPERFUND

Sec. 122

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.
(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) 104(b) AGREEMENTS.—Whenever the President enters
into an agreement under this section with any potentially responsible party with respect to action under section 104(b), 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 104(b))
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 107(a)), to the extent such
information is available.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 122

SUPERFUND

610

(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 104 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 limited
to) those applicable to attorney work product. Nothing contained in this paragraph or in other provisions of this Act 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 104(a) or take any action under section 106 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
104(b) for 90 days after providing notice and information
under this subsection with respect to such action. The
President may commence any additional studies or investigations authorized under section 104(b), 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 106 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
106. Persons receiving notice and information under paragraph (1) of this subsection with respect to action under
section 104(b) shall have 60 days from the date of receipt
of such notice to make a proposal to the President for undertaking or financing the action under section 104(b).
(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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
611

SUPERFUND

Sec. 122

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.
(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 106 has not been submitted within 60 days of the provision of notice pursuant to this subsection, the President may
thereafter commence action under section 104(a) or take an action against any person under section 106 of this Act. If the
President determines that a good faith proposal for underDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 122

SUPERFUND

612

taking or financing action under section 104(b) has not been
submitted within 60 days after the provision of notice pursuant
to this subsection, the President may thereafter commence action under section 104(b).
(5) SIGNIFICANT THREATS.—Nothing in this subsection
shall limit the President’s authority to undertake response or
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 Act, has initiated a remedial investigation and feasibility study for a particular facility under this Act, 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 Act, 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 105 of this Act.
(C) The person is in full compliance with a consent decree under section 106 (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 3004 (c), (d), (e), (f), (g), (m),
(o), (p), (u), and (v) and 3005(c) of the Solid Waste Disposal
Act, 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
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
613

SUPERFUND

Sec. 122

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 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 Act 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 106 or 107 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 Act 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 covenant where such liability arises out of conditions which are
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 122

SUPERFUND

614

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 106 or 107
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 106 or 107 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 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).
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
615

SUPERFUND

Sec. 122

(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 enforce any such administrative
order.
(5) EFFECT OF AGREEMENT.—A party who has resolved its
liability to the United States under this subsection shall not be
liable for claims for contribution regarding matters addressed
in the settlement. Such settlement does not discharge any of
the other potentially responsible parties unless its terms so
provide, but it reduces the potential liability of the others by
the amount of the settlement.
(6) SETTLEMENTS WITH OTHER POTENTIALLY RESPONSIBLE
PARTIES.—Nothing in this subsection shall be construed to affect the authority of the President to reach settlements with
other potentially responsible parties under this Act.
(7) REDUCTION IN SETTLEMENT AMOUNT BASED ON LIMITED
ABILITY TO PAY.—
(A) IN GENERAL.—The condition for settlement under
this paragraph is that the potentially responsible party is
a person who demonstrates to the President an inability or
a limited ability to pay response costs.
(B) CONSIDERATIONS.—In determining whether or not
a demonstration is made under subparagraph (A) by a person, the President shall take into consideration the ability
of the person to pay response costs and still maintain its
basic business operations, including consideration of the
overall financial condition of the person and demonstrable
constraints on the ability of the person to raise revenues.
(C) INFORMATION.—A person requesting settlement
under this paragraph shall promptly provide the President
with all relevant information needed to determine the ability of the person to pay response costs.
(D) ALTERNATIVE PAYMENT METHODS.—If the President
determines that a person is unable to pay its total settlement amount at the time of settlement, the President shall
consider such alternative payment methods as may be necessary or appropriate.
(8) ADDITIONAL CONDITIONS FOR EXPEDITED SETTLEMENTS.—
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 122

SUPERFUND

616

(A) WAIVER OF CLAIMS.—The President shall require,
as a condition for settlement under this subsection, that a
potentially responsible party waive all of the claims (including a claim for contribution under this Act) that the
party may have against other potentially responsible parties for response costs incurred with respect to the facility,
unless the President determines that requiring a waiver
would be unjust.
(B) FAILURE TO COMPLY.—The President may decline
to offer a settlement to a potentially responsible party
under this subsection if the President determines that the
potentially responsible party has failed to comply with any
request for access or information or an administrative subpoena issued by the President under this Act or has impeded or is impeding, through action or inaction, the performance of a response action with respect to the facility.
(C) RESPONSIBILITY TO PROVIDE INFORMATION AND ACCESS.—A potentially responsible party that enters into a
settlement under this subsection shall not be relieved of
the responsibility to provide any information or access requested in accordance with subsection (e)(3)(B) or section
104(e).
(9) BASIS OF DETERMINATION.—If the President determines
that a potentially responsible party is not eligible for settlement under this subsection, the President shall provide the
reasons for the determination in writing to the potentially responsible party that requested a settlement under this subsection.
(10) NOTIFICATION.—As soon as practicable after receipt of
sufficient information to make a determination, the President
shall notify any person that the President determines is eligible under paragraph (1) of the person’s eligibility for an expedited settlement.
(11) NO JUDICIAL REVIEW.—A determination by the President under paragraph (7), (8), (9), or (10) shall not be subject
to judicial review.
(12) NOTICE OF SETTLEMENT.—After a settlement under
this subsection becomes final with respect to a facility, the
President shall promptly notify potentially responsible parties
at the facility that have not resolved their liability to the
United States of the settlement.
(h) COST RECOVERY SETTLEMENT AUTHORITY.—
(1) AUTHORITY TO SETTLE.—The head of any department or
agency with authority to undertake a response action under
this Act pursuant to the national contingency plan may consider, compromise, and settle a claim under section 107 for
costs incurred by the United States Government if the claim
has not been referred to the Department of Justice for further
action. In the case of any facility where the total response costs
exceed $500,000 (excluding interest), any claim referred to in
the preceding sentence may be compromised and settled only
with the prior written approval of the Attorney General.
(2) USE OF ARBITRATION.—Arbitration in accordance with
regulations promulgated under this subsection may be used as
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
617

SUPERFUND

Sec. 122

a method of settling claims of the United States where the
total response costs for the facility concerned do not exceed
$500,000 (excluding interest). After consultation with the Attorney General, the department or agency head may establish
and publish regulations for the use of arbitration or settlement
under this subsection.
(3) RECOVERY OF CLAIMS.—If any person fails to pay a
claim that has been settled under this subsection, the department or agency head shall request the Attorney General to
bring a civil action in an appropriate district court to recover
the amount of such claim, plus costs, attorneys’ fees, and interest from the date of the settlement. In such an action, the
terms of the settlement shall not be subject to review.
(4) CLAIMS FOR CONTRIBUTION.—A person who has resolved
its liability to the United States under this subsection shall not
be liable for claims for contribution regarding matters addressed in the settlement. Such settlement shall 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.
(i) SETTLEMENT PROCEDURES.—
(1) PUBLICATION IN FEDERAL REGISTER.—At least 30 days
before any settlement (including any settlement arrived at
through arbitration) may become final under subsection (h), or
under subsection (g) in the case of a settlement embodied in an
administrative order, the head of the department or agency
which has jurisdiction over the proposed settlement shall publish in the Federal Register notice of the proposed settlement.
The notice shall identify the facility concerned and the parties
to the proposed settlement.
(2) COMMENT PERIOD.—For a 30-day period beginning on
the date of publication of notice under paragraph (1) of a proposed settlement, the head of the department or agency which
has jurisdiction over the proposed settlement shall provide an
opportunity for persons who are not parties to the proposed
settlement to file written comments relating to the proposed
settlement.
(3) CONSIDERATION OF COMMENTS.—The head of the department or agency shall consider any comments filed under
paragraph (2) in determining whether or not to consent to the
proposed settlement and may withdraw or withhold consent to
the proposed settlement if such comments disclose facts or considerations which indicate the proposed settlement is inappropriate, improper, or inadequate.
(j) NATURAL RESOURCES.—
(1) NOTIFICATION OF TRUSTEE.—Where a release or threatened release of any hazardous substance that is the subject of
negotiations under this section may have resulted in damages
to natural resources under the trusteeship of the United
States, the President shall notify the Federal natural resource
trustee of the negotiations and shall encourage the participation of such trustee in the negotiations.
(2) COVENANT NOT TO SUE.—An agreement under this section may contain a covenant not to sue under section
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 123

SUPERFUND

618

107(a)(4)(C) for damages to natural resources under the trusteeship of the United States resulting from the release or
threatened release of hazardous substances that is the subject
of the agreement, but only if the Federal natural resource
trustee has agreed in writing to such covenant. The Federal
natural resource trustee may agree to such covenant if the potentially responsible party agrees to undertake appropriate actions necessary to protect and restore the natural resources
damaged by such release or threatened release of hazardous
substances.
(k) SECTION NOT APPLICABLE TO VESSELS.—The provisions of
this section shall not apply to releases from a vessel.
(l) CIVIL PENALTIES.—A potentially responsible party which is
a party to an administrative order or consent decree entered pursuant to an agreement under this section or section 120 (relating to
Federal facilities) or which is a party to an agreement under section 120 and which fails or refuses to comply with any term or condition of the order, decree or agreement shall be subject to a civil
penalty in accordance with section 109.
(m) APPLICABILITY OF GENERAL PRINCIPLES OF LAW.—In the
case of consent decrees and other settlements under this section
(including covenants not to sue), no provision of this Act shall be
construed to preclude or otherwise affect the applicability of general principles of law regarding the setting aside or modification of
consent decrees or other settlements.
[42 U.S.C. 9622]
SEC. 123. REIMBURSEMENT TO LOCAL GOVERNMENTS.
(a) APPLICATION.—Any general purpose unit of

local government for a political subdivision which is affected by a release or
threatened release at any facility may apply to the President for
reimbursement under this section.
(b) REIMBURSEMENT.—
(1) TEMPORARY EMERGENCY MEASURES.—The President is
authorized to reimburse local community authorities for expenses incurred (before or after the enactment of the Superfund Amendments and Reauthorization Act of 1986) in carrying out temporary emergency measures necessary to prevent
or mitigate injury to human health or the environment associated with the release or threatened release of any hazardous
substance or pollutant or contaminant. Such measures may include, where appropriate, security fencing to limit access, response to fires and explosions, and other measures which require immediate response at the local level.
(2) LOCAL FUNDS NOT SUPPLANTED.—Reimbursement under
this section shall not supplant local funds normally provided
for response.
(c) AMOUNT.—The amount of any reimbursement to any local
authority under subsection (b)(1) may not exceed $25,000 for a single response. The reimbursement under this section with respect to
a single facility shall be limited to the units of local government
having jurisdiction over the political subdivision in which the facility is located.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
619

