§ 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 subsection commences.
(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.
(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].)