42 U.S.C. § 9612 — Claims procedure

Page 7763 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9612 shall be available for the provision of alternative water supplies (including the reimbursement of costs incurred by a municipality) in any case involving groundwater contamination outside the boundaries of a federally owned facility in which the federally owned facility is not the only potentially responsible party’’. Subsec. (f). Pub. L. 99–499, § 207(d)(3), inserted ‘‘or In- dian tribe’’. Subsec. (h). Pub. L. 99–499, § 111(c)(2), struck out sub- sec. (h) which read as follows: ‘‘(1) In accordance with regulations promulgated under section 9651(c) of this title, damages for injury to, destruction of, or loss of natural resources resulting from a release of a hazardous substance, for the pur- poses of this chapter and section 1321(f)(4) and (5) of title 33, shall be assessed by Federal officials des- ignated by the President under the national contin- gency plan published under section 9605 of this title, and such officials shall act for the President as trustee under this section and section 1321(f)(5) of title 33. ‘‘(2) Any determination or assessment of damages for injury to, destruction of, or loss of natural resources for the purposes of this chapter and section 1321(f)(4) and (5) of title 33 shall have the force and effect of a re- buttable presumption on behalf of any claimant (in- cluding a trustee under section 9607 of this title or a Federal agency) in any judicial or adjudicatory admin- istrative proceeding under this chapter or section 1321 of title 33.’’ Subsec. (i). Pub. L. 99–499, § 207(d)(4), inserted ‘‘and by the governing body of any Indian tribe having sus- tained damage to natural resources belonging to, man- aged by, controlled by, or appertaining to such tribe, or held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust restriction on alienation,’’ after ‘‘State,’’. Subsec. (k). Pub. L. 99–499, § 111(g), amended subsec. (k) generally. Prior to amendment, subsec. (k) read as follows: ‘‘The Inspector General of each department or agency to which responsibility to obligate money in the Fund is delegated shall provide an audit review team to audit all payments, obligations, reimburse- ments, or other uses of the Fund, to assure that the Fund is being properly administered and that claims are being appropriately and expeditiously considered. Each such Inspector General shall submit to the Con- gress an interim report one year after the establish- ment of the Fund and a final report two years after the establishment of the Fund. Each such Inspector Gen- eral shall thereafter provide such auditing of the Fund as is appropriate. Each Federal agency shall cooperate with the Inspector General in carrying out this sub- section.’’ Subsecs. (m) to (p). Pub. L. 99–499, § 111(h), (i), added subsecs. (m) to (p). Statutory Notes and Related Subsidiaries TERMINATION OF REPORTING REQUIREMENTS For termination, effective May 15, 2000, of provisions in subsec. (k) of this section relating to the require- ment that the Inspector General submit an annual re- port to Congress on the audit report required under subsec. (k), see section 3003 of Pub. L. 104–66, as amend- ed, set out as a note under section 1113 of Title 31, Money and Finance, and the 7th item on page 151 of House Document No. 103–7. SATISFACTION OF SUPERFUND AUDIT REQUIREMENTS BY INSPECTOR GENERAL OF THE DEPARTMENT OF DEFENSE Pub. L. 108–375, div. A, title III, § 311, Oct. 28, 2004, 118 Stat. 1842, provided that: ‘‘(a) SATISFACTION OF REQUIREMENTS.—The Inspector General of the Department of Defense shall be deemed to be in compliance with the requirements of section 111(k) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9611(k)) if the Inspector General conducts periodic au- dits of the payments, obligations, reimbursements, and other uses of the Hazardous Substance Superfund by the Department of Defense, even if such audits do not occur on an annual basis. ‘‘(b) REPORTS TO CONGRESS ON AUDITS.—The Inspector General shall submit to Congress a report on each audit conducted by the Inspector General as described in sub- section (a).’’ COORDINATION OF TITLES I TO IV OF PUB. L. 99–499 Any provision of titles I to IV of Pub. L. 99–499, im- posing any tax, premium, or fee; establishing any trust fund; or authorizing expenditures from any trust fund, to have no force or effect, see section 531 of Pub. L. 99–499, set out as a note under section 1 of Title 26, In- ternal Revenue Code. § 9612. Claims procedure (a) Claims against Fund for response costs No claim may be asserted against the Fund pursuant to section 9611(a) of this title unless such claim is presented in the first instance to the owner, operator, or guarantor of the vessel or facility from which a hazardous substance has been released, if known to the claimant, and to any other person known to the claimant who may be liable under section 9607 of this title. In any case where the claim has not been satisfied within 60 days of presentation in accordance with this subsection, the claimant may present the claim to the Fund for payment. No claim against the Fund may be approved or certified during the pendency of an action by the claim- ant in court to recover costs which are the sub- ject