42 U.S.C. § 9628 — State response programs

Page 7799 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9628 (2) create any presumption of liability against any person to whom subsection (a)(1) does not apply. (Pub. L. 96–510, title I, § 127, as added Pub. L. 106–113, div. B, § 1000(a)(9) [title VI, § 6001(b)(1)], Nov. 29, 1999, 113 Stat. 1536, 1501A–599.) Editorial Notes REFERENCES IN TEXT The Solid Waste Disposal Act, referred to in subsecs. (d)(1)(B) and (k), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2795, which is classified generally to chapter 82 (§ 6901 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables. Statutory Notes and Related Subsidiaries SUPERFUND RECYCLING EQUITY; PURPOSES Pub. L. 106–113, div. B, § 1000(a)(9) [title VI, § 6001(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A–598, provided that: ‘‘The purposes of this section [enacting this section] are— ‘‘(1) to promote the reuse and recycling of scrap material in furtherance of the goals of waste mini- mization and natural resource conservation while protecting human health and the environment; ‘‘(2) to create greater equity in the statutory treat- ment of recycled versus virgin materials; and ‘‘(3) to remove the disincentives and impediments to recycling created as an unintended consequence of the 1980 Superfund liability provisions.’’ § 9628. State response programs (a) Assistance to States (1) In general (A) States The Administrator 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 reason- able 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 vol- untary 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 en- hance 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 9604(k)(3) of this title; (II) purchase insurance or develop a risk sharing pool, an indemnity pool, or insurance mechanism to provide financ- ing for response actions under a State re- sponse program; or (III) assist small communities, Indian tribes, rural areas, or disadvantaged areas in carrying out activities described in section 9604(k)(7)(A) of this title with respect to brownfield sites. (iii) Small communities, Indian tribes, rural areas, and disadvantaged areas (I) In general To make grants to States or Indian tribes under clause (ii)(III), the Adminis- trator may use, in addition to amounts available to carry out this subsection, not more than $1,500,000 of the amounts made available to carry out section 9604(k)(7) of this title in each fiscal year. (II) Limitation Each grant made under subclause (I) may be not more than $20,000. (III) Inclusion in other grants The Administrator may, at the request of a State or Indian tribe, include a grant under this clause in any other grant to the State or Indian tribe made under this subsection. (iv) Definitions In this subparagraph: (I) Disadvantaged area The term ‘‘disadvantaged area’’ means a community with an annual median household income that is less than 80 percent of the statewide annual median household income, as determined by the President based on the latest available decennial census. (II) Small community The term ‘‘small community’’ means a community with a population of not more than 15,000 individuals, as deter- mined by the President based on the lat- est available decennial census. (2) Elements The elements of a State or Indian tribe re- sponse 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 envi- ronment; 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 re- sponse activities, including operation and maintenance or long-term monitoring ac- tivities, the necessary response activities are completed. (C) Mechanisms and resources to provide meaningful opportunities for public partici- pation, 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; Page 7800 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9628 (ii) prior notice and opportunity for com- ment 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 con- taminant at a brownfield site located in the community in which the person works or resides may request the con- duct 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 2019 through 2023. (b) Enforcement in cases of a release subject to State program (1) Enforcement (A) In general Except as provided in subparagraph (B) and subject to subparagraph (C), in the case of an eligible response site at which— (i) there is a release or threatened re- lease of a hazardous substance, pollutant, or contaminant; and (ii) a person is conducting or has com- pleted a response action regarding the spe- cific release that is addressed by the re- sponse action that is in compliance with the State program that specifically gov- erns response actions for the protection of public health and the environment, the President may not use authority under this chapter to take an administrative or ju- dicial enforcement action under section 9606(a) of this title or to take a judicial en- forcement action to recover response costs under section 9607(a) of this title against the person regarding the specific release that is addressed by the response action. (B) Exceptions The President may bring an administra- tive or judicial enforcement action under this chapter 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 mi- grate 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, cus- tody, 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 Ad- ministrator determines that— (I) a release or threatened release may present an imminent and substantial endangerment to public health or wel- fare or the environment; and (II) additional response