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TITLE 42--THE PUBLIC HEALTH AND WELFARE
CHAPTER 103--COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND
LIABILITY
SUBCHAPTER I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION
Sec. 9621. Cleanup standards
(a) Selection of remedial action
The President shall select appropriate remedial actions determined
to be necessary to be carried out under section 9604 of this title or
secured under section 9606 of this title which are in accordance with
this section and, to the extent practicable, the national contingency
plan, and which provide for cost-effective response. In evaluating the
cost effectiveness of proposed alternative remedial actions, the
President shall take into account the total short- and long-term costs
of such actions, including the costs of operation and maintenance for
the entire period during which such activities will be required.
(b) General rules
(1) Remedial actions in which treatment which permanently and
significantly reduces the volume, toxicity or mobility of the hazardous
substances, pollutants, and contaminants is a principal element, are to
be preferred over remedial actions not involving such treatment. The
offsite transport and disposal of hazardous substances or contaminated
materials without such treatment should be the least favored alternative
remedial action where practicable treatment technologies are available.
The President shall conduct an assessment of permanent solutions and
alternative treatment technologies or resource recovery technologies
that, in whole or in part, will result in a permanent and significant
decrease in the toxicity, mobility, or volume of the hazardous
substance, pollutant, or contaminant. In making such assessment, the
President shall specifically address the 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 [42 U.S.C. 6901 et seq.];
(C) the persistence, toxicity, mobility, and propensity to
bioaccumulate of such hazardous substances and their constituents;
(D) short- and long-term potential for adverse health effects
from human exposure;
(E) long-term maintenance costs;
(F) the potential for future remedial action costs if the
alternative remedial action in question were to fail; and
(G) the potential threat to human health and the environment
associated with excavation, transportation, and redisposal, or
containment.
The President shall select a remedial action that is protective of human
health and the environment, that is cost effective, and that utilizes
permanent solutions and alternative treatment technologies or resource
recovery technologies to the maximum extent practicable. If the
President selects a remedial action not appropriate for a preference
under this subsection, the President shall publish an explanation as to
why a remedial action involving such reductions was not selected.
(2) The President may select an alternative remedial action meeting
the objectives of this subsection whether or not such action has been
achieved in practice at any other facility or site that has similar
characteristics. In making such a selection, the President may take into
account the degree of support for such remedial action by parties
interested in such site.
(c) Review
If the President selects a remedial action that results in any
hazardous substances, pollutants, or contaminants remaining at the site,
the President shall review such remedial action no less often than each
5 years after the initiation of such remedial action to assure that
human health and the environment are being protected by the remedial
action being implemented. In addition, if upon such review it is the
judgment of the President that action is appropriate at such site in
accordance with section 9604 or 9606 of this title, the President shall
take or require such action. The President shall report to the Congress
a list of facilities for which such review is required, the results of
all such reviews, and any actions taken as a result of such reviews.
(d) Degree of cleanup
(1) Remedial actions selected under this section or otherwise
required or agreed to by the President under this chapter shall attain a
degree of cleanup of hazardous substances, pollutants, and contaminants
released into the environment and of control of further release at a
minimum which assures protection of human health and the environment.
Such remedial actions shall be relevant and appropriate under the
circumstances presented by the release or threatened release of such
substance, pollutant, or contaminant.
(2)(A) With respect to any hazardous substance, pollutant or
contaminant that will remain onsite, if--
(i) any standard, requirement, criteria, or limitation under any
Federal environmental law, including, but not limited to, the Toxic
Substances Control Act [15 U.S.C. 2601 et seq.], the Safe Drinking
Water Act [42 U.S.C. 300f et seq.], the Clean Air Act [42 U.S.C.
7401 et seq.], the Clean Water Act [33 U.S.C. 1251 et seq.], the
Marine Protection, Research and Sanctuaries Act [16 U.S.C. 1431 et
seq., 1447 et seq., 33 U.S.C. 1401 et seq., 2801 et seq.], or the
Solid Waste Disposal Act [42 U.S.C. 6901 et seq.]; or
(ii) any promulgated standard, requirement, criteria, or
limitation under a State environmental or facility siting law that
is more stringent than any Federal standard, requirement, criteria,
or limitation, including each such State standard, requirement,
criteria, or limitation contained in a program approved, authorized
or delegated by the Administrator under a statute cited in
subparagraph (A), and that has been identified to the President by
the State in a timely manner,
is legally applicable to the hazardous substance or pollutant or
contaminant concerned or is relevant and appropriate under the
circumstances of the release or threatened release of such hazardous
substance or pollutant or contaminant, the remedial action selected
under section 9604 of this title or secured under section 9606 of this
title shall require, at the completion of the remedial action, a level
or standard of control for such hazardous substance or pollutant or
contaminant which at least attains such legally applicable or relevant
and appropriate standard, requirement, criteria, or limitation. Such
remedial action shall require a level or standard of control which at
least attains Maximum Contaminant Level Goals established under the Safe
Drinking Water Act [42 U.S.C. 300f et seq.] and water quality criteria
established under section 304 or 303 of the Clean Water Act [33 U.S.C.
