42 U.S.C. § 9619 : US Code - Section 9619: Response action contractors

Search 42 U.S.C. § 9619 : US Code - Section 9619: Response action contractors

(a) Liability of response action contractors
(1) Response action contractors
A person who is a response action contractor with respect to
any release or threatened release of a hazardous substance or
pollutant or contaminant from a vessel or facility shall not be
liable under this subchapter or under any other Federal law to
any person for injuries, costs, damages, expenses, or other
liability (including but not limited to claims for
indemnification or contribution and claims by third parties for
death, personal injury, illness or loss of or damage to property
or economic loss) which results from such release or threatened
release.
(2) Negligence, etc.
Paragraph (1) shall not apply in the case of a release that is
caused by conduct of the response action contractor which is
negligent, grossly negligent, or which constitutes intentional
misconduct.
(3) Effect on warranties; employer liability
Nothing in this subsection shall affect the liability of any
person under any warranty under Federal, State, or common law.
Nothing in this subsection shall affect the liability of an
employer who is a response action contractor to any employee of
such employer under any provision of law, including any provision
of any law relating to worker's compensation.
(4) Governmental employees
A state employee or an employee of a political subdivision who
provides services relating to response action while acting within
the scope of his authority as a governmental employee shall have
the same exemption from liability (subject to the other
provisions of this section) as is provided to the response action
contractor under this section.
(b) Savings provisions
(1) Liability of other persons
The defense provided by section 9607(b)(3) of this title shall
not be available to any potentially responsible party with
respect to any costs or damages caused by any act or omission of
a response action contractor. Except as provided in subsection
(a)(4) of this section and the preceding sentence, nothing in
this section shall affect the liability under this chapter or
under any other Federal or State law of any person, other than a
response action contractor.
(2) Burden of plaintiff
Nothing in this section shall affect the plaintiff's burden of
establishing liability under this subchapter.
(c) Indemnification
(1) In general
The President may agree to hold harmless and indemnify any
response action contractor meeting the requirements of this
subsection against any liability (including the expenses of
litigation or settlement) for negligence arising out of the
contractor's performance in carrying out response action
activities under this subchapter, unless such liability was
caused by conduct of the contractor which was grossly negligent
or which constituted intentional misconduct.
(2) Applicability
This subsection shall apply only with respect to a response
action carried out under written agreement with -
(A) the President;
(B) any Federal agency;
(C) a State or political subdivision which has entered into a
contract or cooperative agreement in accordance with section
9604(d)(1) of this title; or
(D) any potentially responsible party carrying out any
agreement under section 9622 of this title (relating to
settlements) or section 9606 of this title (relating to
abatement).
(3) Source of funding
This subsection shall not be subject to section 1301 or 1341 of
title 31 or section 11 of title 41 or to section 9662 of this
title. For purposes of section 9611 of this title, amounts
expended pursuant to this subsection for indemnification of any
response action contractor (except with respect to federally
owned or operated facilities) shall be considered governmental
response costs incurred pursuant to section 9604 of this title.
If sufficient funds are unavailable in the Hazardous Substance
Superfund established under subchapter A of chapter 98 of title
26 to make payments pursuant to such indemnification or if the
Fund is repealed, there are authorized to be appropriated such
amounts as may be necessary to make such payments.
(4) Requirements
An indemnification agreement may be provided under this
subsection only if the President determines that each of the
following requirements are met:
(A) The liability covered by the indemnification agreement
exceeds or is not covered by insurance available, at a fair and
reasonable price, to the contractor at the time the contractor
enters into the contract to provide response action, and
adequate insurance to cover such liability is not generally
available at the time the response action contract is entered
into.
(B) The response action contractor has made diligent efforts
to obtain insurance coverage from non-Federal sources to cover
such liability.
(C) In the case of a response action contract covering more
than one facility, the response action contractor agrees to
continue to make such diligent efforts each time the contractor
begins work under the contract at a new facility.
(5) Limitations
(A) Liability covered
Indemnification under this subsection shall apply only to
response action contractor liability which results from a
release of any hazardous substance or pollutant or contaminant
if such release arises out of response action activities.
(B) Deductibles and limits
An indemnification agreement under this subsection shall
include deductibles and shall place limits on the amount of
indemnification to be made available.
(C) Contracts with potentially responsible parties
(i) Decision to indemnify
In deciding whether to enter into an indemnification
agreement with a response action contractor carrying out a
written contract or agreement with any potentially
responsible party, the President shall determine an amount
which the potentially responsible party is able to indemnify
the contractor. The President may enter into such an
indemnification agreement only if the President determines
that such amount of indemnification is inadequate to cover
any reasonable potential liability of the contractor arising
out of the contractor's negligence in performing the contract
or agreement with such party. The President shall make the
determinations in the preceding sentences (with respect to
the amount and the adequacy of the amount) taking into
account the total net assets and resources of potentially
responsible parties with respect to the facility at the time
of such determinations.
(ii) Conditions
The President may pay a claim under an indemnification
agreement referred to in clause (i) for the amount determined
under clause (i) only if the contractor has exhausted all
administrative, judicial, and common law claims for
indemnification against all potentially responsible parties
participating in the clean-up of the facility with respect to
the liability of the contractor arising out of the
contractor's negligence in performing the contract or
agreement with such party. Such indemnification agreement
shall require such contractor to pay any deductible
established under subparagraph (B) before the contractor may
recover any amount from the potentially responsible party or
under the indemnification agreement.
