42 U.S.C. § 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

1 See References in Text note below.

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  of this chapter, or to the review of any regulation promulgated under title 26.

(d)

December 11, 1980 Litigation commenced prior to

December 11, 1980No 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 .

(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

section 9607(a) of this title section 9606 of this title section 9607(a) of this title section 9606 of this title section 9607 of this titleAny person may seek contribution from any other person who is liable or potentially liable under , during or following any civil action under or under . 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 or .

(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

section 9601(6) of this titleExcept as provided in paragraphs (3) and (4), no action may be commenced for damages (as defined in ) 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)

section 9651(c) of this title The date on which regulations are promulgated under .

section 9620 of this title section 9604(b) of this title section 9620 of this titleOctober 17, 1986With respect to any facility listed on the National Priorities List (NPL), any Federal facility identified under (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 or (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 .

(2)

Actions for recovery of costs

section 9607 of this titleAn initial action for recovery of the costs referred to in must be commenced—

(A)

section 9604(c)(1)(C) of this title 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 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.

section 9607 of this title section 9607 of this titleIn 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 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 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)

section 9622(g) of this title the date of an administrative order under (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

section 9619 of this title section 9607 of this titleNotwithstanding any other provision of this subsection, where a payment pursuant to an indemnification agreement with a response action contractor is made under , an action under 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

section 1332 of title 28 section 9621 of this title section 9604 of this title section 9606(a) of this titleNo Federal court shall have jurisdiction under Federal law other than under (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under (relating to cleanup standards) to review any challenges to removal or remedial action selected under , or to review any order issued under , in any action except one of the following:

(1)

section 9607 of this title An action under to recover response costs or damages or for contribution.

(2)

section 9606(a) of this title An action to enforce an order issued under or to recover a penalty for violation of such order.

(3)

section 9606(b)(2) of this title An action for reimbursement under .

(4)

section 9659 of this title section 9604 of this title section 9606 of this title An action under (relating to citizens suits) alleging that the removal or remedial action taken under or secured under 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)

section 9606 of this title An action under in which the United States has moved to compel a remedial action.

(i)

Intervention

42 U.S.C. 6901In any action commenced under this chapter or under the Solid Waste Disposal Act [ 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)

section 9617(a)(2) of this title An opportunity for a public meeting in the affected area, in accordance with (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.

section 9617(d) of this titleFor 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 . 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, § 113Dec. 11, 198094 Stat. 2795 Pub. L. 99–499, title I, § 113Oct. 17, 1986100 Stat. 1647 Pub. L. 99–514, § 2Oct. 22, 1986100 Stat. 2095(, , ; , , ; , , .)

Editorial Notes

References in Text

Pub. L. 96–510Dec. 11, 198094 Stat. 2767 section 9601 of this titleThis chapter, referred to in text, was in the original “this Act”, meaning , , , known as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under and Tables.

Pub. L. 96–510Dec. 11, 198094 Stat. 2796 Pub. L. 96–510 Pub. L. 99–499, title VOct. 17, 1986100 Stat. 1767 section 1 of Title 26Subchapter II of this chapter, referred to in subsec. (c), was in the original “title II of this Act”, meaning title II of , , , 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 , which were classified to sections 9631 to 9633 and 9641 of this title, comprising subchapter II of this chapter, were repealed by , §§ 514(b), 517(c)(1), , , 1774. For complete classification of title II to the Code, see Short Title of 1980 Amendment note set out under 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.

Pub. L. 89–272Oct. 20, 196579 Stat. 997 Pub. L. 94–580, § 2Oct. 21, 197690 Stat. 2795 section 6901 of this titleThe Solid Waste Disposal Act, referred to in subsec. (i), is title II of , , , as amended generally by , , , which is classified generally to chapter 82 (§ 6901 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under and Tables.

Amendments

Pub. L. 99–499, § 113(c)(1)1986—Subsec. (b). , substituted “subsections (a) and (h)” for “subsection (a)”.

Pub. L. 99–514Subsec. (c). 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.

lPub. L. 99–499, § 113(a)lSubsecs. (e) to (). , (b), (c)(2), added subsecs. (e) to ().