# Petition for Writ of Certiorari — United States v. Atlantic Research Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0501%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 - **Citation:** 551 U.S. 128 ## Text Supreme Court, U.S. WV) 06-562 0CT 24 2006 No. QFFICE OF THE CLERK Jn the Supreme Court of the Anited States UNITED STATES OF AMERICA, PETITIONER Vv. ATLANTIC RESEARCH CORPORATION ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI PAUL D. CLEMENT Solicitor General Counsel of Record SUE ELLEN WOOLDRIDGE Assistant Attorney General THOMAS G. HUNGAR Deputy Solicitor General KANNON K. SHANMUGAM Assistant to the Solicitor General RONALD M. SPRITZER ELLEN J. DURKEE Attorneys Department of Justice Washington, D.C. 20580-0001 (202) 514-2217 EE QUESTION PRESENTED Whether a party that is potentially responsible for the cost of cleaning up property contaminated by haz- ardous substances under the Comprehensive Environ- mental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601 et seq., but that does not satisfy the requirements for bringing an action for con- tribution under Section 113(f) of CERCLA, 42 U.S.C. 9613(f), may bring an action against another potentially responsible party under Section 107(a), 42 U.S.C. 9607(a). (1) TABLE OF CONTENTS Page a veka laches eeseawedeseet 1 Ta A toa ala ele aes bid le lite Bais eae 1 Statutory provisions involved ..............0.eeceeeeeees 2 ee ee ee ee ie te ee oe eu weed 2 Reasons for granting the petition ........................ 8 A. The decision below conflicts with the decisions of other courts of appeals .......cccccccccccccss 9 B. 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T 20, 24). 24a propellant pieces and propellant-contaminated waste- water also were released into the environment.” ARC alleges that the United States is liable under CERCLA because it owned the rocket motors and oper- ated the Camden site at the time hazardous substances were disposed from the motors and because it arranged for the transport and refurbishment of the rocket mo- tors knowing that the generation and disposal of wastes containing hazardous substances was inherent in the refurbishment process.” ARC seeks an award of its re- sponse costs incurred to date under CERCLA Section 107(a) and federal common law, or both.’ CERCLA identifies four categories of parties re- sponsible for cleanup costs at a contaminated facility, more commonly known as potentially responsible parties (“PRP”s): (1) [T]he owner or operator of . . . [the] facility, (2) [Ajny person who at the time of disposal of any hazardous substance owned or operated .. . [the] facility .. . (3) [A]Jny person who . . . arranged for disposal or treatment . . . of hazardous substances . . . at the facility . . .,and (4) |AJny person who accepts . . . hazardous sub- stances for transport to [the facility for disposal or treatment]. See 42 U.S.C. § 9607(a)(1)-(4). * (Ud. 99 25, 29). ® Ud. 99 67, 71, 75, 76). ‘ (d. Prayer for Relief 2). 25a Section 107(a)(4)(A) and (B) make PRP’s liable for: (A) all costs of removal or remedial action incurred by the United States Government . . . not inconsis- tent with the national contingency plan; (B) any other necessary costs of response incurred by any other person consistent with the national con- tingency plan. See 42 U.S.C. § 9607(a)(4)(A)-(B). As stated earlier, Aviall left unanswered the ques- tion of whether a PRP could assert a cost recovery claim under an implied right to contribution under Section 107(a). However, it appears the Eighth Circuit has al- ready answered this question, holding that a PRP can- not rely on Section 107(a) to seek full cost recovery on a theory of joint and several liability from another jointly liable party; rather, a party that is subject to CERCLA liability is limited to seeking contribution from other jointly liable parties in accordance with Section 113(f), unless the PRP qualifies for one of three defenses. Dico v. Amoco Oil Company, 340 F.3d 525 (8th Cir. 2003). These three defenses apply if the damage resulting from contamination was due to: (1) an act of God; (2) an act of war; or (3) an act or omission of a third party other than one . . . [which] occurs in connection with a contrac- tual relationship. . . .” /d. at 531, citing 28 U.S.C. § 9607(b). The defenses are available because “when one of the enumerated CERCLA defenses applies a PRP is deemed innocent; and an action between an innocent party and another PRP is not between two liable par- ties.” Id. ARC does not dispute that it and the United States are PRPs or argue that it is eligible for any of these ee ee 26a three defenses. Therefore, existing precedent appears to preclude ARC’s Section 107(a) claims against ARC. ARC acknowledges this precedent but argues that Aviall has undermined the fundamental support for Dico and other circuits’ decisions that Section 113(f) limits PRP’s claims for contribution and precludes ac- tions between PRPs for direct recovery under Section 107(a). ARC’s position finds support from some district courts who have passed on this issue. See Vine Street LLC v. Keeling, 362 F. Supp. 2d 754 (E.D. Tex. 2005) (holding despite Aviall and existing circuit precedent, PRP can bring a claim under Section 107(a) when it can- not meet the specific