US Laws, Codes, Statutes & Cases

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[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
  January 7, 2003 and December 19, 2003]
[CITE: 42USC9613]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
  CHAPTER 103--COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND 
                                LIABILITY
 
  SUBCHAPTER I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION
 
Sec. 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.
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    \1\ See References in Text note below.
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(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.

(Pub. L. 96-510, title I, Sec. 113, Dec. 11, 1980, 94 Stat. 2795; Pub. 
L. 99-499, title I, Sec. 113, Oct. 17, 1986, 100 Stat. 1647; Pub. L. 99-
514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095.)

                       References in Text

    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 sections 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, Secs. 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, Sec. 2, Oct. 21, 1976, 90 Stat. 2795, which is 
classified generally to chapter 82 (Sec. 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, Sec. 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, Sec. 113(a), (b), (c)(2), added 
subsecs. (e) to (l).

                  Section Referred to in Other Sections

    This section is referred to in sections 9607, 9659 of this title.