1314, 1313], where such goals or criteria are relevant and appropriate
under the circumstances of the release or threatened release.
(B)(i) In determining whether or not any water quality criteria
under the Clean Water Act [33 U.S.C. 1251 et seq.] is relevant and
appropriate under the circumstances of the release or threatened
release, the President shall consider the designated or potential use of
the surface or groundwater, the environmental media affected, the
purposes for which such criteria were developed, and the latest
information available.
(ii) For the purposes of this section, a process for establishing
alternate concentration limits to those otherwise applicable for
hazardous constituents in groundwater under subparagraph (A) may not be
used to establish applicable standards under this paragraph if the
process assumes a point of human exposure beyond the boundary of the
facility, as defined at the conclusion of the remedial investigation and
feasibility study, except where--
(I) there are known and projected points of entry of such
groundwater into surface water; and
(II) on the basis of measurements or projections, there is or
will be no statistically significant increase of such constituents
from such groundwater in such surface water at the point of entry or
at any point where there is 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 this section, of a proposed remedial action which
does not permanently and significantly reduce the volume, toxicity, or
mobility of hazardous substances, pollutants, or contaminants, the
proposed disposition of waste generated by or associated with the
remedial action selected by the President is land disposal in a State
referred to in clause (ii).
(ii) Except as provided in clauses (iii) and (iv), a State standard,
requirement, criteria, or limitation (including any State siting
standard or requirement) which could effectively result in the statewide
prohibition of land disposal of hazardous substances, pollutants, or
contaminants shall not apply.
(iii) Any State standard, requirement, criteria, or limitation
referred to in clause (ii) shall apply where each of the following
conditions is met:
(I) The State standard, requirement, criteria, or limitation is
of general applicability and was adopted by formal means.
(II) The State standard, requirement, criteria, or limitation
was adopted on the basis of hydrologic, geologic, or other relevant
considerations and was not adopted for the purpose of precluding
onsite remedial actions or other land disposal for reasons unrelated
to protection of human health and the environment.
(III) The State arranges for, and assures payment of the
incremental costs of utilizing, a facility for disposition of the
hazardous substances, pollutants, or contaminants concerned.
(iv) Where the remedial action selected by the President does not
conform to a State standard and the State has initiated a law suit
against the Environmental Protection Agency prior to May 1, 1986, to
seek to have the remedial action conform to such standard, the President
shall conform the remedial action to the State standard. The State shall
assure the availability of an offsite facility for such remedial action.
(3) In the case of any removal or remedial action involving the
transfer of any hazardous substance or pollutant or contaminant offsite,
such hazardous substance or pollutant or contaminant shall only be
transferred to a facility which is operating in compliance with section
3004 and 3005 of the Solid Waste Disposal Act [42 U.S.C. 6924, 6925]
(or, where applicable, in compliance with the Toxic Substances Control
Act [15 U.S.C. 2601 et seq.] or other applicable Federal law) and all
applicable State requirements. Such substance or pollutant or
contaminant may be transferred to a land disposal facility only if the
President determines that both of the following requirements are met:
(A) The unit to which the hazardous substance or pollutant or
contaminant is transferred is not releasing any hazardous waste, or
constituent thereof, into the groundwater or surface water or soil.
(B) All such releases from other units at the facility are being
controlled by a corrective action program approved by the
Administrator under subtitle C of the Solid Waste Disposal Act [42
U.S.C. 6921 et seq.].
The President shall notify the owner or operator of such facility of
determinations under this paragraph.
(4) The President may select a remedial action meeting the
requirements of paragraph (1) that does not attain a level or standard
of control at least equivalent to a legally applicable or relevant and
appropriate standard, requirement, criteria, or limitation as required
by paragraph (2) (including subparagraph (B) thereof), if the President
finds that--
(A) the remedial action selected is only part of a total
remedial action that will attain such level or standard of control
when completed;
(B) compliance with such requirement at that facility will
result in greater risk to human health and the environment than
alternative options;
(C) compliance with such requirements is technically
impracticable from an engineering perspective;
(D) the remedial action selected will attain a standard of
performance that is equivalent to that required under the otherwise
applicable standard, requirement, criteria, or limitation, through
use of another method or approach;
(E) with respect to a State standard, requirement, criteria, or
limitation, the State has not consistently applied (or demonstrated
the intention to consistently apply) the standard, requirement,
criteria, or limitation in similar circumstances at other remedial
actions within the State; or
(F) in the case of a remedial action to be undertaken solely
under section 9604 of this title using the Fund, selection of a
remedial action that attains such level or standard of control will
not provide a balance between the need for protection of public
health and welfare and the environment at the facility under
consideration, and the availability of amounts from the Fund to
respond to other sites which present or may present a threat to
public health or welfare or the environment, taking into
consideration the relative immediacy of such threats.