requirements of Section 113(f)(1)); Metropolitan Water Reclamation District of Greater Chicago v. Lake River Corp., 365 F. Supp. 2d 913 (N.D. Ill. 2005) (same). See also Syms v. Olin Corp., ___F3d___, 2005 WL 1164011, *8 n.8 (2nd Cir. 2005) (recognizing in dicta that Aviall combined with existing Second Circuit precedent would leave a PRP with no mechanism for recovering response costs until proceed- ings are brought against the PRP; expressing opinion that such a result “would create a perverse incentive for PRPs to wait until they are sued before incurring re- sponse costs”). In contrast, other district courts confronted with this issue have found that Aviall, combined with existing precedent, effectively precludes an implied cause of ac- tion pursuant to CERCLA Section 107(a). See City of Waukesha v. Viacom Int'l, Inc., 362 F. Supp. 2d 1025 (E.D. Wis. 2005) (denying plaintiff’s motion to amend as futile, finding Aviall did not vacate Seventh Circuit pre- cedent that held landowner who was a party liable in some measure for the contamination must seek contribu- 27a tion under § 113(f)); Mercury Mall Assoc. v. Nick’s Market, Inc., F. Supp. 2d , No. Civ. A. 4:04CV80, 2005 WL 1017855, *5 (E.D. Va. Feb, 28, 2005) (denying plaintiff's motion to amend, recognizing that although result was quixotic, the combined result of Aviall and existing precedent precluded implied right of contribution under 107(a) and left PRP without a rem- edy); Elementis Chems., Inc. v. TH Agric. & Nutrition, LLC, No. 03 Civ. 5150 (LBS), 2005 WL 236488 (S.D.N.Y. Jan. 31, 2005) (finding a PRP without defense to dam- ages precluded from bringing 107(a) cost recovery ac- tion following Aviall). This Court agrees with the logic that the holdings of existing Eighth Circuit precedent and Aviall leave a party in ARC’s position without a remedy. Aviail specif- ically declined to address the issue of whether as an al- ternative to an action for contribution under Section 113(f)(1), a PRP could recover costs under Section 107(a). Aviall, 125 S.Ct. at 586. Aviall does not under- mine the Eighth Circuit precedent in Dico, precedent that this Court is bound to follow. See Hood v. U.S., 342 F.3d 861, 864 (8th Cir. 2003) (holding district court in Eighth Circuit is bound to apply to the precedent of the Eighth Circuit Court of Appeals); Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 838 (8th Cir. 2001) (hold- ing panel of court of appeals cannot overrule another panel unless the earlier panel decision is cast into doubt by a decision of the Supreme Court). The Court recog- nizes that the result reached in this Order is patently unfair to ARC, because it has voluntarily cleaned up environmental contamination, yet it is left without a CERCLA remedy against the United States, another PRP. Perhaps the Eighth Circuit will give attention to these consequences if it considers the holding of Dico. Ill. Conclusion Based on the foregoing, the Court finds the Motion to Dismiss should be and hereby is granted. An Order of even date consistent with this Opinion shall issue. IT ISSO ORDERED this 31 day of May, 2005. /s/ HARRY F. BARNES. HON. HARRY F.. BARNES U.S. District Judge 29a APPENDIX C 1. 42 U.S.C. 9607 provides: Liability (a) Covered persons; scope: recoverable costs and dam- ages; interest rate; “comparable maturity” date Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section— (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for— 30a (A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; (C) damages for injury to, destruction of, or loss of natural resources, including the rea- sonable costs of assessing such injury, destruc- tion, or loss resulting from such a release; and (D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title. The amounts recoverable in an action under this section shall include interest on the amounts recoverable under subparagraphs (A) through (D). Such interest shall accrue from the later of (i) the date payment of a specified amount is demanded in writing, or (ii) the date of the expenditure concerned. The rate of interest on the outstanding unpaid balance of the amounts recover- able under this section shall be the same rate as is specified for interest on investments of the Hazardous Substance Superfund established under subchapter A of chapter 98 of Title 26. For purposes of applying such amendments to interest under this subsection, the term “comparable maturity” shall be determined with re- ference to the date on which interest accruing under this subsection commences. 