42 U.S.C. § 9628 : US Code - Section 9628: State response programs

Search 42 U.S.C. § 9628 : US Code - Section 9628: State response programs

(a) Assistance to States
(1) In general
(A) States
The Administrator may award a grant to a State or Indian
tribe that -
(i) has a response program that includes each of the
elements, or is taking reasonable steps to include each of
the elements, listed in paragraph (2); or
(ii) is a party to a memorandum of agreement with the
Administrator for voluntary response programs.
(B) Use of grants by States
(i) In general
A State or Indian tribe may use a grant under this
subsection to establish or enhance the response program of
the State or Indian tribe.
(ii) Additional uses
In addition to the uses under clause (i), a State or Indian
tribe may use a grant under this subsection to -
(I) capitalize a revolving loan fund for brownfield
remediation under section 9604(k)(3) of this title; or
(II) purchase insurance or develop a risk sharing pool,
an indemnity pool, or insurance mechanism to provide
financing for response actions under a State response
program.
(2) Elements
The elements of a State or Indian tribe response program
referred to in paragraph (1)(A)(i) are the following:
(A) Timely survey and inventory of brownfield sites in the
State.
(B) Oversight and enforcement authorities or other
mechanisms, and resources, that are adequate to ensure that -
(i) a response action will -
(I) protect human health and the environment; and
(II) be conducted in accordance with applicable Federal
and State law; and
(ii) if the person conducting the response action fails to
complete the necessary response activities, including
operation and maintenance or long-term monitoring activities,
the necessary response activities are completed.
(C) Mechanisms and resources to provide meaningful
opportunities for public participation, including -
(i) public access to documents that the State, Indian
tribe, or party conducting the cleanup is relying on or
developing in making cleanup decisions or conducting site
activities;
(ii) prior notice and opportunity for comment on proposed
cleanup plans and site activities; and
(iii) a mechanism by which -
(I) a person that is or may be affected by a release or
threatened release of a hazardous substance, pollutant, or
contaminant at a brownfield site located in the community
in which the person works or resides may request the
conduct of a site assessment; and
(II) an appropriate State official shall consider and
appropriately respond to a request under subclause (I).
(D) Mechanisms for approval of a cleanup plan, and a
requirement for verification by and certification or similar
documentation from the State, an Indian tribe, or a licensed
site professional to the person conducting a response action
indicating that the response is complete.
(3) Funding
There is authorized to be appropriated to carry out this
subsection $50,000,000 for each of fiscal years 2002 through
2006.
(b) Enforcement in cases of a release subject to State program
(1) Enforcement
(A) In general
Except as provided in subparagraph (B) and subject to
subparagraph (C), in the case of an eligible response site at
which -
(i) there is a release or threatened release of a hazardous
substance, pollutant, or contaminant; and
(ii) a person is conducting or has completed a response
action regarding the specific release that is addressed by
the response action that is in compliance with the State
program that specifically governs response actions for the
protection of public health and the environment,
the President may not use authority under this chapter to take
an administrative or judicial enforcement action under section
9606(a) of this title or to take a judicial enforcement action
to recover response costs under section 9607(a) of this title
against the person regarding the specific release that is
addressed by the response action.
(B) Exceptions
The President may bring an administrative or judicial
enforcement action under this chapter during or after
completion of a response action described in subparagraph (A)
with respect to a release or threatened release at an eligible
response site described in that subparagraph if -
(i) the State requests that the President provide
assistance in the performance of a response action;
(ii) the Administrator determines that contamination has
migrated or will migrate across a State line, resulting in
the need for further response action to protect human health
or the environment, or the President determines that
contamination has migrated or is likely to migrate onto
property subject to the jurisdiction, custody, or control of
a department, agency, or instrumentality of the United States
and may impact the authorized purposes of the Federal
property;
(iii) after taking into consideration the response
activities already taken, the Administrator determines that -