of the claim. (b) Forms and procedures applicable (1) Prescribing forms and procedures The President shall prescribe appropriate forms and procedures for claims filed here- under, which shall include a provision requir- ing the claimant to make a sworn verification of the claim to the best of his knowledge. Any person who knowingly gives or causes to be given any false information as a part of any such claim shall, upon conviction, be fined in accordance with the applicable provisions of title 18 or imprisoned for not more than 3 years (or not more than 5 years in the case of a second or subsequent conviction), or both. (2) Payment or request for hearing The President may, if satisfied that the in- formation developed during the processing of the claim warrants it, make and pay an award of the claim, except that no claim may be awarded to the extent that a judicial judg- ment 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 adminis- trative 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 ap- propriate parties, and shall be rendered within 90 days of submission of a claim to an adminis- Page 7764 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9612 trative law judge, unless all the parties to the claim agree in writing to an extension or un- less 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 arbi- trary or capricious abuse of discretion. (6) Payment Within 20 days after the expiration of the ap- peal 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 Presi- dent shall pay any such award from the Fund. The President shall determine the method, terms, and time of payment. (c) Subrogation rights; actions maintainable (1) Payment of any claim by the Fund under this section shall be subject to the United States Government acquiring by subrogation the rights of the claimant to recover those costs of removal or damages for which it has com- pensated the claimant from the person respon- sible or liable for such release. (2) Any person, including the Fund, who pays compensation pursuant to this chapter to any claimant for damages or costs resulting from a release of a hazardous substance shall be sub- rogated to all rights, claims, and causes of ac- tion for such damages and costs of removal that the claimant has under this chapter or any other law. (3) Upon request of the President, the Attor- ney General shall commence an action on behalf of the Fund to recover any compensation paid by the Fund to any claimant pursuant to this subchapter, and, without regard to any limita- tion of liability, all interest, administrative and adjudicative costs, and attorney’s fees incurred by the Fund by reason of the claim. Such an ac- tion may be commenced against any owner, op- erator, or guarantor, or against any other per- son 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 sec- tion for recovery of the costs referred to in section 9607(a) of this title after the date 6 years after the date of completion of all re- sponse action. (2) Claims for recovery of damages No claim may be presented under this sec- tion for recovery of the damages referred to in section 9607(a) of this title unless the claim is presented within 3 years after the later of the following: (A) The date of the discovery of the loss and its connection with the release in ques- tion. (B) The date on which final regulations are promulgated under section 9651(c) of this title. (3) Minors and incompetents The time limitations contained herein shall not begin to run— (A) against a minor until the earlier of the date when such minor reaches 18 years of age or the date on which a legal representative is duly appointed for the minor, or (B) against an incompetent person until the earlier of the date on which such per- son’s incompetency ends or the date on which a legal representative is duly ap- pointed for such incompetent person. (e) Other statutory or common law claims not waived, etc. Regardless of any State statutory or common law to the contrary, no person who asserts a claim against the Fund pursuant to this sub- chapter shall be deemed or held to have waived any other claim not covered or assertable against the Fund under this subchapter arising from the same incident, transaction, or set of circumstances, nor to have split a cause of ac- tion. Further, no person asserting a claim against the Fund pursuant to this subchapter shall as a result of any determination of a ques- tion of fact or law made in connection with that claim be deemed or held to be collaterally es- topped from raising such question in connection with any other claim not covered or assertable against the Fund under this subchapter 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 9611(c)(1) or (2) of this title, no other claim may be paid out of the Fund for the same costs. (Pub. L. 96–510, title I, § 112, Dec. 11, 1980, 94 Stat. 2792; Pub. L. 99–499, title I, §§ 109(a)(3), 112, Oct. 17, 1986, 100 Stat. 1633, 1646.