3la (b) Defenses There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by— (1) an act of God; (2) an act of war; (3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and cir- cumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions; or (4) any combination of the foregoing paragraphs. (c) Determination of amounts (1) Exeept as provided in paragraph (2) of this subsection, the liability under this section of an owner or operator or other responsible person for each release of 32a a hazardous substance or incident involving release of a hazardous substance shall not exceed— (A) for any vessel, other than an incineration vessel, which carries any hazardous substance as cargo or residue, $300 per gross ton, or $5,000,000, which- ever is greater; (B) for any other vessel, other than an incinera- tion vessel, $300 per gross ton, or $500,000, whichever is greater; (C) for any motor vehicle, aircraft, hazardous liquid pipeline facility (as defined in section 60101(a) of Title 49), or rolling stock, $50,000,000 or such lesser amount as the President shall establish by regulation, but in no event less than $5,000,000 (or, for releases of hazardous substances as defined in section 9601(14)(A) of this title into the navigable waters, $8,000,000). Such regulations shall take into account the size, type, location, storage, and handling capacity and other matters relating to the likelihood of release in each such class and to the economic impact of such limits on each such class; or (D) for any incineration vessel or any facility other than those specified in subparagraph (C) of this paragraph, the total of all costs of response plus $50,000,000 for any damages under this subchapter. (2) Notwithstanding the limitations in paragraph (1) of this subsection, the liability of an owner or operator or other responsible person under this section shall be the full and total costs of response and damages, if (A)(i) the release or threat of release of a hazardous substance was the result of willful misconduct or willful negligence 33a within the privity or knowledge of such person, or (ii) the primary cause of the release was a violation (within the privity or knowledge of such person) of applicable safety, construction, or operating standards or regula- tions; or (B) such person fails or refuses to provide all reasonable cooperation and assistance requested by a responsible public official in connection with response activities under the national contingency plan with respect to regulated carriers subject to the provisions of Title 49 or vessels subject to the provisions of Title 33, 46, or 46 Appendix, subparagraph (A)(ii) of this paragraph shall be deemed to refer to Federal stan- dards or regulations. (3) If any person who is liable for a release or threat of release of a hazardous substance fails without sufficient cause to properly provide removal or remedial action upon order of the President pursuant to section 9604 or 9606 of this title, such person may be liable to the United States for punitive damages in an amount at least equal to, and not more than three times, the amount of any costs incurred by the Fund as a result of such failure to take proper action. The President is authorized to commence a civil action against any such person to recover the punitive damages, which shall be in addition to any costs recovered from such person pursuant to section 9612(c) of this title. Any moneys received by the United States pursuant to this subsection shall be deposited in the Fund. (d) Rendering care or advice (1) In general Except as provided in paragraph (2), no person shall be liable under this subchapter for costs or 34a damages as a result of actions taken or omitted in the course of rendering care, assistance, or advice in accordance with the National Contingency Plan (“NCP”) or at the direction of an onscene coordinator appointed under such plan, with respect to an incident creating a danger to public health or welfare or the environment as a result of any releases of a hazardous substance or the threat thereof. This paragraph shall not preclude liability for costs or damages as the result of negligence on the part of such person. (2) State and local governments No State or local government shall be liable under this subchapter for costs or damages as a result of actions taken in response to an emergency created by the release or threatened release of a hazardous substance generated by or from a facility owned by another person. This paragraph shall not preclude liability for costs or damages as a result of gross negligence or intentional misconduct by the State or local government. For the purpose of the preceding sentence, reckless, willful, or wanton misconduct shall constitute gross negligence. (3) Savings provision This subsection shall not alter the liability of any person covered by the provisions of paragraph (1), (2), (3), or (4) of subsection (a) of this section with respect to the release or threatened release con- cerned. 30a (e) Indemnification, hold harmless, etc., agreements or conveyances; subrogation rights (1) No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any. liability under this section. (2) Nothing in this subchapter, including the pro- visions of paragraph (1) of this subsection, shall bar a - cause of action that an owner or operator or any other person subject to liability under this section, or a guarantor, has or would have, by reason of subrogation or otherwise against any person. (f) Natural resources liability; designation of public trustees of natural resources (1) Natural resources liability In the case of an injury to, destruction of, or loss of natural resources under subparagraph (C) of subsection (a) of this section liability shall be to the United States Government and to any State for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such State and to any Indian tribe for natural resources belonging to, managed by, controlied by, or appertaining to such tribe, or held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust 36a restriction on alienation: Provided, however, That no liability to the United States or State or Indian tribe shall be imposed under subparagraph (C) of sub- section (a) of this section, where the party sought to be charged has demonstrated that the damages to natural resources complained of were specifically identified as an irreversible and irretrievable com- mitment of natural resources in an environmental impact statement, or other comparable environment analysis, and the decision to grant a permit or license authorizes such commitment of natural resources, and the facility or project was otherwise operating within the terms of its permit or license, so long as, in the case of damages to an Indian tribe occurring pursuant to a Federal permit or license, the issuance of that permit or license was not inconsistent with the fiduciary duty of the United States with respect to such Indian tribe. The President, or the authorized representative of any State, shall act on behalf of the public as trustee of such natural re- sources to recover for such damages. Sums re- covered by the United States Government as trustee under this subsection shall be retained by the trustee, without further appropriation, for use only to restore, replace, or acquire the equivalent of such natural resources. Sums recovered by a State as trustee under this subsection shall be available for use only to restore, replace, or acquire the equivalent of such natural resources by the State. The measure of damages in any action under subparagraph (C) of subsection (a) of this section shall not be limited by the sums which can be used to restore or replace ‘such resources. There shall be no double recovery under this chapter for natural resource damages, 37a including the costs of damage assessment or re- storation, rehabilitation, or acquisition for the same release and natural resource. There shall be no recovery under the authority of subparagraph (C) of subsection (a) of this section where such damages and the release of a hazardous substance from which such damages resulted have occurred wholly before December 11, 1980. (2) Designation of Federal and State officials (A) Federal The President shall designate in the National Contingency Plan published under section 9605 of this title the Federal officials who shall act on behalf of the public as trustees for natural resources under this chapter and section 1321 of Title 33. Such officials shall assess damages for injury to, destruction of, or loss of natural resources for pur- poses of this chapter and such section 1321 of Title 33 for those resources under their trusteeship and may, upon request of and reimbursement from a State and at the Federal officials’ discretion, assess damages for those natural resources under the State’s trusteeship. (B) State The Governor of each State shall designate State officials who may act on behalf of the public as trustees for natural resources under this chapter and section 1321 of Title 33 and shall notify the President of such designauons. Such State officials shall assess damages to natural resources for the purposes of this 38a chapter and such section 1321 of Title 33 for those natural resources under their trusteeship. (C) Rebuttable presumption Any determination or assessment of damages to natural resources for the purposes of this chapter and section 1321 of Title 33 made by a Federal or State trustee in accordance with the regulations promulgated under section 9651(c) of this title shall have the force and effect of a rebuttable presumption on behalf of the trustee in any administrative or judicial proceeding under this chapter or section 1321 of Title 33. (g) Federal agencies For provisions relating to Federal agencies, see section 9620 of this title. (h) Owner or operator of vessel The owner or operator of a vessel shall be liable in accordance with this section, under maritime tort law, and as provided under section 9614 of this title notwithstanding any provision of the Act of March 3, 1851 (46 U.S.C. 183ff) [46 App. U.S.C. 182, 183, 184-188] or the absence of any physical damage to the proprietary interest of the claimant. (ij) Application of a registered pesticide product No person (including the United States or any State or Indian tribe) may recover under the authority of this section for any response costs or damages resulting from the application of a pesticide product registered under the Federal Insecticide, Fungicide, and 39a Rodenticide Act [7 U.S.C. 136 et seq.]