§9613 — Title 42 The Public Health and Welfare | U.S. Code

Summary

You can ask the U.S. Court of Appeals for the District of Columbia to review rules made under this law, but you must ask within 90 days after the rule is issued. If you could have used that review, you can’t later ask a court in an enforcement case or in a lawsuit for money or cleanup costs to re-decide the same matter. Except for that rule-review and the limits described below, U.S. district courts are the main courts for cases under this law. Cases can be filed where the spill or harm happened, or where the defendant lives or has an office. The Fund is treated as living in the District of Columbia. The law’s special rules do not affect tax collection disputes under the tax subchapter or review of tax regulations. Nothing in the law cancels lawsuits started before December 11, 1980. When the United States sues, it can serve court papers where a defendant is found, lives, does business, or has an agent. Anyone can ask others who are or might be responsible to share cleanup costs during or after certain civil actions. These claims follow federal rules, and the court can divide costs fairly. If a person settled with the United States or a State in an approved way, they are protected from contribution claims about what the settlement covered, and their settlement amount lowers others’ liability. Time limits apply: most damage suits must start within 3 years after discovery of the loss or after certain regulations are issued; cost-recovery suits have 3- or 6-year limits depending on the type of action; contribution suits mostly must start within 3 years after judgment, an administrative order, or a court-approved settlement; subrogation suits must start within 3 years after payment; and for indemnity payments under section 9619, recovery suits must start before 3 years after payment. Time limits don’t run against minors until they turn 18 or a legal representative is appointed, or against incompetent persons until incompetency ends or a legal representative is appointed. Federal courts generally cannot review challenges to cleanup choices made under the law, except for specific actions such as cost recovery or enforcement suits, certain citizen suits, and related claims. People with a legal interest may intervene in cases if the outcome could hurt their interest, unless the President or State already represents them. The President must create an administrative record for cleanup choices, make it available to the public near the site, and provide notice, chances to comment, public meetings, answers to major comments, and a statement of the reasons for the chosen action. Anyone other than the United States who sues must give a copy of the complaint to the U.S. Attorney General and the EPA Administrator.

Title 42, §9613

The Public Health and Welfare — Source: USLM XML via OLRC

(a)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 promulgation of such regulations. Any matter with respect to which review could have been obtained under this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement or to obtain damages or recovery of response costs.

(b)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 occurred, or in which the defendant resides, may be found, or has his principal office. For the purposes of this section, the Fund shall reside in the District of Columbia.

(c)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 subchapter II 11 See References in Text note below. of this chapter, or to the review of any regulation promulgated under title 26.

(d)No provision of this chapter shall be deemed or held to moot any litigation concerning any release of any hazardous substance, or any damages associated therewith, commenced prior to December 11, 1980.

(e)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 service of process.

(f)(1)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 Federal law. In resolving contribution claims, the court may allocate response costs among liable 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)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 settlement 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)(A)If the United States or a State has obtained less than complete relief from a person who has resolved its liability to the United States or the State in an administrative or judicially 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 contribution 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 liability to the United States or a State shall be subordinate to the rights of the United States or the State. Any contribution action brought under this paragraph shall be governed by Federal law.

(g)(1)Except as provided in paragraphs (3) and (4), no action may be commenced for damages (as defined in section 9601(6) of this title) under this chapter, unless that action is commenced 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 question.

(B)The date on which regulations are promulgated under section 9651(c) of this title.

(2)An initial action for recovery of the costs referred to in section 9607 of this title must be commenced—

(A)for a removal action, within 3 years after completion of the removal action, except that such cost recovery action must be brought within 6 years after a determination to grant a waiver under section 9604(c)(1)(C) of this title for continued response action; and

(B)for a remedial action, within 6 years after initiation of physical on-site construction of the remedial action, except that, if the remedial action is initiated within 3 years after the completion of the removal action, costs incurred in the removal action may be recovered in the cost recovery action brought under this subparagraph.

(3)No action for contribution for any response costs or damages may be commenced more than 3 years after—

(A)the date of judgment in any action under this chapter for recovery of such costs or damages, or

(B)the date of an administrative order under section 9622(g) of this title (relating to de minimis settlements) or 9622(h) of this title (relating to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or damages.

(4)No action based on rights subrogated pursuant to this section by reason of payment of a claim may be commenced under this subchapter more than 3 years after the date of payment of such claim.

(5)Notwithstanding any other provision of this subsection, where a payment pursuant to an indemnification agreement with a response action contractor is made under section 9619 of this title, an action under section 9607 of this title for recovery of such indemnification payment from a potentially responsible party may be brought at any time before the expiration of 3 years from the date on which such payment is made.

