42 U.S.C. § 9621 : US Code - Section 9621: Cleanup standards

Search 42 U.S.C. § 9621 : US Code - Section 9621: Cleanup standards

(a) Selection of remedial action
The President shall select appropriate remedial actions
determined to be necessary to be carried out under section 9604 of
this title or secured under section 9606 of this title which are in
accordance with this section and, to the extent practicable, the
national contingency plan, and which provide for cost-effective
response. In evaluating the cost effectiveness of proposed
alternative remedial actions, the President shall take into account
the total short- and long-term costs of such actions, including the
costs of operation and maintenance for the entire period during
which such activities will be required.
(b) General rules
(1) Remedial actions in which treatment which permanently and
significantly reduces the volume, toxicity or mobility of the
hazardous substances, pollutants, and contaminants is a principal
element, are to be preferred over remedial actions not involving
such treatment. The offsite transport and disposal of hazardous
substances or contaminated materials without such treatment should
be the least favored alternative remedial action where practicable
treatment technologies are available. The President shall conduct
an assessment of permanent solutions and alternative treatment
technologies or resource recovery technologies that, in whole or in
part, will result in a permanent and significant decrease in the
toxicity, mobility, or volume of the hazardous substance,
pollutant, or contaminant. In making such assessment, the President
shall specifically address the long-term effectiveness of various
alternatives. In assessing alternative remedial actions, the
President shall, at a minimum, take into account:
(A) the long-term uncertainties associated with land disposal;
(B) the goals, objectives, and requirements of the Solid Waste
Disposal Act [42 U.S.C. 6901 et seq.];
(C) the persistence, toxicity, mobility, and propensity to
bioaccumulate of such hazardous substances and their
constituents;
(D) short- and long-term potential for adverse health effects
from human exposure;
(E) long-term maintenance costs;
(F) the potential for future remedial action costs if the
alternative remedial action in question were to fail; and
(G) the potential threat to human health and the environment
associated with excavation, transportation, and redisposal, or
containment.
The President shall select a remedial action that is protective of
human health and the environment, that is cost effective, and that
utilizes permanent solutions and alternative treatment technologies
or resource recovery technologies to the maximum extent
practicable. If the President selects a remedial action not
appropriate for a preference under this subsection, the President
shall publish an explanation as to why a remedial action involving
such reductions was not selected.
(2) The President may select an alternative remedial action
meeting the objectives of this subsection whether or not such
action has been achieved in practice at any other facility or site
that has similar characteristics. In making such a selection, the
President may take into account the degree of support for such
remedial action by parties interested in such site.
(c) Review
If the President selects a remedial action that results in any
hazardous substances, pollutants, or contaminants remaining at the
site, the President shall review such remedial action no less often
than each 5 years after the initiation of such remedial action to
assure that human health and the environment are being protected by
the remedial action being implemented. In addition, if upon such
review it is the judgment of the President that action is
appropriate at such site in accordance with section 9604 or 9606 of
this title, the President shall take or require such action. The
President shall report to the Congress a list of facilities for
which such review is required, the results of all such reviews, and
any actions taken as a result of such reviews.
(d) Degree of cleanup
(1) Remedial actions selected under this section or otherwise
required or agreed to by the President under this chapter shall
attain a degree of cleanup of hazardous substances, pollutants, and
contaminants released into the environment and of control of
further release at a minimum which assures protection of human
health and the environment. Such remedial actions shall be relevant
and appropriate under the circumstances presented by the release or
threatened release of such substance, pollutant, or contaminant.