actions are likely to be necessary to address, pre- vent, limit, or mitigate the release or threatened release; or (iv) the Administrator, after consulta- tion with the State, determines that infor- mation, 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 select- ing or conducting the cleanup, has been discovered regarding the contamination or conditions at a facility such that the con- tamination or conditions at the facility present a threat requiring further remedi- ation to protect public health or welfare or the environment. Consultation with the State shall not limit the ability of the Ad- ministrator 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 lo- cation, at which response actions have been completed in the previous year and are planned to be addressed under the State pro- gram that specifically governs response ac- tions 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 ac- tion, 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 re- lease of a hazardous substance, pollutant, or contaminant and for which the Admin- istrator 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 Page 7801 TITLE 42—THE PUBLIC HEALTH AND WELFARE §§ 9631 to 9633 (iii), take immediate action under that clause. (ii) State reply Not later than 48 hours after a State re- ceives notice from the Administrator under clause (i), the State shall notify the Administrator if— (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 ac- tions that are planned. (iii) Immediate Federal action The Administrator may take action im- mediately after giving notification under clause (i) without waiting for a State reply under clause (ii) if the Administrator de- termines that one or more exceptions under subparagraph (B) are met. (E) Report to Congress Not later than 90 days after the date of ini- tiation 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 sub- paragraph (B). (2) Savings provision (A) Costs incurred prior to limitations Nothing in paragraph (1) precludes the President from seeking to recover costs in- curred prior to January 11, 2002, 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 memo- randum of agreement, memorandum of un- derstanding, or any similar agreement re- lating to this chapter between a State agency or an Indian tribe and the Adminis- trator that is in effect on or before Janu- ary 11, 2002 (which agreement shall remain in effect, subject to the terms of the agree- ment); 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 imple- mentation by the President of statutory authorities. (3) Effective date This subsection applies only to response ac- tions conducted after February 15, 2001. (c) Effect on Federal laws Nothing in this section affects any liability or response authority under any Federal law, in- cluding— (1) this chapter, except as provided in sub- section (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.). (Pub. L. 96–510, title I, § 128, as added Pub. L. 107–118, title II, § 231(b), Jan. 11, 2002, 115 Stat. 2375; amended Pub. L. 115–141, div. N, §§ 14(a), 15, Mar. 23, 2018, 132 Stat. 1058, 1059.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (b)(1)(A), (B), (2)(B)(i) and (c)(1), was in the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which is clas- sified principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 9601 of this title and Tables. The Solid Waste Disposal Act, referred to in subsec. (c)(2), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2795, which is classified generally to chap- ter 82 (§ 6901 et seq.) of this title. For complete classi- fication of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables. The Federal Water Pollution Control Act, referred to in subsec. (c)(3), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 816, which is classified generally to chapter 26 (§ 1251 et seq.) of Title 33, Navigation and Navigable Waters. For com- plete classification of this Act to the Code, see Short Title note set out under section 1251 of Title 33 and Ta- bles. The Toxic Substances Control Act, referred to in sub- sec. (c)(4), is Pub. L. 94–469, Oct. 11, 1976, 90 Stat. 2003, which is classified generally to chapter 53 (§ 2601 et seq.) of Title 15, Commerce and Trade. For complete classi- fication of this Act to the Code, see Short Title note set out under section 2601 of Title 15 and Tables. The Safe Drinking Water Act, referred to in subsec. (c)(5), is title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660, which is classi- fied generally to subchapter XII (§ 300f et seq.) of chap- ter 6A of this title. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 201 of this title and Tables. AMENDMENTS 2018—Subsec. (a)(1)(B)(ii)(III). Pub. L. 115–141, § 14(a)(1), added subcl. (III). Subsec. (a)(1)(B)(iii), (iv). Pub. L. 115–141, § 14(a)(2), added cls. (iii) and (iv). Subsec. (a)(3). Pub. L. 115–141, § 15, amended par. (3) generally. Prior to amendment, text read as follows: ‘‘There is authorized to be appropriated to carry out this subsection $50,000,000 for each of fiscal years 2002 through 2006.’’ SUBCHAPTER II—HAZARDOUS SUBSTANCE RESPONSE REVENUE PART A—HAZARDOUS SUBSTANCE RESPONSE TRUST FUND §§ 9631 to 9633. Repealed. Pub. L. 99–499, title V, § 517(c)(1), Oct. 17, 1986, 100 Stat. 1774 Section 9631, Pub. L. 96–510, title II, § 221, Dec. 11, 1980, 94 Stat. 2801; Pub. L. 99–499, title II, § 204, Oct. 17, 1986, 100 Stat. 1696, provided for establishment of a Haz- ardous Substances Superfund, so redesignated by sec- tion 204 of Pub. L. 99–499. See section 9507 of Title 26, Internal Revenue Code.