SUPERFUND

Sec. 125

(d) PROCEDURE.—Reimbursements authorized pursuant to this
section shall be in accordance with rules promulgated by the Administrator within one year after the enactment of the Superfund
Amendments and Reauthorization Act of 1986.
[42 U.S.C. 9623]
SEC. 124. METHANE RECOVERY.
(a) IN GENERAL.—In the case

of a facility at which equipment
for the recovery or processing (including recirculation of condensate) of methane has been installed, for purposes of this Act:
(1) The owner or operator of such equipment shall not be
considered an ‘‘owner or operator’’, as defined in section
101(20), with respect to such facility.
(2) The owner or operator of such equipment shall not be
considered to have arranged for disposal or treatment of any
hazardous substance at such facility pursuant to section 107 of
this Act.
(3) The owner or operator of such equipment shall not be
subject to any action under section 106 with respect to such facility.
(b) EXCEPTIONS.—Subsection (a) does not apply with respect to
a release or threatened release of a hazardous substance from a facility described in subsection (a) if either of the following circumstances exist:
(1) The release or threatened release was primarily caused
by activities of the owner or operator of the equipment described in subsection (a).
(2) The owner or operator of such equipment would be covered by paragraph (1), (2), (3), or (4) of subsection (a) of section
107 with respect to such release or threatened release if he
were not the owner or operator of such equipment.
In the case of any release or threatened release referred to in paragraph (1), the owner or operator of the equipment described in subsection (a) shall be liable under this Act only for costs or damages
primarily caused by the activities of such owner or operator.
[42 U.S.C. 9624]
SEC. 125. SECTION 3001(b)(3)(A)(i) WASTE.
(a) REVISION OF HAZARD RANKING

SYSTEM.—This section shall
apply only to facilities which are not included or proposed for inclusion on the National Priorities List and which contain substantial
volumes of waste described in section 3001(b)(3)(A)(i) of the Solid
Waste Disposal Act. As expeditiously as practicable, the President
shall revise the hazard ranking system in effect under the National
Contingency Plan with respect to such facilities in a manner which
assures appropriate consideration of each of the following site-specific characteristics of such facilities:
(1) The quantity, toxicity, and concentrations of hazardous
constituents which are present in such waste and a comparison
thereof with other wastes.
(2) The extent of, and potential for, release of such hazardous constituents into the environment.
(3) The degree of risk to human health and the environment posed by such constituents.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 126

SUPERFUND

620

(b) INCLUSION PROHIBITED.—Until the hazard ranking system
is revised as required by this section, the President may not include on the National Priorities List any facility which contains
substantial volumes of waste described in section 3001(b)(3)(A)(i) of
the Solid Waste Disposal Act on the basis of an evaluation made
principally on the volume of such waste and not on the concentrations of the hazardous constituents of such waste. Nothing in this
section shall be construed to affect the President’s authority to include any such facility on the National Priorities List based on the
presence of other substances at such facility or to exercise any
other authority of this Act with respect to such other substances.
[42 U.S.C. 9625]
SEC. 126. INDIAN TRIBES.
(a) TREATMENT GENERALLY.—The

governing body of an Indian
tribe shall be afforded substantially the same treatment as a State
with respect to the provisions of section 103(a) (regarding notification of releases), section 104(c)(2) (regarding consultation on remedial actions), section 104(e) (regarding access to information), section 104(i) (regarding health authorities) and section 105 (regarding roles and responsibilities under the national contingency plan
and submittal of priorities for remedial action, but not including
the provision regarding the inclusion of at least one facility per
State on the National Priorities List).
(b) COMMUNITY RELOCATION.—Should the President determine
that proper remedial action is the permanent relocation of tribal
members away from a contaminated site because it is cost effective
and necessary to protect their health and welfare, such finding
must be concurred in by the affected tribal government before relocation shall occur. The President, in cooperation with the Secretary
of the Interior, shall also assure that all benefits of the relocation
program are provided to the affected tribe and that alternative
land of equivalent value is available and satisfactory to the tribe.
Any lands acquired for relocation of tribal members shall be held
in trust by the United States for the benefit of the tribe.
(c) STUDY.—The President shall conduct a survey, in consultation with the Indian tribes, to determine the extent of hazardous
waste sites on Indian lands. Such survey shall be included within
a report which shall make recommendations on the program needs
of tribes under this Act, with particular emphasis on how tribal
participation in the administration of such programs can be maximized. Such report shall be submitted to Congress along with the
President’s budget request for fiscal year 1988.
(d) LIMITATION.—Notwithstanding any other provision of this
Act, no action under this Act by an Indian tribe shall be barred
until the later of the following:
(1) The applicable period of limitations has expired.
(2) 2 years after the United States, in its capacity as trustee for the tribe, gives written notice to the governing body of
the tribe that it will not present a claim or commence an action
on behalf of the tribe or fails to present a claim or commence
an action within the time limitations specified in this Act.
[42 U.S.C. 9626]
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
621

SUPERFUND

Sec. 127

SEC. 127. RECYCLING TRANSACTIONS.
(a) LIABILITY CLARIFICATION.—

(1) As provided in subsections (b), (c), (d), and (e), a person
who arranged for recycling of recyclable material shall not be
liable under sections 107(a)(3) and 107(a)(4) with respect to
such material.
(2) A determination whether or not any person shall be liable under section 107(a)(3) or section 107(a)(4) for any material
that is not a recyclable material as that term is used in subsections (b) and (c), (d), or (e) of this section shall be made,
without regard to subsections (b), (c), (d), or (e) of this section.
(b) RECYCLABLE MATERIAL DEFINED.—For purposes of this section, the term ‘‘recyclable material’’ means scrap paper, scrap plastic, scrap glass, scrap textiles, scrap rubber (other than whole
tires), scrap metal, or spent lead-acid, spent nickel-cadmium, and
other spent batteries, as well as minor amounts of material incident to or adhering to the scrap material as a result of its normal
and customary use prior to becoming scrap; except that such term
shall not include—
(1) shipping containers of a capacity from 30 liters to 3,000
liters, whether intact or not, having any hazardous substance
(but not metal bits and pieces or hazardous substance that
form an integral part of the container) contained in or adhering thereto; or
(2) any item of material that contained polychlorinated
biphenyls at a concentration in excess of 50 parts per million
or any new standard promulgated pursuant to applicable Federal laws.
(c) TRANSACTIONS INVOLVING SCRAP PAPER, PLASTIC, GLASS,
TEXTILES, OR RUBBER.—Transactions involving scrap paper, scrap
plastic, scrap glass, scrap textiles, or scrap rubber (other than
whole tires) shall be deemed to be arranging for recycling if the
person who arranged for the transaction (by selling recyclable material or otherwise arranging for the recycling of recyclable material) can demonstrate by a preponderance of the evidence that all
of the following criteria were met at the time of the transaction:
(1) The recyclable material met a commercial specification
grade.
(2) A market existed for the recyclable material.
(3) A substantial portion of the recyclable material was
made available for use as feedstock for the manufacture of a
new saleable product.
(4) The recyclable material could have been a replacement
or substitute for a virgin raw material, or the product to be
made from the recyclable material could have been a replacement or substitute for a product made, in whole or in part,
from a virgin raw material.
(5) For transactions occurring 90 days or more after the
date of enactment of this section, the person exercised reasonable care to determine that the facility where the recyclable
material was handled, processed, reclaimed, or otherwise managed by another person (hereinafter in this section referred to
as a ‘‘consuming facility’’) was in compliance with substantive
(not procedural or administrative) provisions of any Federal,
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 127

SUPERFUND

622

State, or local environmental law or regulation, or compliance
order or decree issued pursuant thereto, applicable to the handling, processing, reclamation, storage, or other management
activities associated with recyclable material.
(6) For purposes of this subsection, ‘‘reasonable care’’ shall
be determined using criteria that include (but are not limited
to)—
(A) the price paid in the recycling transaction;
(B) the ability of the person to detect the nature of the
consuming facility’s operations concerning its handling,
processing, reclamation, or other management activities
associated with recyclable material; and
(C) the result of inquiries made to the appropriate
Federal, State, or local environmental agency (or agencies)
regarding the consuming facility’s past and current compliance with substantive (not procedural or administrative)
provisions of any Federal, State, or local environmental
law or regulation, or compliance order or decree issued
pursuant thereto, applicable to the handling, processing,
reclamation, storage, or other management activities associated with the recyclable material. For the purposes of
this paragraph, a requirement to obtain a permit applicable to the handling, processing, reclamation, or other management activity associated with the recyclable materials
shall be deemed to be a substantive provision.
(d) TRANSACTIONS INVOLVING SCRAP METAL.—
(1) Transactions involving scrap metal shall be deemed to
be arranging for recycling if the person who arranged for the
transaction (by selling recyclable material or otherwise arranging for the recycling of recyclable material) can demonstrate by
a preponderance of the evidence that at the time of the
transaction—
(A) the person met the criteria set forth in subsection
(c) with respect to the scrap metal;
(B) the person was in compliance with any applicable
regulations or standards regarding the storage, transport,
management, or other activities associated with the recycling of scrap metal that the Administrator promulgates
under the Solid Waste Disposal Act subsequent to the enactment of this section and with regard to transactions occurring after the effective date of such regulations or
standards; and
(C) the person did not melt the scrap metal prior to
the transaction.
(2) For purposes of paragraph (1)(C), melting of scrap
metal does not include the thermal separation of 2 or more materials due to differences in their melting points (referred to as
‘‘sweating’’).
(3) For purposes of this subsection, the term ‘‘scrap metal’’
means bits and pieces of metal parts (e.g., bars, turnings, rods,
sheets, wire) or metal pieces that may be combined together
with bolts or soldering (e.g., radiators, scrap automobiles, railroad box cars), which when worn or superfluous can be recyDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
623

SUPERFUND

Sec. 127

cled, except for scrap metals that the Administrator excludes
from this definition by regulation.
(e) TRANSACTIONS INVOLVING BATTERIES.—Transactions involving spent lead-acid batteries, spent nickel-cadmium batteries, or
other spent batteries shall be deemed to be arranging for recycling
if the person who arranged for the transaction (by selling recyclable
material or otherwise arranging for the recycling of recyclable material) can demonstrate by a preponderance of the evidence that at
the time of the transaction—
(1) the person met the criteria set forth in subsection (c)
with respect to the spent lead-acid batteries, spent nickel-cadmium batteries, or other spent batteries, but the person did
not recover the valuable components of such batteries; and
(2)(A) with respect to transactions involving lead-acid batteries, the person was in compliance with applicable Federal
environmental regulations or standards, and any amendments
thereto, regarding the storage, transport, management, or
other activities associated with the recycling of spent lead-acid
batteries;
(B) with respect to transactions involving nickel-cadmium
batteries, Federal environmental regulations or standards are
in effect regarding the storage, transport, management, or
other activities associated with the recycling of spent nickelcadmium batteries, and the person was in compliance with applicable regulations or standards or any amendments thereto;
or
(C) with respect to transactions involving other spent batteries, Federal environmental regulations or standards are in
effect regarding the storage, transport, management, or other
activities associated with the recycling of such batteries, and
the person was in compliance with applicable regulations or
standards or any amendments thereto.
(f) EXCLUSIONS.—
(1) The exemptions set forth in subsections (c), (d), and (e)
shall not apply if—
(A) the person had an objectively reasonable basis to
believe at the time of the recycling transaction—
(i) that the recyclable material would not be recycled;
(ii) that the recyclable material would be burned
as fuel, or for energy recovery or incineration; or
(iii) for transactions occurring before 90 days after
the date of the enactment of this section, that the consuming facility was not in compliance with a substantive (not procedural or administrative) provision of
any Federal, State, or local environmental law or regulation, or compliance order or decree issued pursuant
thereto, applicable to the handling, processing, reclamation, or other management activities associated
with the recyclable material;
(B) the person had reason to believe that hazardous
substances had been added to the recyclable material for
purposes other than processing for recycling; or
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 127

