
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: 42USC9621]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
  CHAPTER 103--COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND 
                                LIABILITY
 
  SUBCHAPTER I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION
 
Sec. 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.

(Pub. L. 96-510, title I, Sec. 121, as added Pub. L. 99-499, title I, 
Sec. 121(a), Oct. 17, 1986, 100 Stat. 1672.)

                       References in Text

    The Solid Waste Disposal Act, referred to in subsecs. (b)(1)(B) and 
(d)(2)(A)(i), (3)(B), 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. Subtitle C of the Solid Waste 
Disposal Act is classified generally to subchapter III (Sec. 6921 et 
seq.) of chapter 82 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.
    The Toxic Substances Control Act, referred to in subsec. 
(d)(2)(A)(i), (3), is Pub. L. 94-469, Oct. 11, 1976, 90 Stat. 2003, as 
amended, which is classified generally to chapter 53 (Sec. 2601 et seq.) 
of Title 15, Commerce and Trade. For complete classification of this Act 
to the Code, see Short Title note set out under section 2601 of Title 15 
and Tables.
    The Safe Drinking Water Act, referred to in subsec. (d)(2)(A), is 
title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L. 93-523, 
Sec. 2(a), 88 Stat. 1660, as amended, which is classified generally to 
subchapter XII (Sec. 300f et seq.) of chapter 6A of this title. For 
complete classification of this Act to the Code, see Short Title note 
set out under section 201 of this title and Tables.
    The Clean Air Act, referred to in subsec. (d)(2)(A)(i), is act July 
14, 1955, ch. 360, 69 Stat. 322, as amended, which is classified 
generally to chapter 85 (Sec. 7401 et seq.) of this title. For complete 
classification of this Act to the Code, see Short Title note set out 
under section 7401 of this title and Tables.
    The Clean Water Act, referred to in subsec. (d)(2)(A)(i), (B)(i), is 
act June 30, 1948, ch. 758, as amended generally by Pub. L. 92-500, 
Sec. 2, Oct. 18, 1972, 86 Stat. 816, also known as the Federal Water 
Pollution Control Act, which is classified generally to chapter 26 
(Sec. 1251 et seq.) of Title 33, Navigation and Navigable Waters. For 
complete classification of this Act to the Code, see Short Title note 
set out under section 1251 of Title 33 and Tables.
    The Marine Protection, Research and Sanctuaries Act, referred to in 
subsec. (d)(2)(A)(i), probably means the Marine Protection, Research and 
Sanctuaries Act of 1972, Pub. L. 92-532, Oct. 23, 1972, 86 Stat. 1052, 
as amended, which enacted chapters 32 (Sec. 1431 et seq.) and 32A 
(Sec. 1447 et seq.) of Title 16, Conservation, and chapters 27 
(Sec. 1401 et seq.) and 41 (Sec. 2801 et seq.) of Title 33. For complete 
classification of this Act to the Code, see Short Title note set out 
under section 1401 of Title 33 and Tables.


                             Effective Date

    Section 121(b) of Pub. L. 99-499 provided that: ``With respect to 
section 121 of CERCLA [this section], as added by this section--
        ``(1) The requirements of section 121 of CERCLA shall not apply 
    to any remedial action for which the Record of Decision (hereinafter 
    in this section referred to as the `ROD') was signed, or the consent 
    decree was lodged, before date of enactment [Oct. 17, 1986].
        ``(2) If the ROD was signed, or the consent decree lodged, 
    within the 30-day period immediately following enactment of the Act 
    [Oct. 17, 1986], the Administrator shall certify in writing that the 
    portion of the remedial action covered by the ROD or consent decree 
    complies to the maximum extent practicable with section 121 of 
    CERCLA.
Any ROD signed before enactment of this Act [Oct. 17, 1986] and reopened 
after enactment of this Act to modify or supplement the selection of 
remedy shall be subject to the requirements of section 121 of CERCLA.''

                  Section Referred to in Other Sections

    This section is referred to in sections 9604, 9613, 9617, 9620, 9651 
of this title.