(D) RCRA facilities
No owner or operator of a facility regulated under the Solid
Waste Disposal Act [42 U.S.C. 6901 et seq.] may be indemnified
under this subsection with respect to such facility.
(E) Persons retained or hired
A person retained or hired by a person described in
subsection (e)(2)(B) of this section shall be eligible for
indemnification under this subsection only if the President
specifically approves of the retaining or hiring of such
person.
(6) Cost recovery
For purposes of section 9607 of this title, amounts expended
pursuant to this subsection for indemnification of any person who
is a response action contractor with respect to any release or
threatened release shall be considered a cost of response
incurred by the United States Government with respect to such
release.
(7) Regulations
The President shall promulgate regulations for carrying out the
provisions of this subsection. Before promulgation of the
regulations, the President shall develop guidelines to carry out
this section. Development of such guidelines shall include
reasonable opportunity for public comment.
(8) Study
The Comptroller General shall conduct a study in the fiscal
year ending September 30, 1989, on the application of this
subsection, including whether indemnification agreements under
this subsection are being used, the number of claims that have
been filed under such agreements, and the need for this
subsection. The Comptroller General shall report the findings of
the study to Congress no later than September 30, 1989.
(d) Exception
The exemption provided under subsection (a) of this section and
the authority of the President to offer indemnification under
subsection (c) of this section shall not apply to any person
covered by the provisions of paragraph (1), (2), (3), or (4) of
section 9607(a) of this title with respect to the release or
threatened release concerned if such person would be covered by
such provisions even if such person had not carried out any actions
referred to in subsection (e) of this section.
(e) Definitions
For purposes of this section -
(1) Response action contract
The term "response action contract" means any written contract
or agreement entered into by a response action contractor (as
defined in paragraph (2)(A) of this subsection) with -
(A) the President;
(B) any Federal agency;
(C) a State or political subdivision which has entered into a
contract or cooperative agreement in accordance with section
9604(d)(1) of this title; or
(D) any potentially responsible party carrying out an
agreement under section 9606 or 9622 of this title;
to provide any remedial action under this chapter at a facility
listed on the National Priorities List, or any removal under this
chapter, with respect to any release or threatened release of a
hazardous substance or pollutant or contaminant from the facility
or to provide any evaluation, planning, engineering, surveying
and mapping, design, construction, equipment, or any ancillary
services thereto for such facility.
(2) Response action contractor
The term "response action contractor" means -
(A) any -
(i) person who enters into a response action contract with
respect to any release or threatened release of a hazardous
substance or pollutant or contaminant from a facility and is
carrying out such contract; and (!1)
(ii) person, public or nonprofit private entity, conducting
a field demonstration pursuant to section 9660(b) of this
title; and
(iii) Recipients (!2) of grants (including sub-grantees)
under section 9660a (!3) of this title for the training and
education of workers who are or may be engaged in activities
related to hazardous waste removal, containment, or emergency
response under this chapter; and (!1)
(B) any person who is retained or hired by a person described
in subparagraph (A) to provide any services relating to a
response action; and
(C) any surety who after October 16, 1990, provides a bid,
performance or payment bond to a response action contractor,
and begins activities to meet its obligations under such bond,
but only in connection with such activities or obligations.
(3) Insurance
The term "insurance" means liability insurance which is fair
and reasonably priced, as determined by the President, and which
is made available at the time the contractor enters into the
response action contract to provide response action.
(f) Competition
Response action contractors and subcontractors for program
management, construction management, architectural and engineering,
surveying and mapping, and related services shall be selected in
accordance with title IX of the Federal Property and Administrative
Services Act of 1949.(!3) The Federal selection procedures shall
apply to appropriate contracts negotiated by all Federal
governmental agencies involved in carrying out this chapter. Such
procedures shall be followed by response action contractors and
subcontractors.
(g) Surety bonds
(1) If under sections 3131 and 3133 of title 40, surety bonds are
required for any direct Federal procurement of any response action
contract and are not waived pursuant to section 3134 of title 40,
they shall be issued in accordance with sections 3131 and 3133 of
title 40.
(2) If under applicable Federal law surety bonds are required for
any direct Federal procurement of any response action contract, no
right of action shall accrue on the performance bond issued on such
response action contract to or for the use of any person other than
the obligee named in the bond.
(3) If under applicable Federal law surety bonds are required for
any direct Federal procurement of any response action contract,
unless otherwise provided for by the procuring agency in the bond,
in the event of a default, the surety's liability on a performance
bond shall be only for the cost of completion of the contract work
in accordance with the plans and specifications less the balance of
funds remaining to be paid under the contract, up to the penal sum
of the bond. The surety shall in no event be liable on bonds to
indemnify or compensate the obligee for loss or liability arising
from personal injury or property damage whether or not caused by a
breach of the bonded contract.
(4) Nothing in this subsection shall be construed as preempting,
limiting, superseding, affecting, applying to, or modifying any
State laws, regulations, requirements, rules, practices or
procedures. Nothing in this subsection shall be construed as
affecting, applying to, modifying, limiting, superseding, or
preempting any rights, authorities, liabilities, demands, actions,
causes of action, losses, judgments, claims, statutes of
limitation, or obligations under Federal or State law, which do not
arise on or under the bond.
(5) This subsection shall not apply to bonds executed before
October 17, 1990.