42 U.S.C. § 9605 — National contingency plan

Page 7739 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9605 1 See References in Text note below. § 9605. National contingency plan (a) Revision and republication Within one hundred and eighty days after De- cember 11, 1980, the President shall, after notice and opportunity for public comments, revise and republish the national contingency plan for the removal of oil and hazardous substances, origi- nally prepared and published pursuant to sec- tion 1321 of title 33, to reflect and effectuate the responsibilities and powers created by this chap- ter, in addition to those matters specified in sec- tion 1321(c)(2) 1 of title 33. Such revision shall in- clude 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 sub- stances, pollutants, and contaminants, which shall include at a minimum: (1) methods for discovering and inves- tigating facilities at which hazardous sub- stances have been disposed of or otherwise come to be located; (2) methods for evaluating, including anal- yses of relative cost, and remedying any re- leases or threats of releases from facilities which pose substantial danger to the public health or the environment; (3) methods and criteria for determining the appropriate extent of removal, remedy, and other measures authorized by this chapter; (4) appropriate roles and responsibilities for the Federal, State, and local governments and for interstate and nongovernmental entities in effectuating the plan; (5) provision for identification, procurement, maintenance, and storage of response equip- ment and supplies; (6) a method for and assignment of responsi- bility for reporting the existence of such fa- cilities which may be located on federally owned or controlled properties and any re- leases of hazardous substances from such fa- cilities; (7) means of assuring that remedial action measures are cost-effective over the period of potential exposure to the hazardous sub- stances 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 tak- ing removal action. Criteria and priorities under this paragraph shall be based upon rel- ative risk or danger to public health or wel- fare or the environment, in the judgment of the President, taking into account to the ex- tent possible the population at risk, the haz- ard potential of the hazardous substances at such facilities, the potential for contamina- tion of drinking water supplies, the potential for direct human contact, the potential for de- struction 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 con- tamination or potential contamination of the ambient air which is associated with the re- lease or threatened release, State prepared- ness to assume State costs and responsibil- ities, and other appropriate factors; (B) based upon the criteria set forth in sub- paragraph (A) of this paragraph, the President shall list as part of the plan national priorities among the known releases or threatened re- leases throughout the United States and shall revise the list no less often than annually. Within one year after December 11, 1980, and annually thereafter, each State shall establish and submit for consideration by the President priorities for remedial action among known releases and potential releases in that State based upon the criteria set forth in subpara- graph (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 individ- ually and shall be referred to as the ‘‘top pri- ority 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 pre- senting the greatest danger to public health or welfare or the environment among the known facilities in such State. A State shall be al- lowed to designate its highest priority facility only once. Other priority facilities or inci- dents may be listed singly or grouped for re- sponse priority purposes; (9) specified roles for private organizations and entities in preparation for response and in responding to releases of hazardous sub- stances, including identification of appro- priate 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 appro- priate for utilization in response actions au- thorized by this chapter. The plan shall specify procedures, techniques, materials, equipment, and methods to be em- ployed in identifying, removing, or remedying releases of hazardous substances comparable to those required under section 1321(c)(2)(F) and (G) and (j)(1) of title 33. Following publication of the revised national contingency plan, the response to and actions to minimize damage from haz- ardous substances releases shall, to the greatest extent possible, be in accordance with the provi- sions of the plan. The President may, from time to time, revise and republish the national con- tingency plan. (b) Revision of plan Not later than 18 months after the enactment of the Superfund Amendments and Reauthoriza- tion Act of 1986 [October 17, 1986], the President shall revise the National Contingency Plan to reflect the requirements