SUPERFUND

624

(C) the person failed to exercise reasonable care with
respect to the management and handling of the recyclable
material (including adhering to customary industry practices current at the time of the recycling transaction designed to minimize, through source control, contamination
of the recyclable material by hazardous substances).
(2) For purposes of this subsection, an objectively reasonable basis for belief shall be determined using criteria that include (but are not limited to) the size of the person’s business,
customary industry practices (including customary industry
practices current at the time of the recycling transaction designed to minimize, through source control, contamination of
the recyclable material by hazardous substances), the price
paid in the recycling transaction, and the ability of the person
to detect the nature of the consuming facility’s operations concerning its handling, processing, reclamation, or other management activities associated with the recyclable material.
(3) For purposes of this subsection, a requirement to obtain
a permit applicable to the handling, processing, reclamation, or
other management activities associated with recyclable material shall be deemed to be a substantive provision.
(g) EFFECT ON OTHER LIABILITY.—Nothing in this section shall
be deemed to affect the liability of a person under paragraph (1)
or (2) of section 107(a).
(h) REGULATIONS.—The Administrator has the authority, under
section 115, to promulgate additional regulations concerning this
section.
(i) EFFECT ON PENDING OR CONCLUDED ACTIONS.—The exemptions provided in this section shall not affect any concluded judicial
or administrative action or any pending judicial action initiated by
the United States prior to enactment of this section.
(j) LIABILITY FOR ATTORNEY’S FEES FOR CERTAIN ACTIONS.—
Any person who commences an action in contribution against a
person who is not liable by operation of this section shall be liable
to that person for all reasonable costs of defending that action, including all reasonable attorney’s and expert witness fees.
(k) RELATIONSHIP TO LIABILITY UNDER OTHER LAWS.—Nothing
in this section shall affect—
(1) liability under any other Federal, State, or local statute
or regulation promulgated pursuant to any such statute, including any requirements promulgated by the Administrator
under the Solid Waste Disposal Act; or
(2) the ability of the Administrator to promulgate regulations under any other statute, including the Solid Waste Disposal Act.
(l) LIMITATION ON STATUTORY CONSTRUCTION.—Nothing in this
section shall be construed to—
(1) affect any defenses or liabilities of any person to whom
subsection (a)(1) does not apply; or
(2) create any presumption of liability against any person
to whom subsection (a)(1) does not apply.
[42 U.S.C. 9627]
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
625

SUPERFUND

SEC. 128. STATE RESPONSE PROGRAMS.
(a) ASSISTANCE TO STATES.—
(1) IN GENERAL.—
(A) STATES.—The Administrator

Sec. 128

may award a grant to
a State or Indian tribe that—
(i) has a response program that includes each of
the elements, or is taking reasonable steps to include
each of the elements, listed in paragraph (2); or
(ii) is a party to a memorandum of agreement
with the Administrator for voluntary response programs.
(B) USE OF GRANTS BY STATES.—
(i) IN GENERAL.—A State or Indian tribe may use
a grant under this subsection to establish or enhance
the response program of the State or Indian tribe.
(ii) ADDITIONAL USES.—In addition to the uses
under clause (i), a State or Indian tribe may use a
grant under this subsection to—
(I) capitalize a revolving loan fund for
brownfield remediation under section 104(k)(3); or
(II) purchase insurance or develop a risk sharing pool, an indemnity pool, or insurance mechanism to provide financing for response actions
under a State response program.
(2) ELEMENTS.—The elements of a State or Indian tribe response program referred to in paragraph (1)(A)(i) are the following:
(A) Timely survey and inventory of brownfield sites in
the State.
(B) Oversight and enforcement authorities or other
mechanisms, and resources, that are adequate to ensure
that—
(i) a response action will—
(I) protect human health and the environment; and
(II) be conducted in accordance with applicable Federal and State law; and
(ii) if the person conducting the response action
fails to complete the necessary response activities, including operation and maintenance or long-term monitoring activities, the necessary response activities are
completed.
(C) Mechanisms and resources to provide meaningful
opportunities for public participation, including—
(i) public access to documents that the State, Indian tribe, or party conducting the cleanup is relying
on or developing in making cleanup decisions or conducting site activities;
(ii) prior notice and opportunity for comment on
proposed cleanup plans and site activities; and
(iii) a mechanism by which—
(I) a person that is or may be affected by a release or threatened release of a hazardous substance, pollutant, or contaminant at a brownfield

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 128

SUPERFUND

626

site located in the community in which the person
works or resides may request the conduct of a site
assessment; and
(II) an appropriate State official shall consider
and appropriately respond to a request under subclause (I).
(D) Mechanisms for approval of a cleanup plan, and a
requirement for verification by and certification or similar
documentation from the State, an Indian tribe, or a licensed site professional to the person conducting a response action indicating that the response is complete.
(3) FUNDING.—There is authorized to be appropriated to
carry out this subsection $50,000,000 for each of fiscal years
2002 through 2006.
(b) ENFORCEMENT IN CASES OF A RELEASE SUBJECT TO STATE
PROGRAM.—
(1) ENFORCEMENT.—
(A) IN GENERAL.— Except as provided in subparagraph
(B) and subject to subparagraph (C), in the case of an eligible response site at which—
(i) there is a release or threatened release of a
hazardous substance, pollutant, or contaminant; and
(ii) a person is conducting or has completed a response action regarding the specific release that is addressed by the response action that is in compliance
with the State program that specifically governs response actions for the protection of public health and
the environment,
the President may not use authority under this Act to take
an administrative or judicial enforcement action under section 106(a) or to take a judicial enforcement action to recover response costs under section 107(a) against the person regarding the specific release that is addressed by the
response action.
(B) EXCEPTIONS.—The President may bring an administrative or judicial enforcement action under this Act during or after completion of a response action described in
subparagraph (A) with respect to a release or threatened
release at an eligible response site described in that subparagraph if—
(i) the State requests that the President provide
assistance in the performance of a response action;
(ii) the Administrator determines that contamination has migrated or will migrate across a State line,
resulting in the need for further response action to
protect human health or the environment, or the
President determines that contamination has migrated
or is likely to migrate onto property subject to the jurisdiction, custody, or control of a department, agency,
or instrumentality of the United States and may impact the authorized purposes of the Federal property;
(iii) after taking into consideration the response
activities already taken, the Administrator determines
that—
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
627

SUPERFUND

Sec. 128

(I) a release or threatened release may
present
an
imminent
and
substantial
endangerment to public health or welfare or the
environment; and
(II) additional response actions are likely to
be necessary to address, prevent, limit, or mitigate
the release or threatened release; or
(iv) the Administrator, after consultation with the
State, determines that information, that on the earlier
of the date on which cleanup was approved or completed, was not known by the State, as recorded in
documents prepared or relied on in selecting or conducting the cleanup, has been discovered regarding
the contamination or conditions at a facility such that
the contamination or conditions at the facility present
a threat requiring further remediation to protect public health or welfare or the environment. Consultation
with the State shall not limit the ability of the Administrator to make this determination.
(C) PUBLIC RECORD.—The limitations on the authority
of the President under subparagraph (A) apply only at
sites in States that maintain, update not less than annually, and make available to the public a record of sites, by
name and location, at which response actions have been
completed in the previous year and are planned to be addressed under the State program that specifically governs
response actions for the protection of public health and the
environment in the upcoming year. The public record shall
identify whether or not the site, on completion of the response action, will be suitable for unrestricted use and, if
not, shall identify the institutional controls relied on in the
remedy. Each State and tribe receiving financial assistance
under subsection (a) shall maintain and make available to
the public a record of sites as provided in this paragraph.
(D) EPA NOTIFICATION.—
(i) IN GENERAL.—In the case of an eligible response site at which there is a release or threatened
release of a hazardous substance, pollutant, or contaminant and for which the Administrator intends to
carry out an action that may be barred under subparagraph (A), the Administrator shall—
(I) notify the State of the action the Administrator intends to take; and
(II)(aa) wait 48 hours for a reply from the
State under clause (ii); or
(bb) if the State fails to reply to the notification or if the Administrator makes a determination under clause (iii), take immediate action
under that clause.
(ii) STATE REPLY.—Not later than 48 hours after a
State receives notice from the Administrator under
clause (i), the State shall notify the Administrator if—
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 128

SUPERFUND

628

(I) the release at the eligible response site is
or has been subject to a cleanup conducted under
a State program; and
(II) the State is planning to abate the release
or threatened release, any actions that are
planned.
(iii) IMMEDIATE FEDERAL ACTION.—The Administrator may take action immediately after giving notification under clause (i) without waiting for a State
reply under clause (ii) if the Administrator determines
that one or more exceptions under subparagraph (B)
are met.
(E) REPORT TO CONGRESS.—Not later than 90 days
after the date of initiation of any enforcement action by
the President under clause (ii), (iii), or (iv) of subparagraph
(B), the President shall submit to Congress a report describing the basis for the enforcement action, including
specific references to the facts demonstrating that enforcement action is permitted under subparagraph (B).
(2) SAVINGS PROVISION.—
(A) COSTS INCURRED PRIOR TO LIMITATIONS.—Nothing
in paragraph (1) precludes the President from seeking to
recover costs incurred prior to the date of the enactment
of this section or during a period in which the limitations
of paragraph (1)(A) were not applicable.
(B) EFFECT ON AGREEMENTS BETWEEN STATES AND
EPA.—Nothing in paragraph (1)—
(i) modifies or otherwise affects a memorandum of
agreement, memorandum of understanding, or any
similar agreement relating to this Act between a State
agency or an Indian tribe and the Administrator that
is in effect on or before the date of the enactment of
this section (which agreement shall remain in effect,
subject to the terms of the agreement); or
(ii) limits the discretionary authority of the President to enter into or modify an agreement with a
State, an Indian tribe, or any other person relating to
the implementation by the President of statutory authorities.
(3) EFFECTIVE DATE.—This subsection applies only to response actions conducted after February 15, 2001.
(c) EFFECT ON FEDERAL LAWS.—Nothing in this section affects
any liability or response authority under any Federal law,
including—
(1) this Act, except as provided in subsection (b);
(2) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);
(3) the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.);
(4) the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.); and
(5) the Safe Drinking Water Act (42 U.S.C. 300f et seq.).
[42 U.S.C. 9628]
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
629

SUPERFUND

Sec. 301

TITLE II—HAZARDOUS SUBSTANCE
RESPONSE REVENUE ACT OF 1980
SEC. 201. SHORT TITLE; AMENDMENT OF 1954 CODE.
(a) SHORT TITLE.—This title may be cited as

the ‘‘Hazardous
Substance Response Revenue Act of 1980’’.
(b) AMENDMENT OF 1954 CODE.—Except as otherwise expressly
provided, whenever in this title an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or
other provision, the reference shall be considered to be made to a
section or other provision of the Internal Revenue Code of 1954.

