
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC9619]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
  CHAPTER 103--COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND 
                                LIABILITY
 
  SUBCHAPTER I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION
 
Sec. 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\
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    \1\ So in original. The word ``and'' probably should not appear.
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                (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\
---------------------------------------------------------------------------
    \2\ So in original. Probably should not be capitalized.
    \3\ See References in Text note below.

            (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 [40 U.S.C. 541 et seq.]. 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 the Act of August 24, 1935 (40 U.S.C. 270a-270d), 
commonly referred to as the ``Miller Act'', surety bonds are required 
for any direct Federal procurement of any response action contract and 
are not waived pursuant to the Act of April 29, 1941 (40 U.S.C. 270e-
270f), they shall be issued in accordance with such Act of August 24, 
1935.
    (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.

(Pub. L. 96-510, title I, Sec. 119, as added Pub. L. 99-499, title I, 
Sec. 119, Oct. 17, 1986, 100 Stat. 1662; amended Pub. L. 99-514, Sec. 2, 
Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100-202, Sec. 101(f) [title II, 
Sec. 201], Dec. 22, 1987, 101 Stat. 1329-187, 1329-198; Pub. L. 101-584, 
Sec. 1, Nov. 15, 1990, 104 Stat. 2872; Pub. L. 102-484, div. A, title 
III, Sec. 331(a), Oct. 23, 1992, 106 Stat. 2373; Pub. L. 105-276, title 
III, Oct. 21, 1998, 112 Stat. 2497.)

                       References in Text

    The Solid Waste Disposal Act, referred to in subsec. (c)(5)(D), 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.
    Section 9660a of this title, referred to in subsec. (e)(2)(A)(iii), 
was in the original ``section 126'' probably meaning section 126 of Pub. 
L. 99-499, title I, Oct. 17, 1986, 100 Stat. 1690. Subsecs. (a) to (f) 
of section 126, which relate to worker protection standards, are set out 
as a note under section 655 of Title 29, Labor. Subsec. (g) of section 
126, which relates grants for training and education of workers who are 
or may be engaged in activities related to hazardous waste removal, 
etc., is classified to section 9660a of this title.
    The Federal Property and Administrative Services Act of 1949, 
referred to in subsec. (f), is act June 30, 1949, ch. 288, 63 Stat. 377, 
as amended. Title IX of the Federal Property and Administrative Services 
Act of 1949 is classified generally to subchapter VI (Sec. 541 et seq.) 
of chapter 10 of Title 40, Public Buildings, Property, and Works. For 
complete classification of this Act to the Code, see Short Title note 
set out under section 471 of Title 40 and Tables.
    Act of August 24, 1935, referred to in subsec. (g)(1), is act Aug. 
24, 1935, ch. 642, 49 Stat. 793, as amended, known as the Miller Act, 
which is classified generally to sections 270a to 270d-1 of Title 40, 
Public Buildings, Property, and Works. For complete classification of 
this Act to the Code, see Short Title note set out under section 270a of 
Title 40 and Tables.
    Act of April 29, 1941, referred to in subsec. (g)(1), is act April 
29, 1941, ch. 81, 55 Stat. 147, which is classified to sections 270e and 
270f of Title 40. For complete classification of this Act to the Code, 
see Tables.


                               Amendments

    1998--Subsec. (e)(2)(C). Pub. L. 105-276 struck out ``and before 
January 1, 1996,'' after ``1990,''.
    Subsec. (g)(5). Pub. L. 105-276 struck out ``, or after December 31, 
1995'' before period at end.
    1992--Subsec. (e)(2)(C). Pub. L. 102-484, Sec. 321(a)(1)(A), 
substituted ``January 1, 1996,'' for ``January 1, 1993''.
    Subsec. (g)(1). Pub. L. 102-484, Sec. 331(a)(2), substituted ``the 
Act of August 24, 1935 (40 U.S.C. 270a-270d), commonly referred to as 
the `Miller Act','' for ``the Miller Act, 40 U.S.C. sections 270a-
270f,'', inserted ``and are not waived pursuant to the Act of April 29, 
1941 (40 U.S.C. 270e-270f)'', and substituted ``in accordance with such 
Act of August 24, 1935.'' for ``in accordance with 40 U.S.C. sections 
270a-270d.''
    Subsec. (g)(5). Pub. L. 102-484, Sec. 331(a)(1)(B), substituted 
``December 31, 1995'' for ``December 31, 1992''.
    1990--Subsec. (e)(2)(C). Pub. L. 101-584, Sec. 1(1), (2), added 
subpar. (C).
    Subsec. (g). Pub. L. 101-584, Sec. 1(3), added subsec. (g).
    1987--Subsec. (e)(2)(A)(iii). Pub. L. 100-202 added cl. (iii).
    1986--Subsec. (c)(3). 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.


            Coordination of Titles I to IV of Pub. L. 99-499

    Any provision of titles I to IV of Pub. L. 99-499, imposing any tax, 
premium, or fee; establishing any trust fund; or authorizing 
expenditures from any trust fund, to have no force or effect, see 
section 531 of Pub. L. 99-499, set out as a note under section 1 of 
Title 26, Internal Revenue Code.

                  Section Referred to in Other Sections

    This section is referred to in section 9613 of this title; title 10 
sections 2701, 2706; title 14 section 691.