(2)(A) With respect to any hazardous substance, pollutant or
contaminant that will remain onsite, if -
(i) any standard, requirement, criteria, or limitation under
any Federal environmental law, including, but not limited to, the
Toxic Substances Control Act [15 U.S.C. 2601 et seq.], the Safe
Drinking Water Act [42 U.S.C. 300f et seq.], the Clean Air Act
[42 U.S.C. 7401 et seq.], the Clean Water Act [33 U.S.C. 1251 et
seq.], the Marine Protection, Research and Sanctuaries Act [16
U.S.C. 1431 et seq., 1447 et seq., 33 U.S.C. 1401 et seq., 2801
et seq.], or the Solid Waste Disposal Act [42 U.S.C. 6901 et
seq.]; or
(ii) any promulgated standard, requirement, criteria, or
limitation under a State environmental or facility siting law
that is more stringent than any Federal standard, requirement,
criteria, or limitation, including each such State standard,
requirement, criteria, or limitation contained in a program
approved, authorized or delegated by the Administrator under a
statute cited in subparagraph (A), and that has been identified
to the President by the State in a timely manner,
is legally applicable to the hazardous substance or pollutant or
contaminant concerned or is relevant and appropriate under the
circumstances of the release or threatened release of such
hazardous substance or pollutant or contaminant, the remedial
action selected under section 9604 of this title or secured under
section 9606 of this title shall require, at the completion of the
remedial action, a level or standard of control for such hazardous
substance or pollutant or contaminant which at least attains such
legally applicable or relevant and appropriate standard,
requirement, criteria, or limitation. Such remedial action shall
require a level or standard of control which at least attains
Maximum Contaminant Level Goals established under the Safe Drinking
Water Act [42 U.S.C. 300f et seq.] and water quality criteria
established under section 304 or 303 of the Clean Water Act [33
U.S.C. 1314, 1313], where such goals or criteria are relevant and
appropriate under the circumstances of the release or threatened
release.
(B)(i) In determining whether or not any water quality criteria
under the Clean Water Act [33 U.S.C. 1251 et seq.] is relevant and
appropriate under the circumstances of the release or threatened
release, the President shall consider the designated or potential
use of the surface or groundwater, the environmental media
affected, the purposes for which such criteria were developed, and
the latest information available.
(ii) For the purposes of this section, a process for establishing
alternate concentration limits to those otherwise applicable for
hazardous constituents in groundwater under subparagraph (A) may
not be used to establish applicable standards under this paragraph
if the process assumes a point of human exposure beyond the
boundary of the facility, as defined at the conclusion of the
remedial investigation and feasibility study, except where -
(I) there are known and projected points of entry of such
groundwater into surface water; and
(II) on the basis of measurements or projections, there is or
will be no statistically significant increase of such
constituents from such groundwater in such surface water at the
point of entry or at any point where there is reason to believe
accumulation of constituents may occur downstream; and
(III) the remedial action includes enforceable measures that
will preclude human exposure to the contaminated groundwater at
any point between the facility boundary and all known and
projected points of entry of such groundwater into surface water
then the assumed point of human exposure may be at such known and
projected points of entry.
(C)(i) Clause (ii) of this subparagraph shall be applicable only
in cases where, due to the President's selection, in compliance
with subsection (b)(1) of this section, of a proposed remedial
action which does not permanently and significantly reduce the
volume, toxicity, or mobility of hazardous substances, pollutants,
or contaminants, the proposed disposition of waste generated by or
associated with the remedial action selected by the President is
land disposal in a State referred to in clause (ii).
(ii) Except as provided in clauses (iii) and (iv), a State
standard, requirement, criteria, or limitation (including any State
siting standard or requirement) which could effectively result in
the statewide prohibition of land disposal of hazardous substances,
pollutants, or contaminants shall not apply.
(iii) Any State standard, requirement, criteria, or limitation
referred to in clause (ii) shall apply where each of the following
conditions is met:
(I) The State standard, requirement, criteria, or limitation is
of general applicability and was adopted by formal means.
(II) The State standard, requirement, criteria, or limitation
was adopted on the basis of hydrologic, geologic, or other
relevant considerations and was not adopted for the purpose of
precluding onsite remedial actions or other land disposal for
reasons unrelated to protection of human health and the
environment.
(III) The State arranges for, and assures payment of the
incremental costs of utilizing, a facility for disposition of the
hazardous substances, pollutants, or contaminants concerned.
(iv) Where the remedial action selected by the President does not
conform to a State standard and the State has initiated a law suit
against the Environmental Protection Agency prior to May 1, 1986,
to seek to have the remedial action conform to such standard, the
President shall conform the remedial action to the State standard.
