42 USC 9622 - Settlements

U.S Code last checked for updates: Nov 22, 2024

§ 9622.

Settlements

(a)

Authority to enter into agreements

(b)

Agreements with potentially responsible parties

(1)

Mixed funding

(2)

Reviewability

(3)

Retention of funds

(4)

Future obligation of Fund

(c)

Effect of agreement

(1)

Liability

(2)

Actions against other persons

If an agreement has been entered into under this section, the President may take any action under section 9606 of this title against any person who is not a party to the agreement, once the period for submitting a proposal under subsection (e)(2)(B) has expired. Nothing in this section shall be construed to affect either of the following:

(A)

The liability of any person under section 9606 or 9607 of this title with respect to any costs or damages which are not included in the agreement.

(B)

The authority of the President to maintain an action under this chapter against any person who is not a party to the agreement.

(d)

Enforcement

(1)

Cleanup agreements

(A)

Consent decree

(B)

Effect

(C)

Structure

(2)

Public participation

(A)

Filing of proposed judgment

(B)

Opportunity for comment

(3)

9604(b) agreements

(e)

Special notice procedures

(1)

Notice

Whenever the President determines that a period of negotiation under this subsection would facilitate an agreement with potentially responsible parties for taking response action (including any action described in section 9604(b) of this title) and would expedite remedial action, the President shall so notify all such parties and shall provide them with information concerning each of the following:

(A)

The names and addresses of potentially responsible parties (including owners and operators and other persons referred to in section 9607(a) of this title), to the extent such information is available.

(B)

To the extent such information is available, the volume and nature of substances contributed by each potentially responsible party identified at the facility.

(C)

A ranking by volume of the substances at the facility, to the extent such information is available.

The President shall make the information referred to in this paragraph available in advance of notice under this paragraph upon the request of a potentially responsible party in accordance with procedures provided by the President. The provisions of subsection (e) of section 9604 of this title regarding protection of confidential information apply to information provided under this paragraph. Disclosure of information generated by the President under this section to persons other than the Congress, or any duly authorized Committee thereof, is subject to other privileges or protections provided by law, including (but not limited to) those applicable to attorney work product. Nothing contained in this paragraph or in other provisions of this chapter shall be construed, interpreted, or applied to diminish the required disclosure of information under other provisions of this or other Federal or State laws.

(2)

Negotiation

(A)

Moratorium

(B)

Proposals

(C)

Additional parties

(3)

Preliminary allocation of responsibility

(A)

In general

(B)

Collection of information

(C)

Effect

(D)

Costs

(E)

Decision to reject offer

(4)

Failure to propose

(5)

Significant threats

(6)

Inconsistent response action

(f)

Covenant not to sue

(1)

Discretionary covenants

The President may, in his discretion, provide any person with a covenant not to sue concerning any liability to the United States under this chapter, including future liability, resulting from a release or threatened release of a hazardous substance addressed by a remedial action, whether that action is onsite or offsite, if each of the following conditions is met:

(A)

The covenant not to sue is in the public interest.

(B)

The covenant not to sue would expedite response action consistent with the National Contingency Plan under section 9605 of this title.

(C)

The person is in full compliance with a consent decree under section 9606 of this title (including a consent decree entered into in accordance with this section) for response to the release or threatened release concerned.

(D)

The response action has been approved by the President.

(2)

Special covenants not to sue

In the case of any person to whom the President is authorized under paragraph (1) of this subsection to provide a covenant not to sue, for the portion of remedial action—

(A)

which involves the transport and secure disposition offsite of hazardous substances in a facility meeting the requirements of sections 6924(c), (d), (e), (f), (g), (m), (o), (p), (u), and (v) and 6925(c) of this title, where the President has rejected a proposed remedial action that is consistent with the National Contingency Plan that does not include such offsite disposition and has thereafter required offsite disposition; or

(B)

which involves the treatment of hazardous substances so as to destroy, eliminate, or permanently immobilize the hazardous constituents of such substances, such that, in the judgment of the President, the substances no longer present any current or currently foreseeable future significant risk to public health, welfare or the environment, no byproduct of the treatment or destruction process presents any significant hazard to public health, welfare or the environment, and all byproducts are themselves treated, destroyed, or contained in a manner which assures that such byproducts do not present any current or currently foreseeable future significant risk to public health, welfare or the environment,

the President shall provide such person with a covenant not to sue with respect to future liability to the United States under this chapter for a future release or threatened release of hazardous substances from such facility, and a person provided such covenant not to sue shall not be liable to the United States under section 9606 or 9607 of this title with respect to such release or threatened release at a future time.