Subtitle A—Imposition of Taxes on
Petroleum and Certain Chemicals 1
*

*

*

*

*

*

*

Subtitle B—Establishment of Hazardous
Substance Response Trust Fund
øRepealed by section 517(c)(1) of SARA of 1986 (P.L. 99–499)¿

Subtitle C—Post-Closure Tax and Trust Fund
øSection 231 provided a new subchapter C of chapter 38 of the
Internal Revenue Code of 1954.¿
øSection 232 repealed by section 514(b) of SARA of 1986 (P.L.
99–499)¿
TITLE III—MISCELLANEOUS PROVISIONS
REPORTS AND STUDIES

SEC. 301. (a)(1) The President shall submit to the Congress,
within four years after enactment of this Act, a comprehensive report on experience with the implementation of this Act, including,
but not limited to—
(A) the extent to which the Act and Fund are effective in
enabling Government to respond to and mitigate the effects of
releases of hazardous substances;
(B) a summary of past receipts and disbursements from
the Fund;
(C) a projection of any future funding needs remaining
after the expiration of authority to collect taxes, and of the
threat to public health, welfare, and the environment posed by
the projected releases which create any such needs;
1 Subtitle A inserted a new chapter 38 (relating to environmental taxes) in the Internal Revenue Code, consisting of a subchapter A (tax on petroleum) and subchapter B (tax on certain
chemicals). However, since the enactment of CERLCA, chapter 38 has been amended extensively, most notably by title V of the Superfund Amendments and Reauthorization Act of 1986
(P.L. 99–499) and by section 8032 of the Omnibus Budget Reconciliation Act of 1986 (P.L. 99–
509). See the Internal Revenue Code of 1986 for the current text of chapter 38.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 301

SUPERFUND

630

(D) the record and experience of the Fund in recovering
Fund disbursements from liable parties;
(E) the record of State participation in the system of response, liability, and compensation established by this Act;
(F) the impact of the taxes imposed by title II of this Act
on the Nation’s balance of trade with other countries;
(G) an assessment of the feasibility and desirability of a
schedule of taxes which would take into account one or more
of the following: the likelihood of a release of a hazardous substance, the degree of hazard and risk of harm to public health,
welfare, and the environment resulting from any such release,
incentives to proper handling, recycling, incineration, and neutralization of hazardous wastes, and disincentives to improper
or illegal handling or disposal of hazardous materials, administrative and reporting burdens on Government and industry,
and the extent to which the tax burden falls on the substances
and parties which create the problems addressed by this Act.
In preparing the report, the President shall consult with appropriate Federal, State, and local agencies, affected industries
and claimants, and such other interested parties as he may
find useful. Based upon the analyses and consultation required
by this subsection, the President shall also include in the report any recommendations for legislative changes he may deem
necessary for the better effectuation of the purposes of this Act,
including but not limited to recommendations concerning authorization levels, taxes, State participation, liability and liability limits, and financial responsibility provisions for the Response Trust Fund and the Post-closure Liability Trust Fund;
(H) an exemption from or an increase in the substances or
the amount of taxes imposed by section 4661 of the Internal
Revenue Code of 1954 for copper, lead, and zinc oxide, and for
feedstocks when used in the manufacture and production of
fertilizers, based upon the expenditure experience of the Response Trust Fund; 1
(I) the economic impact of taxing coal-derived substances
and recycled metals.
(2) The Administrator of the Environmental Protection Agency
(in consultation with the Secretary of the Treasury) shall submit
to the Congress (i) within four years after enactment of this Act,
a report identifying additional wastes designated by rule as hazardous after the effective date of this Act and pursuant to section
3001 of the Solid Waste Disposal Act and recommendations on appropriate tax rates for such wastes for the Post-closure Liability
Trust Fund. The report shall, in addition, recommend a tax rate,
considering the quantity and potential danger to human health and
the environment posed by the disposal of any wastes which the Administrator, pursuant to subsection 3001(b)(2)(B) and subsection
3001(b)(3)(A) of the Solid Waste Disposal Act of 1980, has determined should be subject to regulation under subtitle C of such Act,
(ii) within three years after enactment of this Act, a report on the
necessity for and the adequacy of the revenue raised, in relation to
1 So

December 31, 2002

in law. Should probably have the word ‘‘and’’ after the semicolon.

Q:\COMP\ENVIR2\CERCLA
631

SUPERFUND

Sec. 301

estimated future requirements, of the Post-closure Liability Trust
Fund.
(b) The President shall conduct a study to determine (1) whether adequate private insurance protection is available on reasonable
terms and conditions to the owners and operators of vessels and facilities subject to liability under section 107 of this Act, and (2)
whether the market for such insurance is sufficiently competitive
to assure purchasers of features such as a reasonable range of
deductibles, coinsurance provisions, and exclusions. The President
shall submit the results of his study, together with his recommendations, within two years of the date of enactment of this
Act, and shall submit an interim report on his study within one
year of the date of enactment of this Act.
(c)(1) The President, acting through Federal officials designated by the National Contingency Plan published under section
105 of this Act, shall study and, not later than two years after the
enactment of this Act, shall promulgate regulations for the assessment of damages for injury to, destruction of, or loss of natural resources resulting from a release of oil or a hazardous substance for
the purposes of this Act and section 311(f) (4) and (5) of the Federal
Water Pollution Control Act. Notwithstanding the failure of the
President to promulgate the regulations required under this subsection on the required date, the President shall promulgate such
regulations not later than 6 months after the enactment of the
Superfund Amendments and Reauthorization Act of 1986.
(2) Such regulations shall specify (A) standard procedures for
simplified assessments requiring minimal field observation, including establishing measures of damages based on units of discharge
or release or units of affected area, and (B) alternative protocols for
conducting assessments in individual cases to determine the type
and extent of short- and long-term injury, destruction, or loss. Such
regulations shall identify the best available procedures to determine such damages, including both direct and indirect injury, destruction, or loss and shall take into consideration factors including, but not limited to, replacement value, use value, and ability
of the ecosystem or resource to recover.
(3) Such regulations shall be reviewed and revised as appropriate every two years.
(d) The Administrator of the Environmental Protection Agency
shall, in consultation with other Federal agencies and appropriate
representatives of State and local governments and nongovernmental agencies, conduct a study and report to the Congress within
two years of the date of enactment of this Act on the issues, alternatives, and policy considerations involved in the selection of locations for hazardous waste treatment, storage, and disposal facilities. This study shall include—
(A) an assessment of current and projected treatment, storage, and disposal capacity needs and shortfalls for hazardous
waste by management category on a State-by-State basis;
(B) an evaluation of the appropriateness of a regional approach to siting and designing hazardous waste management
facilities and the identification of hazardous waste management regions, interstate or intrastate, or both, with similar
hazardous waste management needs;
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 301

SUPERFUND

632

(C) solicitation and analysis of proposals for the construction and operation of hazardous waste management facilities
by nongovernmental entities, except that no proposal solicited
under terms of this subsection shall be analyzed if it involves
cost to the United States Government or fails to comply with
the requirements of subtitle C of the Solid Waste Disposal Act
and other applicable provisions of law;
(D) recommendations on the appropriate balance between
public and private sector involvement in the siting, design, and
operation of new hazardous waste management facilities;
(E) documentation of the major reasons for public opposition to new hazardous waste management facilities; and
(F) an evaluation of the various options for overcoming obstacles to siting new facilities, including needed legislation for
implementing the most suitable option or options.
(e)(1) In order to determine the adequacy of existing common
law and statutory remedies in providing legal redress for harm to
man and the environment caused by the release of hazardous substances into the environment, there shall be submitted to the Congress a study within twelve months of enactment of this Act.
(2) This study shall be conducted with the assistance of the
American Bar Association, the American Law Institute, the Association of American Trial Lawyers, and the National Association of
State Attorneys General with the President of each entity selecting
three members from each organization to conduct the study. The
study chairman and one reporter shall be elected from among the
twelve members of the study group.
(3) As part of their review of the adequacy of existing common
law and statutory remedies, the study group shall evaluate the following:
(A) the nature, adequacy, and availability of existing remedies under present law in compensating for harm to man from
the release of hazardous substances;
(B) the nature of barriers to recovery (particularly with respect to burdens of going forward and of proof and relevancy)
and the role such barriers play in the legal system;
(C) the scope of the evidentiary burdens placed on the
plaintiff in proving harm from the release of hazardous substances, particularly in light of the scientific uncertainty over
causation with respect to—
(i) carcinogens, mutagens, and teratogens, and
(ii) the human health effects of exposure to low doses
of hazardous substances over long periods of time;
(D) the nature and adequacy of existing remedies under
present law in providing compensation for damages to natural
resources from the release of hazardous substances;
(E) the scope of liability under existing law and the consequences, particularly with respect to obtaining insurance, of
any changes in such liability;
(F) barriers to recovery posed by existing statutes of limitations.
(4) The report shall be submitted to the Congress with appropriate recommendations. Such recommendations shall explicitly
address—
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
633

SUPERFUND

Sec. 301

(A) the need for revisions in existing statutory or common
law, and
(B) whether such revisions should take the form of Federal
statutes or the development of a model code which is recommended for adoption by the States.
(5) The Fund shall pay administrative expenses incurred for
the study. No expenses shall be available to pay compensation, except expenses on a per diem basis for the one reporter, but in no
case shall the total expenses of the study exceed $300,000.
(f) The President, acting through the Administrator of the Environmental Protection Agency, the Secretary of Transportation,
the Administrator of the Occupational Safety and Health Administration, and the Director of the National Institute for Occupational
Safety and Health shall study and, not later than two years after
the enactment of this Act, shall modify the national contingency
plan to provide for the protection of the health and safety of employees involved in response actions.
(g) INSURABILITY STUDY.—
(1) STUDY BY COMPTROLLER GENERAL.—The Comptroller
General of the United States, in consultation with the persons
described in paragraph (2), shall undertake a study to determine the insurability, and effects on the standard of care, of
the liability of each of the following:
(A) Persons who generate hazardous substances: liability for costs and damages under this Act.
(B) Persons who own or operate facilities: liability for
costs and damages under this Act.
(C) Persons liable for injury to persons or property
caused by the release of hazardous substances into the environment.
(2) CONSULTATION.—In conducting the study under this
subsection, the Comptroller General shall consult with the following:
(A) Representatives of the Administrator.
(B) Representatives of persons described in subparagraphs (A) through (C) of the preceding paragraph.
(C) Representatives (i) of groups or organizations comprised generally of persons adversely affected by releases
or threatened releases of hazardous substances and (ii) of
groups organized for protecting the interests of consumers.
(D) Representatives of property and casualty insurers.
(E) Representatives of reinsurers.
(F) Persons responsible for the regulation of insurance
at the State level.
(3) ITEMS EVALUATED.—The study under this section shall
include, among other matters, an evaluation of the following:
(A) Current economic conditions in, and the future
outlook for, the commercial market for insurance and reinsurance.
(B) Current trends in statutory and common law remedies.
(C) The impact of possible changes in traditional
standards of liability, proof, evidence, and damages on existing statutory and common law remedies.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 301