(I) a release or threatened release may present an
imminent and substantial endangerment to public health or
welfare or the environment; and
(II) additional response actions are likely to be
necessary to address, prevent, limit, or mitigate the
release or threatened release; or
(iv) the Administrator, after consultation with the State,
determines that information, that on the earlier of the date
on which cleanup was approved or completed, was not known by
the State, as recorded in documents prepared or relied on in
selecting or conducting the cleanup, has been discovered
regarding the contamination or conditions at a facility such
that the contamination or conditions at the facility present
a threat requiring further remediation to protect public
health or welfare or the environment. Consultation with the
State shall not limit the ability of the Administrator to
make this determination.
(C) Public record
The limitations on the authority of the President under
subparagraph (A) apply only at sites in States that maintain,
update not less than annually, and make available to the public
a record of sites, by name and location, at which response
actions have been completed in the previous year and are
planned to be addressed under the State program that
specifically governs response actions for the protection of
public health and the environment in the upcoming year. The
public record shall identify whether or not the site, on
completion of the response action, will be suitable for
unrestricted use and, if not, shall identify the institutional
controls relied on in the remedy. Each State and tribe
receiving financial assistance under subsection (a) of this
section shall maintain and make available to the public a
record of sites as provided in this paragraph.
(D) EPA notification
(i) In general
In the case of an eligible response site at which there is
a release or threatened release of a hazardous substance,
pollutant, or contaminant and for which the Administrator
intends to carry out an action that may be barred under
subparagraph (A), the Administrator shall -
(I) notify the State of the action the Administrator
intends to take; and
(II)(aa) wait 48 hours for a reply from the State under
clause (ii); or
(bb) if the State fails to reply to the notification or
if the Administrator makes a determination under clause
(iii), take immediate action under that clause.
(ii) State reply
Not later than 48 hours after a State receives notice from
the Administrator under clause (i), the State shall notify
the Administrator if -
(I) the release at the eligible response site is or has
been subject to a cleanup conducted under a State program;
and
(II) the State is planning to abate the release or
threatened release, any actions that are planned.
(iii) Immediate Federal action
The Administrator may take action immediately after giving
notification under clause (i) without waiting for a State
reply under clause (ii) if the Administrator determines that
one or more exceptions under subparagraph (B) are met.
(E) Report to Congress
Not later than 90 days after the date of initiation of any
enforcement action by the President under clause (ii), (iii),
or (iv) of subparagraph (B), the President shall submit to
Congress a report describing the basis for the enforcement
action, including specific references to the facts
demonstrating that enforcement action is permitted under
subparagraph (B).
(2) Savings provision
(A) Costs incurred prior to limitations
Nothing in paragraph (1) precludes the President from seeking
to recover costs incurred prior to January 11, 2002, or during
a period in which the limitations of paragraph (1)(A) were not
applicable.
(B) Effect on agreements between States and EPA
Nothing in paragraph (1) -
(i) modifies or otherwise affects a memorandum of
agreement, memorandum of understanding, or any similar
agreement relating to this chapter between a State agency or
an Indian tribe and the Administrator that is in effect on or
before January 11, 2002 (which agreement shall remain in
effect, subject to the terms of the agreement); or
(ii) limits the discretionary authority of the President to
enter into or modify an agreement with a State, an Indian
tribe, or any other person relating to the implementation by
the President of statutory authorities.
(3) Effective date
This subsection applies only to response actions conducted
after February 15, 2001.
(c) Effect on Federal laws
Nothing in this section affects any liability or response
authority under any Federal law, including -
(1) this chapter, except as provided in subsection (b) of this
section;
(2) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);
(3) the Federal Water Pollution Control Act (33 U.S.C. 1251 et
seq.);
(4) the Toxic Substances Control Act (15 U.S.C. 2601 et seq.);
and
(5) the Safe Drinking Water Act (42 U.S.C. 300f et seq.).