(6)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 such minor, or

(B)against an incompetent person until the earlier of the date on which such incompetent’s incompetency ends or the date on which a legal representative is duly appointed for such incompetent.

(h)No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following:

(1)An action under section 9607 of this title to recover response costs or damages or for contribution.

(2)An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order.

(3)An action for reimbursement under section 9606(b)(2) of this title.

(4)An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.

(5)An action under section 9606 of this title in which the United States has moved to compel a remedial action.

(i)In any action commenced under this chapter or under the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] in a court of the United States, any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situated that the disposition of the action may, as a practical matter, impair or impede the person’s ability to protect that interest, unless the President or the State shows that the person’s interest is adequately represented by existing parties.

(j)(1)In any judicial action under this chapter, judicial review of any issues concerning the adequacy of any response action taken or ordered by the President shall be limited to the administrative record. Otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court.

(2)In considering objections raised in any judicial action under this chapter, the court shall uphold the President’s decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law.

(3)If the court finds that the selection of the response action was arbitrary and capricious or otherwise not in accordance with law, the court shall award (A) only the response costs or damages that are not inconsistent with the national contingency plan, and (B) such other relief as is consistent with the National Contingency Plan.

(4)In reviewing alleged procedural errors, the court may disallow costs or damages only if the errors were so serious and related to matters of such central relevance to the action that the action would have been significantly changed had such errors not been made.

(k)(1)The President shall establish an administrative record upon which the President shall base the selection of a response action. The administrative record shall be available to the public at or near the facility at issue. The President also may place duplicates of the administrative record at any other location.

(2)(A)The President shall promulgate regulations in accordance with chapter 5 of title 5 establishing procedures for the appropriate participation of interested persons in the development of the administrative record on which the President will base the selection of removal actions and on which judicial review of removal actions will be based.

(B)The President shall provide for the participation of interested persons, including potentially responsible parties, in the development of the administrative record on which the President will base the selection of remedial actions and on which judicial review of remedial actions will be based. The procedures developed under this subparagraph shall include, at a minimum, each of the following:

(i)Notice to potentially affected persons and the public, which shall be accompanied by a brief analysis of the plan and alternative plans that were considered.

(ii)A reasonable opportunity to comment and provide information regarding the plan.

(iii)An opportunity for a public meeting in the affected area, in accordance with section 9617(a)(2) of this title (relating to public participation).

(iv)A response to each of the significant comments, criticisms, and new data submitted in written or oral presentations.

(v)A statement of the basis and purpose of the selected action.

(C)Until such regulations under subparagraphs (A) and (B) are promulgated, the administrative record shall consist of all items developed and received pursuant to current procedures for selection of the response action, including procedures for the participation of interested parties and the public. The development of an administrative record and the selection of response action under this chapter shall not include an adjudicatory hearing.

(D)The President shall make reasonable efforts to identify and notify potentially responsible parties as early as possible before selection of a response action. Nothing in this paragraph shall be construed to be a defense to liability.

(l)Whenever any action is brought under this chapter in a court of the United States by a plaintiff other than the United States, the plaintiff shall provide a copy of the complaint to the Attorney General of the United States and to the Administrator of the Environmental Protection Agency.

Notes & Related Subsidiaries

Editorial Notes

References in Text

This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental 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. Subchapter II of this chapter, referred to in subsec. (c), was in the original “title II of this Act”, meaning title II of Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2796, known as the Hazardous Substance Response Revenue Act of 1980, which enacted subchapter II of this chapter and section 4611, 4612, 4661, 4662, 4681, and 4682 of Title 26, Internal Revenue Code. Sections 221 to 223 and 232 of Pub. L. 96–510, which were classified to sections 9631 to 9633 and 9641 of this title, comprising subchapter II of this chapter, were repealed by Pub. L. 99–499, title V, §§ 514(b), 517(c)(1), Oct. 17, 1986, 100 Stat. 1767, 1774. For complete classification of title II to the Code, see

Short Title

of 1980 Amendment note set out under section 1 of Title 26 and Tables. The Federal Rules of Civil Procedure, referred to in subsec. (f)(1), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. The Solid Waste Disposal Act, referred to in subsec. (i), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2795, which is classified generally to chapter 82 (§ 6901 et seq.) 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.

Amendments

1986—Subsec. (b). Pub. L. 99–499, § 113(c)(1), substituted “subsections (a) and (h)” for “subsection (a)”. Subsec. (c). Pub. L. 99–514 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”, which for purposes of codification was translated as “title 26” thus requiring no change in text. Subsecs. (e) to (l). Pub. L. 99–499, § 113(a), (b), (c)(2), added subsecs. (e) to (l).

§9613 Civil proceedings

Summary

Title 42, §9613

Notes & Related Subsidiaries

Editorial Notes

References in Text

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Amendments

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