SUPERFUND

634

(D) The effect of the standard of liability and extent of
the persons upon whom it is imposed under this Act on the
protection of human health and the environment and on
the availability, underwriting, and pricing of insurance
coverage.
(E) Current trends, if any, in the judicial interpretation and construction of applicable insurance contracts, together with the degree to which amendments in the language of such contracts and the description of the risks assumed, could affect such trends.
(F) The frequency and severity of a representative
sample of claims closed during the calendar year immediately preceding the enactment of this subsection.
(G) Impediments to the acquisition of insurance or
other means of obtaining liability coverage other than
those referred to in the preceding subparagraphs.
(H) The effects of the standards of liability and financial responsibility requirements imposed pursuant to this
Act on the cost of, and incentives for, developing and demonstrating alternative and innovative treatment technologies, as well as waste generation minimization.
(4) SUBMISSION.—The Comptroller General shall submit a
report on the results of the study to Congress with appropriate
recommendations within 12 months after the enactment of this
subsection.
(h) REPORT AND OVERSIGHT REQUIREMENTS.—
(1) ANNUAL REPORT BY EPA.—On January 1 of each year
the Administrator of the Environmental Protection Agency
shall submit an annual report to Congress of such Agency on
the progress achieved in implementing this Act during the preceding fiscal year. In addition such report shall specifically include each of the following:
(A) A detailed description of each feasibility study carried out at a facility under title I of this Act.
(B) The status and estimated date of completion of
each such study.
(C) Notice of each such study which will not meet a
previously published schedule for completion and the new
estimated date for completion.
(D) An evaluation of newly developed feasible and
achievable permanent treatment technologies.
(E) Progress made in reducing the number of facilities
subject to review under section 121(c).
(F) A report on the status of all remedial and enforcement actions undertaken during the prior fiscal year, including a comparison to remedial and enforcement actions
undertaken in prior fiscal years.
(G) An estimate of the amount of resources, including
the number of work years or personnel, which would be
necessary for each department, agency, or instrumentality
which is carrying out any activities of this Act to complete
the implementation of all duties vested in the department,
agency, or instrumentality under this Act.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
635

SUPERFUND

Sec. 303

(2) REVIEW BY INSPECTOR GENERAL.—Consistent with the
authorities of the Inspector General Act of 1978 the Inspector
General of the Environmental Protection Agency shall review
any report submitted under paragraph (1) related to EPA’s activities for reasonableness and accuracy and submit to Congress, as a part of such report a report on the results of such
review.
(3) CONGRESSIONAL OVERSIGHT.—After receiving the reports under paragraphs (1) and (2) of this subsection in any
calendar year, the appropriate authorizing committees of Congress shall conduct oversight hearings to ensure that this Act
is being implemented according to the purposes of this Act and
congressional intent in enacting this Act.
[42 U.S.C. 9651]
EFFECTIVE DATES, SAVINGS PROVISION

SEC. 302. (a) Unless otherwise provided, all provisions of this
Act shall be effective on the date of enactment of this Act.
(b) Any regulation issued pursuant to any provisions of section
311 of the Clean Water Act 1 which is repealed or superseded by
this Act and which is in effect on the date immediately preceding
the effective date of this Act shall be deemed to be a regulation
issued pursuant to the authority of this Act and shall remain in
full force and effect unless or until superseded by new regulations
issued thereunder.
(c) Any regulation—
(1) respecting financial responsibility,
(2) issued pursuant to any provision of law repealed or superseded by this Act, and
(3) in effect on the date immediately preceding the effective date of this Act shall be deemed to be a regulation issued
pursuant to the authority of this Act and shall remain in full
force and effect unless or until superseded by new regulations
issued thereunder.
(d) Nothing in this Act shall affect or modify in any way the
obligations or liabilities of any person under other Federal or State
law, including common law, with respect to releases of hazardous
substances or other pollutants or contaminants. The provisions of
this Act shall not be considered, interpreted, or construed in any
way as reflecting a determination, in part or whole, of policy regarding the inapplicability of strict liability, or strict liability doctrines, to activities relating to hazardous substances, pollutants, or
contaminants or other such activities.
[42 U.S.C. 9652]
EXPIRATION, SUNSET PROVISION

SEC. 303. [Repealed by P.L. 99–499.]
[42 U.S.C. 9653]

1 So

December 31, 2002

in law. Probably should refer to the Federal Water Pollution Control Act.

Q:\COMP\ENVIR2\CERCLA
Sec. 304

SUPERFUND

636

CONFORMING AMENDMENTS

SEC. 304. (a) [Repealed subsection (b) of section 504 of the Federal Water Pollution Control Act].
(b) One-half of the unobligated balance remaining before the
date of the enactment of this Act under subsection (k) 1 of section
311 of the Federal Water Pollution Control Act and all sums appropriated under section 504(b) 2 of the Federal Water Pollution Control Act shall be transferred to the Fund established under title II
of this Act.
(c) In any case in which any provision of section 311 of the
Federal Water Pollution Control Act is determined to be in conflict
with any provisions of this Act, the provisions of this Act shall
apply.
[42 U.S.C. 9654]
LEGISLATIVE VETO

SEC. 305. (a) Notwithstanding any other provision of law, simultaneously with promulgation or repromulgation of any rule or
regulation under authority of title I of this Act, the head of the department, agency, or instrumentality promulgating such rule or
regulation shall transmit a copy thereof to the Secretary of the
Senate and the Clerk of the House of Representatives. Except as
provided in subsection (b) of this section, the rule or regulation
shall not become effective, if—
(1) within ninety calendar days of continuous session of
Congress after the date of promulgation, both Houses of Congress adopt a concurrent resolution, the matter after the resolving clause of which is as follows: ‘‘That Congress disapproves the rule or regulation promulgated by the
dealing with the matter of
, which rule or regulation was transmitted to Congress on
.’’, the blank
spaces therein being appropriately filled; or
(2) within sixty calendar days of continuous session of Congress after the date of promulgation, one House of Congress
adopts such a concurrent resolution and transmits such resolution to the other House, and such resolution is not disapproved
by such other House within thirty calendar days of continuous
session of Congress after such transmittal.
(b) If, at the end of sixty calendar days of continuous session
of Congress after the date of promulgation of a rule or regulation,
no committee of either House of Congress has reported or been discharged from further consideration of a concurrent resolution disapproving the rule or regulation and neither House has adopted
such a resolution, the rule or regulation may go into effect immediately. If, within such sixty calendar days, such a committee has
reported or been discharged from further consideration of such a
resolution, or either House has adopted such a resolution, the rule
or regulation may go into effect not sooner than ninety calendar
days of continuous session of Congress after such rule is prescribed
unless disapproved as provided in subsection (a) of this section.
1 Subsection
2 Section

December 31, 2002

(k) was repealed by section 2002(b)(2) of Public Law 101–380.
504(b) was repealed by section 304(a) of Public Law 96–510.

Q:\COMP\ENVIR2\CERCLA
637

SUPERFUND

Sec. 307

(c) For purposes of subsections (a) and (b) of this section—
(1) continuity of session is broken only by an adjournment
of Congress sine die; and
(2) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of thirty, sixty, and ninety calendar days of continuous session of Congress.
(d) Congressional inaction on, or rejection of, a resolution of
disapproval shall not be deemed an expression of approval of such
rule or regulation.
[42 U.S.C. 9655]
TRANSPORTATION

SEC. 306. (a) Each hazardous substance which is listed or designated as provided in section 101(14) of this Act shall, within 30
days after the enactment of the Superfund Amendments and Reauthorization Act of 1986 or at the time of such listing or designation,
whichever is later, be listed and regulated as a hazardous material
under the Hazardous Materials Transportation Act. 1
(b) A common or contract carrier shall be liable under other
law in lieu of section 107 of this Act for damages or remedial action
resulting from the release of a hazardous substance during the
course of transportation which commenced prior to the effective
date of the listing and regulation of such substance as a hazardous
material under the Hazardous Materials Transportation Act, 1 or
for substances listed pursuant to subsection (a) of this section, prior
to the effective date of such listing: Provided, however, That this
subsection shall not apply where such a carrier can demonstrate
that he did not have actual knowledge of the identity or nature of
the substance released.
(c) [Amended section 11901 of title 49, United States Code.]
[42 U.S.C. 9656]
ASSISTANT ADMINISTRATOR FOR SOLID WASTE

SEC. 307. (a) [Amended section 2001 of the Solid Waste Disposal Act by striking out ‘‘a Deputy Assistant’’ and inserting in lieu
thereof ‘‘an Assistant’’.]
(b) The Assistant Administrator of the Environmental Protection Agency appointed to head the Office of Solid Waste shall be
in addition to the five Assistant Administrators of the Environmental Protection Agency provided for in section 1(d) of Reorganization Plan Numbered 3 of 1970 and the additional Assistant Administrator provided by the Toxic Substances Control Act, shall be
appointed by the President by and with the advice and consent of
the Senate, and shall be compensated at the rate provided for Level
IV of the Executive Schedule pay rates under section 5315 of title
5, United States Code.
(c) The amendment made by subsection (a) shall become effective ninety days after the date of the enactment of this Act.
[42 U.S.C. 6911a]
1 Should refer to chapter 51 of title 49, United States Code, pursuant to section 6(b) of Public
Law 103–272 (which codified certain transportation laws into title 49, U.S.C.).

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 308

SUPERFUND

638

SEPARABILITY

SEC. 308. If any provision of this Act, or the application of any
provision of this Act to any person or circumstance, is held invalid,
the application of such provision to other persons or circumstances
and the remainder of this Act shall not be affected thereby. If an
administrative settlement under section 122 has the effect of limiting any person’s right to obtain contribution from any party to
such settlement, and if the effect of such limitation would constitute a taking without just compensation in violation of the fifth
amendment of the Constitution of the United States, such person
shall not be entitled, under other laws of the United States, to recover compensation from the United States for such taking, but in
any such case, such limitation on the right to obtain contribution
shall be treated as having no force and effect.
[42 U.S.C. 9657]
SEC. 309. ACTIONS UNDER STATE LAW FOR DAMAGES FROM EXPOSURE TO HAZARDOUS SUBSTANCES.
(a) STATE STATUTES OF LIMITATIONS FOR HAZARDOUS SUBSTANCE CASES.—
(1) EXCEPTION TO STATE STATUTES.—In the case of any ac-

tion brought under State law for personal injury, or property
damages, which are caused or contributed to by exposure to
any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable
limitations period for such action (as specified in the State
statute of limitations or under common law) provides a commencement date which is earlier than the federally required
commencement date, such period shall commence at the federally required commencement date in lieu of the date specified
in such State statute.
(2) STATE LAW GENERALLY APPLICABLE.—Except as provided in paragraph (1), the statute of limitations established
under State law shall apply in all actions brought under State
law for personal injury, or property damages, which are caused
or contributed to by exposure to any hazardous substance, or
pollutant or contaminant, released into the environment from
a facility.
(3) ACTIONS UNDER SECTION 107.—Nothing in this section
shall apply with respect to any cause of action brought under
section 107 of this Act.
(b) DEFINITIONS.—As used in this section—
(1) TITLE I TERMS.—The terms used in this section shall
have the same meaning as when used in title I of this Act.
(2) APPLICABLE LIMITATIONS PERIOD.—The term ‘‘applicable
limitations period’’ means the period specified in a statute of
limitations during which a civil action referred to in subsection
(a)(1) may be brought.
(3) COMMENCEMENT DATE.—The term ‘‘commencement
date’’ means the date specified in a statute of limitations as the
beginning of the applicable limitations period.
(4) FEDERALLY REQUIRED COMMENCEMENT DATE.—
(A) IN GENERAL.—Except as provided in subparagraph
(B), the term ‘‘federally required commencement date’’
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
639

