42 U.S.C. § 9613 : US Code - Section 9613: Civil proceedings

Search 42 U.S.C. § 9613 : US Code - Section 9613: Civil proceedings

(a) Review of regulations in Circuit Court of Appeals of the United
States for the District of Columbia
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) Jurisdiction; venue
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) Controversies or other matters resulting from tax collection or
tax regulation review
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
(!1) of this chapter, or to the review of any regulation
promulgated under title 26.
(d) Litigation commenced prior to December 11, 1980
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) Nationwide service of process
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) Contribution
(1) Contribution
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) Settlement
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) Persons not party to settlement
(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) Period in which action may be brought
(1) Actions for natural resource damages
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.
With respect to any facility listed on the National Priorities
List (NPL), any Federal facility identified under section 9620 of
this title (relating to Federal facilities), or any vessel or
facility at which a remedial action under this chapter is
otherwise scheduled, an action for damages under this chapter
must be commenced within 3 years after the completion of the
remedial action (excluding operation and maintenance activities)
in lieu of the dates referred to in subparagraph (A) or (B). In
no event may an action for damages under this chapter with
respect to such a vessel or facility be commenced (i) prior to 60
days after the Federal or State natural resource trustee provides
to the President and the potentially responsible party a notice
of intent to file suit, or (ii) before selection of the remedial
action if the President is diligently proceeding with a remedial
investigation and feasibility study under section 9604(b) of this
title or section 9620 of this title (relating to Federal
facilities). The limitation in the preceding sentence on
commencing an action before giving notice or before selection of
the remedial action does not apply to actions filed on or before
October 17, 1986.
(2) Actions for recovery of costs
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.
In any such action described in this subsection, the court shall
enter a declaratory judgment on liability for response costs or
damages that will be binding on any subsequent action or actions
to recover further response costs or damages. A subsequent action
or actions under section 9607 of this title for further response
costs at the vessel or facility may be maintained at any time
during the response action, but must be commenced no later than 3
years after the date of completion of all response action. Except
as otherwise provided in this paragraph, an action may be
commenced under section 9607 of this title for recovery of costs
at any time after such costs have been incurred.
(3) Contribution
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) Subrogation
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) Actions to recover indemnification payments
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) Minors and incompetents
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) Timing of review
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) Intervention
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) Judicial review
(1) Limitation
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) Standard
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) Remedy
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) Procedural errors
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) Administrative record and participation procedures
(1) Administrative record
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) Participation procedures
(A) Removal action
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) Remedial action
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.
For purposes of this subparagraph, the administrative record
shall include all items developed and received under this
subparagraph and all items described in the second sentence of
section 9617(d) of this title. The President shall promulgate
regulations in accordance with chapter 5 of title 5 to carry
out the requirements of this subparagraph.
(C) Interim record
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) Potentially responsible parties
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) Notice of actions
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.