The President shall publish such findings, together with an explanation
and appropriate documentation.
(e) Permits and enforcement
(1) No Federal, State, or local permit shall be required for the
portion of any removal or remedial action conducted entirely onsite,
where such remedial action is selected and carried out in compliance
with this section.
(2) A State may enforce any Federal or State standard, requirement,
criteria, or limitation to which the remedial action is required to
conform under this chapter in the United States district court for the
district in which the facility is located. Any consent decree shall
require the parties to attempt expeditiously to resolve disagreements
concerning implementation of the remedial action informally with the
appropriate Federal and State agencies. Where the parties agree, the
consent decree may provide for administrative enforcement. Each consent
decree shall also contain stipulated penalties for violations of the
decree in an amount not to exceed $25,000 per day, which may be enforced
by either the President or the State. Such stipulated penalties shall
not be construed to impair or affect the authority of the court to order
compliance with the specific terms of any such decree.
(f) State involvement
(1) The President shall promulgate regulations providing for
substantial and meaningful involvement by each State in initiation,
development, and selection of remedial actions to be undertaken in that
State. The regulations, at a minimum, shall include each of the
following:
(A) State involvement in decisions whether to perform a
preliminary assessment and site inspection.
(B) Allocation of responsibility for hazard ranking system
scoring.
(C) State concurrence in deleting sites from the National
Priorities List.
(D) State participation in the long-term planning process for
all remedial sites within the State.
(E) A reasonable opportunity for States to review and comment on
each of the following:
(i) The remedial investigation and feasibility study and all
data and technical documents leading to its issuance.
(ii) The planned remedial action identified in the remedial
investigation and feasibility study.
(iii) The engineering design following selection of the
final remedial action.
(iv) Other technical data and reports relating to
implementation of the remedy.
(v) Any proposed finding or decision by the President to
exercise the authority of subsection (d)(4) of this section.
(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) of this section 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 responsible
parties regarding the scope of any response action at a facility in the
State, and such State may participate in such negotiations and, subject
to paragraph (2), any settlements.
(2)(A) This paragraph shall apply to remedial actions secured under
section 9606 of this title. At least 30 days prior to the entering of
any consent decree, if the President proposes to select a remedial
action that does not attain a legally applicable or relevant and
appropriate standard, requirement, criteria, or limitation, under the
authority of subsection (d)(4) of this section, the President shall
provide an opportunity for the State to concur or not concur in such
selection. If the State concurs, the State may become a signatory to the
consent decree.
(B) If the State does not concur in such selection, and the State
desires to have the remedial action conform to such standard,
requirement, criteria, or limitation, the State shall intervene in the
action under section 9606 of this title before entry of the consent
decree, to seek to have the remedial action so conform. Such
intervention shall be a matter of right. The remedial action shall
conform to such standard, requirement, criteria, or limitation if the
State establishes, on the administrative record, that the finding of the
President was not supported by substantial evidence. If the court
determines that the remedial action shall conform to such standard,
requirement, criteria, or limitation, the remedial action shall be so
modified and the State may become a signatory to the decree. If the
court determines that the remedial action need not conform to such
standard, requirement, criteria, or limitation, and the State pays or
assures the payment of the additional costs attributable to meeting such
standard, requirement, criteria, or limitation, the remedial action
shall be so modified and the State shall become a signatory to the
decree.
(C) The President may conclude settlement negotiations with
potentially responsible parties without State concurrence.
(3)(A) This paragraph shall apply to remedial actions at facilities
owned or operated by a department, agency, or instrumentality of the
United States. At least 30 days prior to the publication of the
President's final remedial action plan, if the President proposes to
select a remedial action that does not attain a legally applicable or
relevant and appropriate standard, requirement, criteria, or limitation,
under the authority of subsection (d)(4) of this section, 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
evidence, the remedial action shall be modified to conform to such
standard, requirement, criteria, or limitation.