The State shall assure the availability of an offsite facility for
such remedial action.
(3) In the case of any removal or remedial action involving the
transfer of any hazardous substance or pollutant or contaminant
offsite, such hazardous substance or pollutant or contaminant shall
only be transferred to a facility which is operating in compliance
with section 3004 and 3005 of the Solid Waste Disposal Act [42
U.S.C. 6924, 6925] (or, where applicable, in compliance with the
Toxic Substances Control Act [15 U.S.C. 2601 et seq.] or other
applicable Federal law) and all applicable State requirements. Such
substance or pollutant or contaminant may be transferred to a land
disposal facility only if the President determines that both of the
following requirements are met:
(A) The unit to which the hazardous substance or pollutant or
contaminant is transferred is not releasing any hazardous waste,
or constituent thereof, into the groundwater or surface water or
soil.
(B) All such releases from other units at the facility are
being controlled by a corrective action program approved by the
Administrator under subtitle C of the Solid Waste Disposal Act
[42 U.S.C. 6921 et seq.].
The President shall notify the owner or operator of such facility
of determinations under this paragraph.
(4) The President may select a remedial action meeting the
requirements of paragraph (1) that does not attain a level or
standard of control at least equivalent to a legally applicable or
relevant and appropriate standard, requirement, criteria, or
limitation as required by paragraph (2) (including subparagraph (B)
thereof), if the President finds that -
(A) the remedial action selected is only part of a total
remedial action that will attain such level or standard of
control when completed;
(B) compliance with such requirement at that facility will
result in greater risk to human health and the environment than
alternative options;
(C) compliance with such requirements is technically
impracticable from an engineering perspective;
(D) the remedial action selected will attain a standard of
performance that is equivalent to that required under the
otherwise applicable standard, requirement, criteria, or
limitation, through use of another method or approach;
(E) with respect to a State standard, requirement, criteria, or
limitation, the State has not consistently applied (or
demonstrated the intention to consistently apply) the standard,
requirement, criteria, or limitation in similar circumstances at
other remedial actions within the State; or
(F) in the case of a remedial action to be undertaken solely
under section 9604 of this title using the Fund, selection of a
remedial action that attains such level or standard of control
will not provide a balance between the need for protection of
public health and welfare and the environment at the facility
under consideration, and the availability of amounts from the
Fund to respond to other sites which present or may present a
threat to public health or welfare or the environment, taking
into consideration the relative immediacy of such threats.
The President shall publish such findings, together with an
explanation and appropriate documentation.
(e) Permits and enforcement
(1) No Federal, State, or local permit shall be required for the
portion of any removal or remedial action conducted entirely
onsite, where such remedial action is selected and carried out in
compliance with this section.
(2) A State may enforce any Federal or State standard,
requirement, criteria, or limitation to which the remedial action
is required to conform under this chapter in the United States
district court for the district in which the facility is located.
Any consent decree shall require the parties to attempt
expeditiously to resolve disagreements concerning implementation of
the remedial action informally with the appropriate Federal and
State agencies. Where the parties agree, the consent decree may
provide for administrative enforcement. Each consent decree shall
also contain stipulated penalties for violations of the decree in
an amount not to exceed $25,000 per day, which may be enforced by
either the President or the State. Such stipulated penalties shall
not be construed to impair or affect the authority of the court to
order compliance with the specific terms of any such decree.
(f) State involvement
(1) The President shall promulgate regulations providing for
substantial and meaningful involvement by each State in initiation,
development, and selection of remedial actions to be undertaken in
that State. The regulations, at a minimum, shall include each of
the following:
(A) State involvement in decisions whether to perform a
preliminary assessment and site inspection.
(B) Allocation of responsibility for hazard ranking system
scoring.
(C) State concurrence in deleting sites from the National
Priorities List.
(D) State participation in the long-term planning process for
all remedial sites within the State.
(E) A reasonable opportunity for States to review and comment
on each of the following:
(i) The remedial investigation and feasibility study and all
data and technical documents leading to its issuance.
(ii) The planned remedial action identified in the remedial
investigation and feasibility study.
(iii) The engineering design following selection of the final
remedial action.