SUPERFUND

Sec. 310

means the date the plaintiff knew (or reasonably should
have known) that the personal injury or property damages
referred to in subsection (a)(1) were caused or contributed
to by the hazardous substance or pollutant or contaminant
concerned.
(B) SPECIAL RULES.—In the case of a minor or incompetent plaintiff, the term ‘‘federally required commencement date’’ means the later of the date referred to in subparagraph (A) or the following:
(i) In the case of a minor, the date on which the
minor reaches the age of majority, as determined by
State law, or has a legal representative appointed.
(ii) In the case of an incompetent individual, the
date on which such individual becomes competent or
has had a legal representative appointed.
[42 U.S.C. 9658]
SEC. 310. CITIZENS SUITS.
(a) AUTHORITY TO BRING

CIVIL ACTIONS.—Except as provided
in subsections (d) and (e) of this section and in section 113(h) (relating to timing of judicial review), any person may commence a
civil action on his own behalf—
(1) against any person (including the United States and
any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution)
who is alleged to be in violation of any standard, regulation,
condition, requirement, or order which has become effective
pursuant to this Act (including any provision of an agreement
under section 120, relating to Federal facilities); or
(2) against the President or any other officer of the United
States (including the Administrator of the Environmental Protection Agency and the Administrator of the ATSDR) where
there is alleged a failure of the President or of such other officer to perform any act or duty under this Act, including an act
or duty under section 120 (relating to Federal facilities), which
is not discretionary with the President or such other officer.
Paragraph (2) shall not apply to any act or duty under the provisions of section 311 (relating to research, development, and demonstration).
(b) VENUE.—
(1) ACTIONS UNDER SUBSECTION (A)(1).—Any action under
subsection (a)(1) shall be brought in the district court for the
district in which the alleged violation occurred.
(2) ACTIONS UNDER SUBSECTION (A)(2).—Any action brought
under subsection (a)(2) may be brought in the United States
District Court for the District of Columbia.
(c) RELIEF.—The district court shall have jurisdiction in actions
brought under subsection (a)(1) to enforce the standard, regulation,
condition, requirement, or order concerned (including any provision
of an agreement under section 120), to order such action as may
be necessary to correct the violation, and to impose any civil penalty provided for the violation. The district court shall have jurisdiction in actions brought under subsection (a)(2) to order the
President or other officer to perform the act or duty concerned.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 311

SUPERFUND

640

(d) RULES APPLICABLE TO SUBSECTION (a)(1) ACTIONS.—
(1) NOTICE.—No action may be commenced under subsection (a)(1) of this section before 60 days after the plaintiff
has given notice of the violation to each of the following:
(A) The President.
(B) The State in which the alleged violation occurs.
(C) Any alleged violator of the standard, regulation,
condition, requirement, or order concerned (including any
provision of an agreement under section 120).
Notice under this paragraph shall be given in such manner as
the President shall prescribe by regulation.
(2) DILIGENT PROSECUTION.—No action may be commenced
under paragraph (1) of subsection (a) if the President has commenced and is diligently prosecuting an action under this Act,
or under the Solid Waste Disposal Act to require compliance
with the standard, regulation, condition, requirement, or order
concerned (including any provision of an agreement under section 120).
(e) RULES APPLICABLE TO SUBSECTION (a)(2) ACTIONS.—No action may be commenced under paragraph (2) of subsection (a) before the 60th day following the date on which the plaintiff gives notice to the Administrator or other department, agency, or instrumentality that the plaintiff will commence such action. Notice
under this subsection shall be given in such manner as the President shall prescribe by regulation.
(f) COSTS.—The court, in issuing any final order in any action
brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or the substantially prevailing party whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with
the Federal Rules of Civil Procedure.
(g) INTERVENTION.—In any action under this section, the
United States or the State, or both, if not a party may intervene
as a matter of right. For other provisions regarding intervention,
see section 113.
(h) OTHER RIGHTS.—This Act does not affect or otherwise impair the rights of any person under Federal, State, or common law,
except with respect to the timing of review as provided in section
113(h) or as otherwise provided in section 309 (relating to actions
under State law).
(i) DEFINITIONS.—The terms used in this section shall have the
same meanings as when used in title I.
[42 U.S.C. 9659]
SEC. 311. RESEARCH, DEVELOPMENT, AND DEMONSTRATION.
(a) HAZARDOUS SUBSTANCE RESEARCH AND TRAINING.—
(1) AUTHORITIES OF SECRETARY.—The Secretary of

Health
and Human Services (hereinafter in this subsection referred to
as the Secretary), in consultation with the Administrator, shall
establish and support a basic research and training program
(through grants, cooperative agreements, and contracts) consisting of the following:

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
641

SUPERFUND

Sec. 311

(A) Basic research (including epidemiologic and
ecologic studies) which may include each of the following:
(i) Advanced techniques for the detection, assessment, and evaluation of the effects on human health
of hazardous substances.
(ii) Methods to assess the risks to human health
presented by hazardous substances.
(iii) Methods and technologies to detect hazardous
substances in the environment and basic biological,
chemical, and physical methods to reduce the amount
and toxicity of hazardous substances.
(B) Training, which may include each of the following:
(i) Short courses and continuing education for
State and local health and environment agency personnel and other personnel engaged in the handling of
hazardous substances, in the management of facilities
at which hazardous substances are located, and in the
evaluation of the hazards to human health presented
by such facilities.
(ii) Graduate or advanced training in environmental and occupational health and safety and in the
public health and engineering aspects of hazardous
waste control.
(iii) Graduate training in the geosciences, including hydrogeology, geological engineering, geophysics,
geochemistry, and related fields necessary to meet professional personnel needs in the public and private
sectors and to effectuate the purposes of this Act.
(2) DIRECTOR OF NIEHS.—The Director of the National Institute for Environmental Health Sciences shall cooperate fully
with the relevant Federal agencies referred to in subparagraph
(A) of paragraph (5) in carrying out the purposes of this section.
(3) RECIPIENTS OF GRANTS, ETC.—A grant, cooperative
agreement, or contract may be made or entered into under
paragraph (1) with an accredited institution of higher education. The institution may carry out the research or training
under the grant, cooperative agreement, or contract through
contracts, including contracts with any of the following:
(A) Generators of hazardous wastes.
(B) Persons involved in the detection, assessment,
evaluation, and treatment of hazardous substances.
(C) Owners and operators of facilities at which hazardous substances are located.
(D) State and local governments.
(4) PROCEDURES.—In making grants and entering into cooperative agreements and contracts under this subsection, the
Secretary shall act through the Director of the National Institute for Environmental Health Sciences. In considering the allocation of funds for training purposes, the Director shall ensure that at least one grant, cooperative agreement, or contract
shall be awarded for training described in each of clauses (i),
(ii), and (iii) of paragraph (1)(B). Where applicable, the Director
may choose to operate training activities in cooperation with
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 311

SUPERFUND

642

the Director of the National Institute for Occupational Safety
and Health. The procedures applicable to grants and contracts
under title IV of the Public Health Service Act shall be followed under this subsection.
(5) ADVISORY COUNCIL.—To assist in the implementation of
this subsection and to aid in the coordination of research and
demonstration and training activities funded from the Fund
under this section, the Secretary shall appoint an advisory
council (hereinafter in this subsection referred to as the ‘‘Advisory Council’’) which shall consist of representatives of the following:
(A) The relevant Federal agencies.
(B) The chemical industry.
(C) The toxic waste management industry.
(D) Institutions of higher education.
(E) State and local health and environmental agencies.
(F) The general public.
(6) PLANNING.—Within nine months after the date of the
enactment of this subsection, the Secretary, acting through the
Director of the National Institute for Environmental Health
Sciences, shall issue a plan for the implementation of paragraph (1). The plan shall include priorities for actions under
paragraph (1) and include research and training relevant to
scientific and technological issues resulting from site specific
hazardous substance response experience. The Secretary shall,
to the maximum extent practicable, take appropriate steps to
coordinate program activities under this plan with the activities of other Federal agencies in order to avoid duplication of
effort. The plan shall be consistent with the need for the development of new technologies for meeting the goals of response
actions in accordance with the provisions of this Act. The Advisory Council shall be provided an opportunity to review and
comment on the plan and priorities and assist appropriate coordination among the relevant Federal agencies referred to in
subparagraph (A) of paragraph (5).
(b) ALTERNATIVE OR INNOVATIVE TREATMENT TECHNOLOGY RESEARCH AND DEMONSTRATION PROGRAM.—
(1) ESTABLISHMENT.—The Administrator is authorized and
directed to carry out a program of research, evaluation, testing,
development, and demonstration of alternative or innovative
treatment technologies (hereinafter in this subsection referred
to as the ‘‘program’’) which may be utilized in response actions
to achieve more permanent protection of human health and
welfare and the environment.
(2) ADMINISTRATION.—The program shall be administered
by the Administrator, acting through an office of technology
demonstration and shall be coordinated with programs carried
out by the Office of Solid Waste and Emergency Response and
the Office of Research and Development.
(3) CONTRACTS AND GRANTS.—In carrying out the program,
the Administrator is authorized to enter into contracts and cooperative agreements with, and make grants to, persons, public entities, and nonprofit private entities which are exempt
from tax under section 501(c)(3) of the Internal Revenue Code
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
643

SUPERFUND

Sec. 311

of 1954. The Administrator shall, to the maximum extent possible, enter into appropriate cost sharing arrangements under
this subsection.
(4) USE OF SITES.—In carrying out the program, the Administrator may arrange for the use of sites at which a response may be undertaken under section 104 for the purposes
of carrying out research, testing, evaluation, development, and
demonstration projects. Each such project shall be carried out
under such terms and conditions as the Administrator shall require to assure the protection of human health and the environment and to assure adequate control by the Administrator
of the research, testing, evaluation, development, and demonstration activities at the site.
(5) DEMONSTRATION ASSISTANCE.—
(A) PROGRAM COMPONENTS.—The demonstration assistance program shall include the following:
(i) The publication of a solicitation and the evaluation of applications for demonstration projects utilizing
alternative or innovative technologies.
(ii) The selection of sites which are suitable for the
testing and evaluation of innovative technologies.
(iii) The development of detailed plans for innovative technology demonstration projects.
(iv) The supervision of such demonstration
projects and the providing of quality assurance for
data obtained.
(v) The evaluation of the results of alternative innovative technology demonstration projects and the
determination of whether or not the technologies used
are effective and feasible.
(B) SOLICITATION.—Within 90 days after the date of
the enactment of this section, and no less often than once
every 12 months thereafter, the Administrator shall publish a solicitation for innovative or alternative technologies
at a stage of development suitable for full-scale demonstrations at sites at which a response action may be undertaken under section 104. The purpose of any such project
shall be to demonstrate the use of an alternative or innovative treatment technology with respect to hazardous
substances or pollutants or contaminants which are located at the site or which are to be removed from the site.
The solicitation notice shall prescribe information to be included in the application, including technical and economic
data derived from the applicant’s own research and development efforts, and other information sufficient to permit
the Administrator to assess the technology’s potential and
the types of remedial action to which it may be applicable.
(C) APPLICATIONS.—Any person and any public or private nonprofit entity may submit an application to the Administrator in response to the solicitation. The application
shall contain a proposed demonstration plan setting forth
how and when the project is to be carried out and such
other information as the Administrator may require.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 311