(3)

Requirement that remedial action be completed

(4)

Factors

In assessing the appropriateness of a covenant not to sue under paragraph (1) and any condition to be included in a covenant not to sue under paragraph (1) or (2), the President shall consider whether the covenant or condition is in the public interest on the basis of such factors as the following:

(A)

The effectiveness and reliability of the remedy, in light of the other alternative remedies considered for the facility concerned.

(B)

The nature of the risks remaining at the facility.

(C)

The extent to which performance standards are included in the order or decree.

(D)

The extent to which the response action provides a complete remedy for the facility, including a reduction in the hazardous nature of the substances at the facility.

(E)

The extent to which the technology used in the response action is demonstrated to be effective.

(F)

Whether the Fund or other sources of funding would be available for any additional remedial actions that might eventually be necessary at the facility.

(G)

Whether the remedial action will be carried out, in whole or in significant part, by the responsible parties themselves.

(5)

Satisfactory performance

(6)

Additional condition for future liability

(A)

Except for the portion of the remedial action which is subject to a covenant not to sue under paragraph (2) or under subsection (g) (relating to de minimis settlements), a covenant not to sue a person concerning future liability to the United States shall include an exception to the covenant that allows the President to sue such person concerning future liability resulting from the release or threatened release that is the subject of the covenant where such liability arises out of conditions which are unknown at the time the President certifies under paragraph (3) that remedial action has been completed at the facility concerned.

(B)

In extraordinary circumstances, the President may determine, after assessment of relevant factors such as those referred to in paragraph (4) and volume, toxicity, mobility, strength of evidence, ability to pay, litigative risks, public interest considerations, precedential value, and inequities and aggravating factors, not to include the exception referred to in subparagraph (A) if other terms, conditions, or requirements of the agreement containing the cove

nant not to sue are sufficient to provide all reasonable assurances that public health and the environment will be protected from any future releases at or from the facility.

(C)

The President is authorized to include any provisions allowing future enforcement action under section 9606 or 9607 of this title that in the discretion of the President are necessary and appropriate to assure protection of public health, welfare, and the environment.

(g)

De minimis settlements

(1)

Expedited final settlement

Whenever practicable and in the public interest, as determined by the President, the President shall as promptly as possible reach a final settlement with a potentially responsible party in an administrative or civil action under section 9606 or 9607 of this title if such settlement involves only a minor portion of the response costs at the facility concerned and, in the judgment of the President, the conditions in either of the following subparagraph (A) or (B) are met:

(A)

Both of the following are minimal in comparison to other hazardous substances at the facility:

(i)

The amount of the hazardous substances contributed by that party to the facility.

(ii)

The toxic or other hazardous effects of the substances contributed by that party to the facility.

(B)

The potentially responsible party—

(i)

is the owner of the real property on or in which the facility is located;

(ii)

did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at the facility; and

(iii)

did not contribute to the release or threat of release of a hazardous substance at the facility through any action or omission.

This subparagraph (B) does not apply if the potentially responsible party purchased the real property with actual or constructive knowledge that the property was used for the generation, transportation, storage, treatment, or disposal of any hazardous substance.

(2)

Covenant not to sue

(3)

Expedited agreement

(4)

Consent decree or administrative order

(5)

Effect of agreement

(6)

Settlements with other potentially responsible parties

(7)

Reduction in settlement amount based on limited ability to pay

(A)

In general

(B)

Considerations

(C)

Information

(D)

Alternative payment methods

(8)

Additional conditions for expedited settlements

(A)

Waiver of claims

(B)

Failure to comply

(C)

Responsibility to provide information and access

(9)

Basis of determination

(10)

Notification

(11)

No judicial review

(12)

Notice of settlement

(h)

Cost recovery settlement authority

(1)

Authority to settle

(2)

Use of arbitration

(3)

Recovery of claims

(4)

Claims for contribution

(i)

Settlement procedures

(1)

Publication in Federal Register

(2)

Comment period

(3)

Consideration of comments

(j)

Natural resources

(1)

Notification of trustee

(2)

Covenant not to sue

(k)

Section not applicable to vessels

(l)

Civil penalties

(m)

Applicability of general principles of law

(Pub. L. 96–510, title I, § 122, as added Pub. L. 99–499, title I, § 122(a), Oct. 17, 1986, 100 Stat. 1678; amended Pub. L. 107–118, title I, § 102(b), Jan. 11, 2002, 115 Stat. 2359.)

cite as: 42 USC 9622

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