(iv) Other technical data and reports relating to
implementation of the remedy.
(v) Any proposed finding or decision by the President to
exercise the authority of subsection (d)(4) of this section.
(F) Notice to the State of negotiations with potentially
responsible parties regarding the scope of any response action at
a facility in the State and an opportunity to participate in such
negotiations and, subject to paragraph (2), be a party to any
settlement.
(G) Notice to the State and an opportunity to comment on the
President's proposed plan for remedial action as well as on
alternative plans under consideration. The President's proposed
decision regarding the selection of remedial action shall be
accompanied by a response to the comments submitted by the State,
including an explanation regarding any decision under subsection
(d)(4) of this section on compliance with promulgated State
standards. A copy of such response shall also be provided to the
State.
(H) Prompt notice and explanation of each proposed action to
the State in which the facility is located.
Prior to the promulgation of such regulations, the President shall
provide notice to the State of negotiations with potentially
responsible parties regarding the scope of any response action at a
facility in the State, and such State may participate in such
negotiations and, subject to paragraph (2), any settlements.
(2)(A) This paragraph shall apply to remedial actions secured
under section 9606 of this title. At least 30 days prior to the
entering of any consent decree, if the President proposes to select
a remedial action that does not attain a legally applicable or
relevant and appropriate standard, requirement, criteria, or
limitation, under the authority of subsection (d)(4) of this
section, the President shall provide an opportunity for the State
to concur or not concur in such selection. If the State concurs,
the State may become a signatory to the consent decree.
(B) If the State does not concur in such selection, and the State
desires to have the remedial action conform to such standard,
requirement, criteria, or limitation, the State shall intervene in
the action under section 9606 of this title before entry of the
consent decree, to seek to have the remedial action so conform.
Such intervention shall be a matter of right. The remedial action
shall conform to such standard, requirement, criteria, or
limitation if the State establishes, on the administrative record,
that the finding of the President was not supported by substantial
evidence. If the court determines that the remedial action shall
conform to such standard, requirement, criteria, or limitation, the
remedial action shall be so modified and the State may become a
signatory to the decree. If the court determines that the remedial
action need not conform to such standard, requirement, criteria, or
limitation, and the State pays or assures the payment of the
additional costs attributable to meeting such standard,
requirement, criteria, or limitation, the remedial action shall be
so modified and the State shall become a signatory to the decree.
(C) The President may conclude settlement negotiations with
potentially responsible parties without State concurrence.
(3)(A) This paragraph shall apply to remedial actions at
facilities owned or operated by a department, agency, or
instrumentality of the United States. At least 30 days prior to the
publication of the President's final remedial action plan, if the
President proposes to select a remedial action that does not attain
a legally applicable or relevant and appropriate standard,
requirement, criteria, or limitation, under the authority of
subsection (d)(4) of this section, the President shall provide an
opportunity for the State to concur or not concur in such
selection. If the State concurs, or does not act within 30 days,
the remedial action may proceed.
(B) If the State does not concur in such selection as provided in
subparagraph (A), and desires to have the remedial action conform
to such standard, requirement, criteria, or limitation, the State
may maintain an action as follows:
(i) If the President has notified the State of selection of
such a remedial action, the State may bring an action within 30
days of such notification for the sole purpose of determining
whether the finding of the President is supported by substantial
evidence. Such action shall be brought in the United States
district court for the district in which the facility is located.
(ii) If the State establishes, on the administrative record,
that the President's finding is not supported by substantial
evidence, the remedial action shall be modified to conform to
such standard, requirement, criteria, or limitation.
(iii) If the State fails to establish that the President's
finding was not supported by substantial evidence and if the
State pays, within 60 days of judgment, the additional costs
attributable to meeting such standard, requirement, criteria, or
limitation, the remedial action shall be selected to meet such
standard, requirement, criteria, or limitation. If the State
fails to pay within 60 days, the remedial action selected by the
President shall proceed through completion.
(C) Nothing in this section precludes, and the court shall not
enjoin, the Federal agency from taking any remedial action
unrelated to or not inconsistent with such standard, requirement,
criteria, or limitation.