SUPERFUND

644

(D) PROJECT SELECTION.—In selecting technologies to
be demonstrated, the Administrator shall fully review the
applications submitted and shall consider at least the criteria specified in paragraph (7). The Administrator shall
select or refuse to select a project for demonstration under
this subsection within 90 days of receiving the completed
application for such project. In the case of a refusal to select the project, the Administrator shall notify the applicant within such 90-day period of the reasons for his refusal.
(E) SITE SELECTION.—The Administrator shall propose
10 sites at which a response may be undertaken under section 104 to be the location of any demonstration project
under this subsection within 60 days after the close of the
public comment period. After an opportunity for notice and
public comment, the Administrator shall select such sites
and projects. In selecting any such site, the Administrator
shall take into account the applicant’s technical data and
preferences either for onsite operation or for utilizing the
site as a source of hazardous substances or pollutants or
contaminants to be treated offsite.
(F) DEMONSTRATION PLAN.—Within 60 days after the
selection of the site under this paragraph to be the location
of a demonstration project, the Administrator shall establish a final demonstration plan for the project, based upon
the demonstration plan contained in the application for the
project. Such plan shall clearly set forth how and when the
demonstration project will be carried out.
(G) SUPERVISION AND TESTING.—Each demonstration
project under this subsection shall be performed by the applicant, or by a person satisfactory to the applicant, under
the supervision of the Administrator. The Administrator
shall enter into a written agreement with each applicant
granting the Administrator the responsibility and authority for testing procedures, quality control, monitoring, and
other measurements necessary to determine and evaluate
the results of the demonstration project. The Administrator may pay the costs of testing, monitoring, quality
control, and other measurements required by the Administrator to determine and evaluate the results of the demonstration project, and the limitations established by subparagraph (J) shall not apply to such costs.
(H) PROJECT COMPLETION.—Each demonstration
project under this subsection shall be completed within
such time as is established in the demonstration plan.
(I) EXTENSIONS.—The Administrator may extend any
deadline established under this paragraph by mutual
agreement with the applicant concerned.
(J) FUNDING RESTRICTIONS.—The Administrator shall
not provide any Federal assistance for any part of a fullscale field demonstration project under this subsection to
any applicant unless such applicant can demonstrate that
it cannot obtain appropriate private financing on reasonable terms and conditions sufficient to carry out such demDecember 31, 2002

Q:\COMP\ENVIR2\CERCLA
645

SUPERFUND

Sec. 311

onstration project without such Federal assistance. The
total Federal funds for any full-scale field demonstration
project under this subsection shall not exceed 50 percent
of the total cost of such project estimated at the time of the
award of such assistance. The Administrator shall not expend more than $10,000,000 for assistance under the program in any fiscal year and shall not expend more than
$3,000,000 for any single project.
(6) FIELD DEMONSTRATIONS.—In carrying out the program,
the Administrator shall initiate or cause to be initiated at least
10 field demonstration projects of alternative or innovative
treatment technologies at sites at which a response may be undertaken under section 104, in fiscal year 1987 and each of the
succeeding three fiscal years. If the Administrator determines
that 10 field demonstration projects under this subsection cannot be initiated consistent with the criteria set forth in paragraph (7) in any of such fiscal years, the Administrator shall
transmit to the appropriate committees of Congress a report
explaining the reasons for his inability to conduct such demonstration projects.
(7) CRITERIA.—In selecting technologies to be demonstrated under this subsection, the Administrator shall, consistent with the protection of human health and the environment, consider each of the following criteria:
(A) The potential for contributing to solutions to those
waste problems which pose the greatest threat to human
health, which cannot be adequately controlled under
present technologies, or which otherwise pose significant
management difficulties.
(B) The availability of technologies which have been
sufficiently developed for field demonstration and which
are likely to be cost effective and reliable.
(C) The availability and suitability of sites for demonstrating such technologies, taking into account the physical, biological, chemical, and geological characteristics of
the sites, the extent and type of contamination found at
the site, and the capability to conduct demonstration
projects in such a manner as to assure the protection of
human health and the environment.
(D) The likelihood that the data to be generated from
the demonstration project at the site will be applicable to
other sites.
(8) TECHNOLOGY TRANSFER.—In carrying out the program,
the Administrator shall conduct a technology transfer program
including the development, collection, evaluation, coordination,
and dissemination of information relating to the utilization of
alternative or innovative treatment technologies for response
actions. The Administrator shall establish and maintain a central reference library for such information. The information
maintained by the Administrator shall be made available to
the public, subject to the provisions of section 552 of title 5 of
the United States Code and section 1905 of title 18 of the
United States Code, and to other Government agencies in a
manner that will facilitate its dissemination; except, that upon
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 311

SUPERFUND

646

a showing satisfactory to the Administrator by any person that
any information or portion thereof obtained under this subsection by the Administrator directly or indirectly from such
person, would, if made public, divulge—
(A) trade secrets; or
(B) other proprietary information of such person,
the Administrator shall not disclose such information and disclosure thereof shall be punishable under section 1905 of title
18 of the United States Code. This subsection is not authority
to withhold information from Congress or any committee of
Congress upon the request of the chairman of such committee.
(9) TRAINING.—The Administrator is authorized and directed to carry out, through the Office of Technology Demonstration, a program of training and an evaluation of training
needs for each of the following:
(A) Training in the procedures for the handling and
removal of hazardous substances for employees who handle hazardous substances.
(B) Training in the management of facilities at which
hazardous substances are located and in the evaluation of
the hazards to human health presented by such facilities
for State and local health and environment agency personnel.
(10) DEFINITION.—For purposes of this subsection, the
term ‘‘alternative or innovative treatment technologies’’ means
those technologies, including proprietary or patented methods,
which permanently alter the composition of hazardous waste
through chemical, biological, or physical means so as to significantly reduce the toxicity, mobility, or volume (or any combination thereof) of the hazardous waste or contaminated materials
being treated. The term also includes technologies that characterize or assess the extent of contamination, the chemical and
physical character of the contaminants, and the stresses imposed by the contaminants on complex ecosystems at sites.
(c) HAZARDOUS SUBSTANCE RESEARCH.—The Administrator
may conduct and support, through grants, cooperative agreements,
and contracts, research with respect to the detection, assessment,
and evaluation of the effects on and risks to human health of hazardous substances and detection of hazardous substances in the environment. The Administrator shall coordinate such research with
the Secretary of Health and Human Services, acting through the
advisory council established under this section, in order to avoid
duplication of effort.
(d) UNIVERSITY HAZARDOUS SUBSTANCE RESEARCH CENTERS.—
(1) GRANT PROGRAM.—The Administrator shall make
grants to institutions of higher learning to establish and operate not fewer than 5 hazardous substance research centers in
the United States. In carrying out the program under this subsection, the Administrator should seek to have established and
operated 10 hazardous substance research centers in the
United States.
(2) RESPONSIBILITIES OF CENTERS.—The responsibilities of
each hazardous substance research center established under
this subsection shall include, but not be limited to, the conduct
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
647

SUPERFUND

Sec. 311

of research and training relating to the manufacture, use,
transportation, disposal, and management of hazardous substances and publication and dissemination of the results of
such research.
(3) APPLICATIONS.—Any institution of higher learning interested in receiving a grant under this subsection shall submit
to the Administrator an application in such form and containing such information as the Administrator may require by
regulation.
(4) SELECTION CRITERIA.—The Administrator shall select
recipients of grants under this subsection on the basis of the
following criteria:
(A) The hazardous substance research center shall be
located in a State which is representative of the needs of
the region in which such State is located for improved hazardous waste management.
(B) The grant recipient shall be located in an area
which has experienced problems with hazardous substance
management.
(C) There is available to the grant recipient for carrying out this subsection demonstrated research resources.
(D) The capability of the grant recipient to provide
leadership in making national and regional contributions
to the solution of both long-range and immediate hazardous substance management problems.
(E) The grant recipient shall make a commitment to
support ongoing hazardous substance research programs
with budgeted institutional funds of at least $100,000 per
year.
(F) The grant recipient shall have an interdisciplinary
staff with demonstrated expertise in hazardous substance
management and research.
(G) The grant recipient shall have a demonstrated
ability to disseminate results of hazardous substance research and educational programs through an interdisciplinary continuing education program.
(H) The projects which the grant recipient proposes to
carry out under the grant are necessary and appropriate.
(5) MAINTENANCE OF EFFORT.—No grant may be made
under this subsection in any fiscal year unless the recipient of
such grant enters into such agreements with the Administrator
as the Administrator may require to ensure that such recipient
will maintain its aggregate expenditures from all other sources
for establishing and operating a regional hazardous substance
research center and related research activities at or above the
average level of such expenditures in its 2 fiscal years preceding the date of the enactment of this subsection.
(6) FEDERAL SHARE.—The Federal share of a grant under
this subsection shall not exceed 80 percent of the costs of establishing and operating the regional hazardous substance research center and related research activities carried out by the
grant recipient.
(7) LIMITATION ON USE OF FUNDS.—No funds made available to carry out this subsection shall be used for acquisition
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 312

SUPERFUND

648

of real property (including buildings) or construction of any
building.
(8) ADMINISTRATION THROUGH THE OFFICE OF THE ADMINISTRATOR.—Administrative responsibility for carrying out this
subsection shall be in the Office of the Administrator.
(9) EQUITABLE DISTRIBUTION OF FUNDS.—The Administrator shall allocate funds made available to carry out this subsection equitably among the regions of the United States.
(10) TECHNOLOGY TRANSFER ACTIVITIES.—Not less than
five percent of the funds made available to carry out this subsection for any fiscal year shall be available to carry out technology transfer activities.
(e) REPORT TO CONGRESS.—At the time of the submission of
the annual budget request to Congress, the Administrator shall
submit to the appropriate committees of the House of Representatives and the Senate and to the advisory council established under
subsection (a), a report on the progress of the research, development, and demonstration program authorized by subsection (b), including an evaluation of each demonstration project completed in
the preceding fiscal year, findings with respect to the efficacy of
such demonstrated technologies in achieving permanent and significant reductions in risk from hazardous wastes, the costs of such
demonstration projects, and the potential applicability of, and projected costs for, such technologies at other hazardous substance
sites.
(f) SAVING PROVISION.—Nothing in this section shall be construed to affect the provisions of the Solid Waste Disposal Act.
(g) SMALL BUSINESS PARTICIPATION.—The Administrator shall
ensure, to the maximum extent practicable, an adequate opportunity for small business participation in the program established
by subsection (b).
[42 U.S.C. 9660]
SEC. 312. LOVE CANAL PROPERTY ACQUISITION. 1
(a) ACQUISITION OF PROPERTY IN EMERGENCY DECLARATION
AREA.—The Administrator of the Environmental Protection Agency

(hereinafter referred to as the ‘‘Administrator’’) may make grants
not to exceed $2,500,000 to the State of New York (or to any duly
constituted public agency or authority thereof) for purposes of acquisition of private property in the Love Canal Emergency Declaration Area. Such acquisition shall include (but shall not be limited
to) all private property within the Emergency Declaration Area, including non-owner occupied residential properties, commercial, industrial, public, religious, non-profit, and vacant properties.
(b) PROCEDURES FOR ACQUISITION.—No property shall be acquired pursuant to this section unless the property owner voluntarily agrees to such acquisition. Compensation for any property acquired pursuant to this section shall be based upon the fair market
value of the property as it existed prior to the emergency declaration. Valuation procedures for property acquired with funds provided under this section shall be in accordance with those set forth
in the agreement entered into between the New York State Dis1 For additional provisions relating to this section, see section 213 of SARA of 1986 in this
print.