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (c)(2), was in the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Envi- ronmental Response, Compensation, and Liability Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 9601 of this title and Tables. AMENDMENTS 1986—Subsec. (a). Pub. L. 99–499, § 112(a), amended sub- sec. (a) generally. Prior to amendment, subsec. (a) read as follows: ‘‘All claims which may be asserted against the Fund pursuant to section 9611 of this title shall be presented in the first instance to the owner, operator, or guarantor of the vessel or facility from which a haz- ardous substance has been released, if known to the claimant, and to any other person known to the claim- ant who may be liable under section 9607 of this title. Page 7765 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 9613 1 See References in Text note below. In any case where the claim has not been satisfied within sixty days of presentation in accordance with this subsection, the claimant may elect to commence an action in court against such owner, operator, guar- antor, or other person or to present the claim to the Fund for payment.’’ Subsec. (b)(1). Pub. L. 99–499, § 112(b), added heading. Pub. L. 99–499, § 109(a)(3), substituted ‘‘in accordance with the applicable provisions of title 18 or imprisoned for not more than 3 years (or not more than 5 years in the case of a second or subsequent conviction), or both’’ for ‘‘up to $5,000 or imprisoned for not more than one year, or both’’. Subsec. (b)(2) to (6). Pub. L. 99–499, § 112(b), added pars. (2) to (6) and struck out former pars. (2) to (4) which related to the settlement and arbitration of claims against liable persons and against the Fund. Subsec. (d). Pub. L. 99–499, § 112(c), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: ‘‘No claim may be presented, nor may an ac- tion be commenced for damages under this subchapter, unless that claim is presented or action commenced within three years from the date of the discovery of the loss or December 11, 1980, whichever is later: Provided, however, That the time limitations contained herein shall not begin to run against a minor until he reaches eighteen years of age or a legal representative is duly appointed for him, nor against an incompetent person until his incompetency ends or a legal representative is duly appointed for him.’’ Subsec. (f). Pub. L. 99–499, § 112(d), added subsec. (f). Statutory Notes and Related Subsidiaries COORDINATION OF TITLES I TO IV OF PUB. L. 99–499 Any provision of titles I to IV of Pub. L. 99–499, im- posing any tax, premium, or fee; establishing any trust fund; or authorizing expenditures from any trust fund, to have no force or effect, see section 531 of Pub. L. 99–499, set out as a note under section 1 of Title 26, In- ternal Revenue Code. § 9613. Civil proceedings (a) Review of regulations in Circuit Court of Ap- peals of the United States for the District of Columbia Review of any regulation promulgated under this chapter may be had upon application by any interested person only in the Circuit Court of Appeals of the United States for the District of Columbia. Any such application shall be made within ninety days from the date of promulga- tion of such regulations. Any matter with re- spect to which review could have been obtained under this subsection shall not be subject to ju- dicial review in any civil or criminal proceeding for enforcement or to obtain damages or recov- ery of response costs. (b) Jurisdiction; venue Except as provided in subsections (a) and (h) of this section, the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter, without regard to the citizenship of the parties or the amount in controversy. Venue shall lie in any district in which the release or damages oc- curred, or in which the defendant resides, may be found, or has his principal office. For the pur- poses of this section, the Fund shall reside in the District of Columbia. (c) Controversies or other matters resulting from tax collection or tax regulation review The provisions of subsections (a) and (b) of this section shall not apply to any controversy or other matter resulting from the assessment of collection of any tax, as provided by sub- chapter II 1 of this chapter, or to the review of any regulation promulgated under title 26. (d) Litigation commenced prior to December 11, 1980 No provision of this chapter shall be deemed or held to moot any litigation concerning any release of any hazardous substance, or any dam- ages associated therewith, commenced prior to December 11, 1980. (e) Nationwide service of process In any action by the United States under this chapter, process may be served in any district where the defendant is found, resides, transacts business, or has appointed an agent for the serv- ice of process. (f) Contribution (1) Contribution Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Fed- eral law. In resolving contribution claims, the court may allocate response costs among lia- ble 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 9606 of this title or section 9607 of this title. (2) Settlement A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such set- tlement 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 ob- tained less than complete relief from a person who has resolved its liability to the United States or the State in an administrative or ju- dicially 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 con- tribution 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 li- ability to the United States or a State shall be subordinate to the rights of the United States