Selection of remedial action
section 9604 of this titlesection 9606 of this titleThe President shall select appropriate remedial actions determined to be necessary to be carried out under or secured under 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.
General rules
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:
the long-term uncertainties associated with land disposal;
42 U.S.C. 6901 the goals, objectives, and requirements of the Solid Waste Disposal Act [ et seq.];
the persistence, toxicity, mobility, and propensity to bioaccumulate of such hazardous substances and their constituents;
short- and long-term potential for adverse health effects from human exposure;
long-term maintenance costs;
the potential for future remedial action costs if the alternative remedial action in question were to fail; and
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.
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.
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.
Degree of cleanup
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.
With respect to any hazardous substance, pollutant or contaminant that will remain onsite, if—
15 U.S.C. 260142 U.S.C. 300f42 U.S.C. 740133 U.S.C. 125116 U.S.C. 143133 U.S.C. 140142 U.S.C. 6901 any standard, requirement, criteria, or limitation under any Federal environmental law, including, but not limited to, the Toxic Substances Control Act [ et seq.], the Safe Drinking Water Act [ et seq.], the Clean Air Act [ et seq.], the Clean Water Act [ et seq.], the Marine Protection, Research and Sanctuaries Act [ et seq., 1447 et seq., et seq., 2801 et seq.], or the Solid Waste Disposal Act [ et seq.]; or
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,
section 9604 of this titlesection 9606 of this title42 U.S.C. 300f33 U.S.C. 1314is 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 or secured under 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 [ et seq.] and water quality criteria established under section 304 or 303 of the Clean Water Act [, 1313], where such goals or criteria are relevant and appropriate under the circumstances of the release or threatened release.
33 U.S.C. 1251 In determining whether or not any water quality criteria under the Clean Water Act [ 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.
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—
there are known and projected points of entry of such groundwater into surface water; and
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
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.
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 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).
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.
Any State standard, requirement, criteria, or limitation referred to in clause (ii) shall apply where each of the following conditions is met:
The State standard, requirement, criteria, or limitation is of general applicability and was adopted by formal means.
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.
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.
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 , 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.
42 U.S.C. 692415 U.S.C. 2601 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 [, 6925] (or, where applicable, in compliance with the Toxic Substances Control Act [ 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:
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.
42 U.S.C. 6921 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 [ et seq.].
The President shall notify the owner or operator of such facility of determinations under this paragraph.
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—
the remedial action selected is only part of a total remedial action that will attain such level or standard of control when completed;
compliance with such requirement at that facility will result in greater risk to human health and the environment than alternative options;
compliance with such requirements is technically impracticable from an engineering perspective;
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;
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
section 9604 of this title in the case of a remedial action to be undertaken solely under 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.
Permits and enforcement
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.
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.
State involvement
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:
State involvement in decisions whether to perform a preliminary assessment and site inspection.
Allocation of responsibility for hazard ranking system scoring.
State concurrence in deleting sites from the National Priorities List.
State participation in the long-term planning process for all remedial sites within the State.
A reasonable opportunity for States to review and comment on each of the following:
The remedial investigation and feasibility study and all data and technical documents leading to its issuance.
The planned remedial action identified in the remedial investigation and feasibility study.
The engineering design following selection of the final remedial action.
Other technical data and reports relating to implementation of the remedy.
Any proposed finding or decision by the President to exercise the authority of subsection (d)(4).
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.
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) on compliance with promulgated State standards. A copy of such response shall also be provided to the State.
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.
section 9606 of this title This paragraph shall apply to remedial actions secured under . 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), 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.
section 9606 of this title 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 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.
The President may conclude settlement negotiations with potentially responsible parties without State concurrence.
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), 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.
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:
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.
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.
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.
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, § 121Pub. L. 99–499, title I, § 121(a)100 Stat. 1672(, as added , , .)
Editorial Notes
References in Text
Pub. L. 89–27279 Stat. 997Pub. L. 94–580, § 290 Stat. 2795section 6901 of this titleThe Solid Waste Disposal Act, referred to in subsecs. (b)(1)(B) and (d)(2)(A)(i), (3)(B), is title II of , , , as amended generally by , , , which is classified generally to chapter 82 (§ 6901 et seq.) of this title. Subtitle C of the Solid Waste Disposal Act is classified generally to subchapter III (§ 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 and Tables.
Pub. L. 96–51094 Stat. 2767section 9601 of this titleThis chapter, referred to in subsecs. (d)(1) and (e)(2), 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. 94–46990 Stat. 2003section 2601 of Title 15The Toxic Substances Control Act, referred to in subsec. (d)(2)(A)(i), (3), is , , , which is classified generally to chapter 53 (§ 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 and Tables.
Pub. L. 93–523, § 2(a)88 Stat. 1660section 201 of this titleThe Safe Drinking Water Act, referred to in subsec. (d)(2)(A), is title XIV of act , as added , , , which is classified generally to subchapter XII (§ 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 and Tables.
act July 14, 1955, ch. 36069 Stat. 322section 7401 of this titleThe Clean Air Act, referred to in subsec. (d)(2)(A)(i), is , , which is classified generally to chapter 85 (§ 7401 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under and Tables.
act June 30, 1948, ch. 758Pub. L. 92–500, § 286 Stat. 816section 1251 of Title 33The Clean Water Act, referred to in subsec. (d)(2)(A)(i), (B)(i), is , as amended generally by , , , also known as the Federal Water Pollution Control Act, which is classified generally to chapter 26 (§ 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 and Tables.
Pub. L. 92–53286 Stat. 1052section 1401 of Title 33The 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, , , , which enacted chapters 32 (§ 1431 et seq.) and 32A (§ 1447 et seq.) of Title 16, Conservation, and chapters 27 (§ 1401 et seq.) and 41 (§ 2801 et seq.) of Title 33. For complete classification of this Act to the Code, see Short Title note set out under and Tables.
Statutory Notes and Related Subsidiaries
Effective Date
Pub. L. 99–499, title I, § 121(b)100 Stat. 1678
“With respect to section 121 of CERCLA [this section], as added by this section—
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 [].
If the ROD was signed, or the consent decree lodged, within the 30-day period immediately following enactment of the Act [], 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 [] 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.”
Termination of Reporting Requirements
section 3003 of Pub. L. 104–66section 1113 of Title 31For termination, effective , of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103–7 (in which the report under subsec. (c) of this section appears to be the report listed as the 15th item on page 20), see , as amended, set out as a note under , Money and Finance.