(iii) If the State fails to establish that the President's
finding was not supported by substantial evidence and if the State
pays, within 60 days of judgment, the additional costs attributable
to meeting such standard, requirement, criteria, or limitation, the
remedial action shall be selected to meet such standard,
requirement, criteria, or limitation. If the State fails to pay
within 60 days, the remedial action selected by the President shall
proceed through completion.
(C) Nothing in this section precludes, and the court shall not
enjoin, the Federal agency from taking any remedial action unrelated to
or not inconsistent with such standard, requirement, criteria, or
limitation.
(Pub. L. 96-510, title I, Sec. 121, as added Pub. L. 99-499, title I,
Sec. 121(a), Oct. 17, 1986, 100 Stat. 1672.)
References in Text
The Solid Waste Disposal Act, referred to in subsecs. (b)(1)(B) and
(d)(2)(A)(i), (3)(B), is title II of Pub. L. 89-272, Oct. 20, 1965, 79
Stat. 997, as amended generally by Pub. L. 94-580, Sec. 2, Oct. 21,
1976, 90 Stat. 2795, which is classified generally to chapter 82
(Sec. 6901 et seq.) of this title. Subtitle C of the Solid Waste
Disposal Act is classified generally to subchapter III (Sec. 6921 et
seq.) of chapter 82 of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 6901 of this
title and Tables.
The Toxic Substances Control Act, referred to in subsec.
(d)(2)(A)(i), (3), is Pub. L. 94-469, Oct. 11, 1976, 90 Stat. 2003, as
amended, which is classified generally to chapter 53 (Sec. 2601 et seq.)
of Title 15, Commerce and Trade. For complete classification of this Act
to the Code, see Short Title note set out under section 2601 of Title 15
and Tables.
The Safe Drinking Water Act, referred to in subsec. (d)(2)(A), is
Pub. L. 93-523, Dec. 16, 1974, 88 Stat. 1660, as amended, which is
classified principally to subchapter XII (Sec. 300f et seq.) of chapter
6A of this title. For complete classification of this Act to the Code,
see Short Title of 1974 Amendments note set out under section 201 of
this title and Tables.
The Clean Air Act, referred to in subsec. (d)(2)(A)(i), is act July
14, 1955, ch. 360, 69 Stat. 322, as amended, which is classified
generally to chapter 85 (Sec. 7401 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 7401 of this title and Tables.
The Clean Water Act, referred to in subsec. (d)(2)(A)(i), (B)(i), is
act June 30, 1948, ch. 758, as amended generally by Pub. L. 92-500,
Sec. 2, Oct. 18, 1972, 86 Stat. 816, also known as the Federal Water
Pollution Control Act, which is classified generally to chapter 26
(Sec. 1251 et seq.) of Title 33, Navigation and Navigable Waters. For
complete classification of this Act to the Code, see Short Title note
set out under section 1251 of Title 33 and Tables.
The Marine Protection, Research and Sanctuaries Act, referred to in
subsec. (d)(2)(A)(i), probably means the Marine Protection, Research and
Sanctuaries Act of 1972, Pub. L. 92-532, Oct. 23, 1972, 86 Stat. 1052,
as amended, which enacted chapters 32 (Sec. 1431 et seq.) and 32A
(Sec. 1447 et seq.) of Title 16, Conservation, and chapters 27
(Sec. 1401 et seq.) and 41 (Sec. 2801 et seq.) of Title 33. For complete
classification of this Act to the Code, see Short Title note set out
under section 1401 of Title 33 and Tables.
Effective Date
Section 121(b) of Pub. L. 99-499 provided that: ``With respect to
section 121 of CERCLA [this section], as added by this section--
``(1) The requirements of section 121 of CERCLA shall not apply
to any remedial action for which the Record of Decision (hereinafter
in this section referred to as the `ROD') was signed, or the consent
decree was lodged, before date of enactment [Oct. 17, 1986].
``(2) If the ROD was signed, or the consent decree lodged,
within the 30-day period immediately following enactment of the Act
[Oct. 17, 1986], the Administrator shall certify in writing that the
portion of the remedial action covered by the ROD or consent decree
complies to the maximum extent practicable with section 121 of
CERCLA.
Any ROD signed before enactment of this Act [Oct. 17, 1986] and reopened
after enactment of this Act to modify or supplement the selection of
remedy shall be subject to the requirements of section 121 of CERCLA.''
Section Referred to in Other Sections
This section is referred to in sections 9604, 9613, 9617, 9620, 9651
of this title.
[DOCID:usc42-5233] From the U.S. Code Online via GPO Access [wais.access.gpo.gov] [Laws in effect as of January 16, 1996] [Document not affected by Public Laws enacted between January 16, 1996 and May 14, 1998] [CITE: 42USC9621] |
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