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
649

SUPERFUND

Sec. 312

aster Preparedness Commission and the Love Canal Revitalization
Agency on October 9, 1980.
(c) STATE OWNERSHIP.—The Administrator shall not provide
any funds under this section for the acquisition of any properties
pursuant to this section unless a public agency or authority of the
State of New York first enters into a cooperative agreement with
the Administrator providing assurances deemed adequate by the
Administrator that the State or an agency created under the laws
of the State shall take title to the properties to be so acquired.
(d) MAINTENANCE OF PROPERTY.—The Administrator shall
enter into a cooperative agreement with an appropriate public
agency or authority of the State of New York under which the Administrator shall maintain or arrange for the maintenance of all
properties within the Emergency Declaration Area that have been
acquired by any public agency or authority of the State. Ninety (90)
percent of the costs of such maintenance shall be paid by the Administrator. The remaining portion of such costs shall be paid by
the State (unless a credit is available under section 104(c)). The
Administrator is authorized, in his discretion, to provide technical
assistance to any public agency or authority of the State of New
York in order to implement the recommendations of the habitability and land-use study in order to put the land within the
Emergency Declaration Area to its best use.
(e) HABITABILITY AND LAND USE STUDY.—The Administrator
shall conduct or cause to be conducted a habitability and land-use
study. The study shall—
(1) assess the risks associated with inhabiting of the Love
Canal Emergency Declaration Area;
(2) compare the level of hazardous waste contamination in
that Area to that present in other comparable communities;
and
(3) assess the potential uses of the land within the Emergency Declaration Area, including but not limited to residential, industrial, commercial and recreational, and the risks associated with such potential uses.
The Administrator shall publish the findings of such study and
shall work with the State of New York to develop recommendations
based upon the results of such study.
(f) FUNDING.—For purposes of section 111 and 221(c) of this
Act, 1 the expenditures authorized by this section shall be treated
as a cost specified in section 111(c).
(g) RESPONSE.—The provisions of this section shall not affect
the implementation of other response actions within the Emergency Declaration Area that the Administrator has determined (before enactment of this section) to be necessary to protect the public
health or welfare or the environment.
(h) DEFINITIONS.—For purposes of this section:
(1) EMERGENCY DECLARATION AREA.—The terms ‘‘Emergency Declaration Area’’ and ‘‘Love Canal Emergency Declaration Area’’ mean the Emergency Declaration Area as defined in
section 950, paragraph (2) of the General Municipal Law of the
1 So in law. Section 221 of CERCLA was repealed by section 517(c) of title V of SARA of 1986
(Public Law 99–499).

December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 401

SUPERFUND

650

State of New York, Chapter 259, Laws of 1980, as in effect on
the date of the enactment of this section.
(2) PRIVATE PROPERTY.—As used in subsection (a), the
term ‘‘private property’’ means all property which is not owned
by a department, agency, or instrumentality of—
(A) the United States, or
(B) the State of New York (or any public agency or authority thereof).
[42 U.S.C. 9661]

TITLE IV—POLLUTION INSURANCE
SEC. 401. DEFINITIONS.

As used in this title—
(1) INSURANCE.—The term ‘‘insurance’’ means primary insurance, excess insurance, reinsurance, surplus lines insurance, and any other arrangement for shifting and distributing
risk which is determined to be insurance under applicable
State or Federal law.
(2) POLLUTION LIABILITY.—The term ‘‘pollution liability’’
means liability for injuries arising from the release of hazardous substances or pollutants or contaminants.
(3) RISK RETENTION GROUP.—The term ‘‘risk retention
group’’ means any corporation or other limited liability association taxable as a corporation, or as an insurance company,
formed under the laws of any State—
(A) whose primary activity consists of assuming and
spreading all, or any portion, of the pollution liability of its
group members;
(B) which is organized for the primary purpose of conducting the activity described under subparagraph (A);
(C) which is chartered or licensed as an insurance
company and authorized to engage in the business of insurance under the laws of any State; and
(D) which does not exclude any person from membership in the group solely to provide for members of such a
group a competitive advantage over such a person.
(4) PURCHASING GROUP.—The term ‘‘purchasing group’’
means any group of persons which has as one of its purposes
the purchase of pollution liability insurance on a group basis.
(5) STATE.—The term ‘‘State’’ means any State of the
United States, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, American Samoa, the Virgin Islands, the
Commonwealth of the Northern Marianas, and any other territory or possession over which the United States has jurisdiction.
[42 U.S.C. 9671]
SEC. 402. STATE LAWS; SCOPE OF TITLE.
(a) STATE LAWS.—Nothing in this title

shall be construed to affect either the tort law or the law governing the interpretation of
insurance contracts of any State. The definitions of pollution liability and pollution liability insurance under any State law shall not
be applied for the purposes of this title, including recognition or
qualification of risk retention groups or purchasing groups.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
651

SUPERFUND

Sec. 403

(b) SCOPE OF TITLE.—The authority to offer or to provide insurance under this title shall be limited to coverage of pollution liability risks and this title does not authorize a risk retention group or
purchasing group to provide coverage of any other line of insurance.
[42 U.S.C. 9672]
SEC. 403. RISK RETENTION GROUPS.
(a) EXEMPTION.—Except as provided

in this section, a risk retention group shall be exempt from the following:
(1) A State law, rule, or order which makes unlawful, or
regulates, directly or indirectly, the operation of a risk retention group.
(2) A State law, rule, or order which requires or permits
a risk retention group to participate in any insurance insolvency guaranty association to which an insurer licensed in the
State is required to belong.
(3) A State law, rule, or order which requires any insurance policy issued to a risk retention group or any member of
the group to be countersigned by an insurance agent or broker
residing in the State.
(4) A State law, rule, or order which otherwise discriminates against a risk retention group or any of its members.
(b) EXCEPTIONS.—
(1) STATE LAWS GENERALLY APPLICABLE.—Nothing in subsection (a) shall be construed to affect the applicability of State
laws generally applicable to persons or corporations. The State
in which a risk retention group is chartered may regulate the
formation and operation of the group.
(2) STATE REGULATIONS NOT SUBJECT TO EXEMPTION.—Subsection (a) shall not apply to any State law which requires a
risk retention group to do any of the following:
(A) Comply with the unfair claim settlement practices
law of the State.
(B) Pay, on a nondiscriminatory basis, applicable premium and other taxes which are levied on admitted insurers and surplus line insurers, brokers, or policyholders
under the laws of the State.
(C) Participate, on a nondiscriminatory basis, in any
mechanism established or authorized under the law of the
State for the equitable apportionment among insurers of
pollution liability insurance losses and expenses incurred
on policies written through such mechanism.
(D) Submit to the appropriate authority reports and
other information required of licensed insurers under the
laws of a State relating solely to pollution liability insurance losses and expenses.
(E) Register with and designate the State insurance
commissioner as its agent solely for the purpose of receiving service of legal documents or process.
(F) Furnish, upon request, such commissioner a copy
of any financial report submitted by the risk retention
group to the commissioner of the chartering or licensing
jurisdiction.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
Sec. 404

SUPERFUND

652

(G) Submit to an examination by the State insurance
commissioner in any State in which the group is doing
business to determine the group’s financial condition, if—
(i) the commissioner has reason to believe the risk
retention group is in a financially impaired condition;
and
(ii) the commissioner of the jurisdiction in which
the group is chartered has not begun or has refused to
initiate an examination of the group.
(H) Comply with a lawful order issued in a delinquency proceeding commenced by the State insurance commissioner if the commissioner of the jurisdiction in which
the group is chartered has failed to initiate such a proceeding after notice of a finding of financial impairment
under subparagraph (G).
(c) APPLICATION OF EXEMPTIONS.—The exemptions specified in
subsection (a) apply to—
(1) pollution liability insurance coverage provided by a risk
retention group for—
(A) such group; or
(B) any person who is a member of such group;
(2) the sale of pollution liability insurance coverage for a
risk retention group; and
(3) the provision of insurance related services or management services for a risk retention group or any member of such
a group.
(d) AGENTS OR BROKERS.—A State may require that a person
acting, or offering to act, as an agent or broker for a risk retention
group obtain a license from that State, except that a State may not
impose any qualification or requirement which discriminates
against a nonresident agent or broker.
[42 U.S.C. 9673]
SEC. 404. PURCHASING GROUPS.
(a) EXEMPTION.—Except as

provided in this section, a purchasing group is exempt from the following:
(1) A State law, rule, or order which prohibits the establishment of a purchasing group.
(2) A State law, rule, or order which makes it unlawful for
an insurer to provide or offer to provide insurance on a basis
providing, to a purchasing group or its member, advantages,
based on their loss and expense experience, not afforded to
other persons with respect to rates, policy forms, coverages, or
other matters.
(3) A State law, rule, or order which prohibits a purchasing group or its members from purchasing insurance on
the group basis described in paragraph (2) of this subsection.
(4) A State law, rule, or order which prohibits a purchasing group from obtaining insurance on a group basis because the group has not been in existence for a minimum period of time or because any member has not belonged to the
group for a minimum period of time.
December 31, 2002

Q:\COMP\ENVIR2\CERCLA
653

SUPERFUND

Sec. 405

(5) A State law, rule, or order which requires that a purchasing group must have a minimum number of members,
common ownership or affiliation, or a certain legal form.
(6) A State law, rule, or order which requires that a certain percentage of a purchasing group must obtain insurance
on a group basis.
(7) A State law, rule, or order which requires that any insurance policy issued to a purchasing group or any members
of the group be countersigned by an insurance agent or broker
residing in that State.
(8) A State law, rule, or order which otherwise discriminate 1 against a purchasing group or any of its members.
(b) APPLICATION OF EXEMPTIONS.—The exemptions specified in
subsection (a) apply to the following:
(1) Pollution liability insurance, and comprehensive general liability insurance which includes this coverage, provided
to—
(A) a purchasing group; or
(B) any person who is a member of a purchasing
group.
(2) The sale of any one of the following to a purchasing
group or a member of the group:
(A) Pollution liability insurance and comprehensive
general liability coverage.
(B) Insurance related services.
(C) Management services.
(c) AGENTS OR BROKERS.—A State may require that a person
acting, or offering to act, as an agent or broker for a purchasing
group obtain a license from that State, except that a State may not
impose any qualification or requirement which discriminates
against a nonresident agent or broker.
[42 U.S.C. 9674]
SEC. 405. APPLICABILITY OF SECURITIES LAWS.
(a) OWNERSHIP INTERESTS.—The ownership

interests of members of a risk retention group shall be considered to be—
(1) exempted securities for purposes of section 5 of the Securities Act of 1933 and for purposes of section 12 of the Securities Exchange Act of 1934; and
(2) securities for purposes of the provisions of section 17 of
the Securities Act of 1933 and the provisions of section 10 of
the Securities Exchange Act of 1934.
(b) INVESTMENT COMPANY ACT.—A risk retention group shall
not be considered to be an investment company for purposes of the
Investment Company Act of 1940 (15 U.S.C. 80a–1 et seq.).
(c) BLUE SKY LAW.—The ownership interests of members in a
risk retention group shall not be considered securities for purposes
of any State blue sky law.
[42 U.S.C. 9675]

1 So

December 31, 2002

in law. Probably should be ‘‘discriminates’’.