§ 9607.
(a)
Covered persons; scope; recoverable costs and damages; interest rate; “comparable maturity” date
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, 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;
(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
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 title 26. 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 s
(b)
Defenses
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—
(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) 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) 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.
(c)
Determination of amounts
(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), 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 9601(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 subchapter.
(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 or vessels subject to the provisions of title 33 or 46, 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 9604 or 9606 of this title, 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 9612(c) of this title. Any moneys received by the United States pursuant to this subsection shall be deposited in the Fund.
(e)
Indemnification, hold harmless, etc., agreements or conveyances; subrogation rights
(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 subchapter, 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.
(k)
Transfer to, and assumption by, Post-Closure Liability Fund of liability of owner or operator of hazardous waste disposal facility in receipt of permit under applicable solid waste disposal law; time, criteria applicable, procedures, etc.; monitoring costs; reports
(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 [
42 U.S.C. 6921 et seq.], shall be transferred to and assumed by the Post-closure Liability Fund established by section 9641
1 of this title when—
(A)
such facility and the owner and operator thereof has complied with the requirements of subtitle C of the Solid Waste Disposal Act [
42 U.S.C. 6921 et seq.] 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 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 [
42 U.S.C. 6926(b)]) 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 9641
1 of this title, 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 9641
1 of this title 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 [
42 U.S.C. 6921 et seq.] for hazardous waste disposal facilities meeting the conditions of paragraph (1) of this subsection.
(4)
(A)
Not later than one year after December 11, 1980, 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 subchapter II 1 of this chapter.
(B)
Not later than eighteen months after December 11, 1980, 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 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 chapter 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 subchapter II 1 of this chapter.
(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 9611 of this title, no liability shall be transferred to or assumed by the Post-Closure Liability Trust Fund established by section 9641
1 of this title 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 close such facilities in a manner which assures protection of human health and the environment.
(C)
Assessments.—
(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 post-closure 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 [
42 U.S.C. 6921 et seq., 6991 et seq.];
(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 previously established by section 9641 1 of this title, 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;
(vi)
insurance provided by the Federal Government;
(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.
(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 chapter 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.
(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 chapter 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.
(4)
Nongovernmental third-party contribution actions
(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 title 26 and exempt from tax under section 501(a) of such title that, during its taxable 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 chapter; 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.
(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.
(C)
Exclusions
The term “municipal solid waste” does not include—
(i)
combustion ash generated by resource recovery facilities or municipal incinerators; or
(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 this section or
section 9613 of this title 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
([Pub. L. 96–510, title I, § 107], Dec. 11, 1980, [94 Stat. 2781]; [Pub. L. 99–499, title I], §§ 107(a)–(d)(2), (e), (f), 127(b), (e), title II, §§ 201, 207(c), Oct. 17, 1986, [100 Stat. 1628–1630], 1692, 1693, 1705; [Pub. L. 99–514, § 2], Oct. 22, 1986, [100 Stat. 2095]; [Pub. L. 103–429, § 7(e)(2)], Oct. 31, 1994, [108 Stat. 4390]; [Pub. L. 104–208, div. A, title II, § 2502(a)], Sept. 30, 1996, [110 Stat. 3009–462]; [Pub. L. 104–287, § 6(j)(2)], Oct. 11, 1996, [110 Stat. 3400]; [Pub. L. 107–118, title I, § 102(a)], title II, §§ 221, 222(b), Jan. 11, 2002, [115 Stat. 2356], 2368, 2371; [Pub. L. 115–141, div. N, § 5(b)], Mar. 23, 2018, [132 Stat. 1054].)