of such amendments. The portion of such Plan known as ‘‘the Na- tional Hazardous Substance Response Plan’’ shall be revised to provide procedures and stand- ards for remedial actions undertaken pursuant to this chapter which are consistent with Page 7740 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9605 amendments made by the Superfund Amend- ments and Reauthorization Act of 1986 relating to the selection of remedial action. (c) Hazard ranking system (1) Revision Not later than 18 months after October 17, 1986, and after publication of notice and oppor- tunity for submission of comments in accord- ance with section 553 of title 5, the President shall by rule promulgate amendments to the hazard ranking system in effect on September 1, 1984. Such amendments shall assure, to the maximum extent feasible, that the hazard ranking system accurately assesses the rel- ative degree of risk to human health and the environment posed by sites and facilities sub- ject to review. The President shall establish an effective date for the amended hazard rank- ing system which is not later than 24 months after October 17, 1986. Such amended hazard ranking system shall be applied to any site or facility to be newly listed on the National Pri- orities List after the effective date established by the President. Until such effective date of the regulations, the hazard ranking system in effect on September 1, 1984, shall continue in full force and effect. (2) Health assessment of water contamination risks In carrying out this subsection, the Presi- dent shall ensure that the human health risks associated with the contamination or poten- tial contamination (either directly or as a re- sult of the runoff of any hazardous substance or pollutant or contaminant from sites or fa- cilities) of surface water are appropriately as- sessed where such surface water is, or can be, used for recreation or potable water consump- tion. In making the assessment required pur- suant to the preceding sentence, the President shall take into account the potential migra- tion 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 re- evaluate, after October 17, 1986, the hazard ranking of any facility which was evaluated in accordance with the criteria under this sec- tion before the effective date of the amend- ments to the hazard ranking system under this subsection and which was assigned a na- tional priority under the National Contin- gency Plan. (4) New information Nothing in paragraph (3) shall preclude the President from taking new information into account in undertaking response actions under this chapter. (d) Petition for assessment of release Any person who is, or may be, affected by a re- lease or threatened release of a hazardous sub- stance or pollutant or contaminant, may peti- tion the President to conduct a preliminary as- sessment of the hazards to public health and the environment which are associated with such re- lease or threatened release. If the President has not previously conducted a preliminary assess- ment of such release, the President shall, within 12 months after the receipt of any such petition, complete such assessment or provide an expla- nation 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 environ- ment, the President shall promptly evaluate such release or threatened release in accordance with the hazard ranking system referred to in paragraph (8)(A) of subsection (a) to determine the national priority of such release or threat- ened release. (e) Releases from earlier sites Whenever there has been, after January 1, 1985, a significant release of hazardous sub- stances 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 sys- tem. (f) Minority contractors In awarding contracts under this chapter, the President shall consider the availability of qualified minority firms. The President shall de- scribe, as part of any annual report submitted to the Congress under this chapter, the participa- tion of minority firms in contracts carried out under this chapter. Such report shall contain a brief description of the contracts which have been awarded to minority firms under this chap- ter and of the efforts made by the President to encourage the participation of such firms in pro- grams carried out under this chapter. (g) Special study wastes (1) Application This subsection applies to facilities— (A) which as of October 17, 1986, were not included on, or proposed for inclusion on, the National Priorities List; and (B) at which special study wastes described in paragraph (2), (3)(A)(ii) or (3)(A)(iii) of section 6921(b) of this title are present in sig- nificant quantities, including any such facil- ity 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 sys- tem under subsection (c), the President shall consider each of the following factors in add- ing 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 quan- tity, toxicity, and concentration of haz- ardous 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 de- gree of hazard to human health or the envi- Page 7741 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9605 ronment posed by the release of such haz- ardous constituents at such facility. This subparagraph refers only to available infor- mation on actual concentrations of haz- ardous substances and not on the total quan- tity of special study waste at such facility. (3) Savings provisions Nothing in this subsection shall be con- strued to limit the authority of the President to remove any facility which as of October 17, 1986, is included on the National Priorities List from such List, or not to list any facility which as of such date is proposed for inclusion on such list. (4) Information gathering and analysis Nothing in this chapter shall be construed to preclude the expenditure of monies from the Fund for gathering and analysis of informa- tion which will enable the President to con- sider the specific factors required by para- graph (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 protec- tion of human health and the environ- ment; or (B) the State is actively pursuing an agreement to perform a response action de- scribed 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 subpara- graph (A). (2) Progress toward cleanup If, after the last day of the 1-year period be- ginning on the date on which the President proposes to list an eligible response site on the National Priorities List, the President deter- mines that the State or other party is not making reasonable progress toward com- pleting a response action at the eligible re- sponse 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 eligi- ble 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 addi- tional 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 negotia- tions; and (C) other appropriate factors, as deter- mined by the President. (4) Exceptions The President may decline to defer, or elect to discontinue a deferral of, a listing of an eli- gible response site on the National Priorities List if the President determines that— (A) deferral would not be appropriate be- cause the State, as an owner or operator or a significant contributor of hazardous sub- stances to the facility, is a potentially re- sponsible party; (B) the criteria under the National Contin- gency Plan for issuance of a health advisory have been met; or (C) the conditions in paragraphs (1) through (3), as applicable, are no longer being met. (Pub. L. 96–510, title I, § 105, Dec. 11, 1980, 94 Stat. 2779; Pub. L. 99–499, title I, § 105, Oct. 17, 1986, 100 Stat. 1625; Pub. L. 107–118, title II, § 232, Jan. 11, 2002, 115 Stat. 2379.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (b), (c)(4), (f), and (g)(4), was in the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Com- prehensive Environmental Response, Compensation, and Liability Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 9601 of this title and Tables. Section 1321(c)(2) of title 33, referred to in subsec. (a), was amended generally by Pub. L. 101–380, title IV, § 4201(a), Aug. 18, 1990, 104 Stat. 523. Prior to general amendment, subsec. (c)(2) related to preparation of a National Contingency Plan. Provisions relating to a National Contingency Plan are contained in section 1321(d) of Title 33, Navigation and Navigable Waters. Such amendments and the amendments made by the Superfund Amendments and Reauthorization Act of 1986, referred to in subsec. (b), are the amendments made by Pub. L. 99–499, Oct. 17, 1986, 100 Stat. 1613. For complete classification of this Act to the Code, see Short Title of 1986 Amendment note set out under sec- tion 9601 of this title and Tables. AMENDMENTS 2002—Subsec. (h). Pub. L. 107–118 added subsec. (h). 1986—Subsec. (a). Pub. L. 99–499, § 105(a)(1), designated existing provisions as subsec. (a) and added heading. Subsec. (a)(8)(A). Pub. L. 99–499, § 105(a)(2), inserted ‘‘the damage to natural resources which may affect the human food chain and which is associated with any re- lease or threatened release, the contamination or po- tential contamination of the ambient air which is asso- ciated with the release or threatened release,’’ after ‘‘ecosystems,’’. Subsec. (a)(8)(B). Pub. L. 99–499, § 105(a)(3), struck out ‘‘at least four hundred of’’ after ‘‘To the extent prac- ticable,’’, substituted ‘‘one hundred highest priority fa- cilities’’ for ‘‘one hundred highest priority facilities at least’’, and inserted ‘‘A State shall be allowed to des- ignate its highest priority facility only once.’’ Subsec. (a)(9). Pub. L. 99–499, § 105(a)(4), inserted ‘‘and including consideration of minority firms in accord- ance with subsection (f)’’. Page 7742 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9606 1 See References in Text note below. Subsec. (a)(10). Pub. L. 99–499, § 105(a)(5), added par. (10). Subsecs. (b) to (g). Pub. L. 99–499, § 105(b), added sub- secs. (b) to (g). § 9606. Abatement actions (a) Maintenance, jurisdiction, etc. In addition to any other action taken by a State or local government, when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an ac- tual or threatened release of a hazardous sub- stance from a facility, he may require the Attor- ney 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 no- tice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to pro- tect public health and welfare and the environ- ment. (b) Fines; reimbursement (1) Any person who, without sufficient cause, willfully violates, or fails or refuses to comply with, any order of the President under sub- section (a) may, in an action brought in the ap- propriate 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 sub- section (a) may, within 60 days after completion of the required action, petition the President for reimbursement from the Fund for the reason- able costs of such action, plus interest. Any in- terest payable under this paragraph shall accrue on the amounts expended from the date of ex- penditure at the same rate as specified for inter- est on investments of the Hazardous Substance Superfund established under subchapter A of chapter 98 of title 26. (B) If the President refuses to grant all or part of a petition made under this paragraph, the pe- titioner may within 30 days of receipt of such re- fusal 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 es- tablish by a preponderance of the evidence that it is not liable for response costs under section 9607(a) of this title and that costs for which it seeks reimbursement are reasonable in light of the action required by the relevant order. (D) A petitioner who is liable for response costs under section 9607(a) of this title may also recover its reasonable costs of response to the extent that it can demonstrate, on the adminis- trative record, that the President’s decision in selecting the response action ordered was arbi- trary and capricious or was otherwise not in ac- cordance with law. Reimbursement awarded under this subparagraph shall include all rea- sonable response costs incurred by the peti- tioner pursuant to the portions of the order found to be arbitrary and capricious or other- wise not in accordance with law. (E) Reimbursement awarded by a court under subparagraph (C) or (D) may include appropriate costs, fees, and other expenses in accordance with subsections (a) and (d) of section 2412 of title 28. (c) Guidelines for using imminent hazard, en- forcement, and emergency response authori- ties; promulgation by Administrator of EPA, scope, etc. Within one hundred and eighty days after De- cember 11, 1980, the Administrator of the Envi- ronmental Protection Agency shall, after con- sultation 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 effec- tuate the responsibilities and powers created by this chapter. Such guidelines shall to the extent practicable be consistent with the national haz- ardous substance response plan, and shall in- clude, at a minimum, the assignment of respon- sibility for coordinating response actions with the issuance of administrative orders, enforce- ment of standards and permits, the gathering of information, and other imminent hazard and emergency powers authorized by (1) sections 1321(c)(2),1 1318, 1319, and 1364(a) of title 33, (2) sections 6927, 6928, 6934, and 6973 of this title, (3) sections 300j–4 and 300i of this title, (4) sections 7413, 7414, and 7603 of this title, and (5) section 2606 of title 15. (Pub. L. 96–510, title I, § 106, Dec. 11, 1980, 94 Stat. 2780; Pub. L. 99–499, title I, §§ 106, 109(b), Oct. 17, 1986, 100 Stat. 1628, 1633; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (c), was in the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Envi- ronmental Response, Compensation, and Liability Act of 1980, which enacted this chapter, section 6911a of this title, and sections 4611, 4612, 4661, 4662, 4681, and 4682 of Title 26, Internal Revenue Code, amended section 6911 of this title, section 1364 of Title 33, Navigation and Navigable Waters, and section 11901 of Title 49, Trans- portation, and enacted provisions set out as notes under section 6911 of this title and sections 1 and 4611 of Title 26. For complete classification of this Act to the Code, see Short Title note set out under section 9601 of this title and Tables. Section 1321(c)(2) of title 33, referred to in subsec. (c), was amended generally by Pub. L. 101–380, title IV, § 4201(a), Aug. 18, 1990, 104 Stat. 523. Prior to general amendment, subsec. (c)(2) related to preparation of a National Contingency Plan. Provisions relating to a National Contingency Plan are contained in section 1321(d) of Title 33, Navigation and Navigable Waters. AMENDMENTS 1986—Subsec. (b). Pub. L. 99–499 designated existing provisions as par. (1), substituted ‘‘who, without suffi- cient cause, willfully’’ for ‘‘who willfully’’ and ‘‘$25,000’’ for ‘‘$5,000’’, and added par. (2).