. Nothing in this paragraph shall affect or modify in any way the obligations or liability of any person under any other provision of State or Federal law, including common law, for damages, injury, or loss resulting from a release of any hazardous substance or for removal or remedial action or the costs of removal or remedial action of such hazardous substance. (j) Obligations or liability pursuant to federally per- mitted release Recovery by any person (including the United States or any State or Indian tribe) for response costs or damages resulting from a federally permitted release shall be pursuant to existing law in lieu of this section. Nothing in this paragraph shall affect or modify in any way the obligations or liability of any person under any other provision of State or Federal law, including common law, for damages, injury, or loss resulting from a release of any hazardous substance or for removal or remedial action or the costs of removal or remedial action of such hazardous substance. In addition, costs of response incurred by the Federal Government in connection with a discharge specified in section 9601(10)(B) or (C) of this title shall be recoverable in an action brought under section 1319(b) of Title 33. (k) Transfer to, and assumption by, Post-Closure Liability Fund of liability of owner or operator of hazardous waste disposal facility in receipt of permit under applicable solid waste disposal law; time, criteria applicable, procedures, etc.; moni- toring costs; reports 40a (1) The liability established by this section or any other law for the owner or operator of a hazardous waste disposal facility which has received a permit under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.], shall be transferred to and assumed by the Post-closure Liability Fund established by section 9641 of this title when— (A) such facility and the owner and operator thereof has complied with the requirements of s ~.:itle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.] and regulations issued thereunder, which may affect the performance of such facility after closure; and (B) such facility has been closed in accordance with such regulations and the conditions of such permit, and such facility and the surrounding area have been monitored as required by such regulations and permit conditions for a period not to exceed five years after closure to demonstrate that there is no substantial likelihood that any migration offsite or release from confinement of any hazardous sub- stance or other risk to public health or welfare will occur. (2) Such transfer of liability shall be effective ninety days after the owner or operator of such facility notifies the Administrator of the Environmental Protection Agency (and the State where it has an authorized program under section 3006(b) of the Solid Waste Disposal Act [42 U.S.C. 6926(b)]) that the conditions imposed by this subsection have been satisfied. If within such ninety-day period the Administrator of the Environmental Protection Agency or such State 4la determines that any such facility has not complied with all the conditions imposed by this subsection or that insufficient information has been provided to demon- strate such compliance, the Administrator or such State shall so notify the owner and operator of such facility and the administrator of the Fund established by section 9641 of this title, and the owner and operator of such facility shall continue to be liable with respect to such facility under this section and other law until such time as the Administrator and such State determines that such facility has complied with all conditions imposed by this subsection. A determination by the Administrator or such State that a facility has not complied with all conditions imposed by this subsection or that insufficient information has been supplied to demonstrate com- pliance, shall be a final administrative action for pur- poses of judicial review. A request for additional infor- mation shall state in specific terms the data required. (3) In addition to the assumption of liability of owners and operators under paragraph (1) of this subsection, the Post-closure Liability Fund established by section 9641 of this title may be used to pay costs of monitoring and care and maintenance of a site incurred by other persons after the period of monitoring required by regulations under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.] for hazardous waste disposal facilities meeting the conditions of paragraph (1) of this subsection. (4)(A) Not later than one year after December 11, 1980, the Secretary of the Treasury shall conduct a study and shall submit a report thereon to the Congress on the feasibility of establishing or qualifying an optional system of private insurance for postclosure 42a financial responsibility for hazardous waste disposal facilities to which this subsection applies. Such study shall include a specification of adequate and realistic minimum standards to assure that any such privately placed insurance will carry out the purposes of this subsection in a reliable, enforceable, and practical manner. Such a study shall include an examination of the public and private incentives, programs, and actions necessary to make privately placed insurance a practical and effective option to the financing system for the Post- closure Liability Fund provided in subchapter II of this chapter. ; (B) Not later than eighteen months after December 11, 1980, and after a public hearing, the President shall by rule determine whether or not it is feasible to establish or qualify an optional system of private in- surance for postclosure financial responsibility for hazardous waste disposal facilities to which this sub- section applies. If the President determines the establishment or qualification of such a system would be infeasible, he shall promptly publish an explanation of the reasons for such a determination. If the President determines the establishment or qualification of such a system would be feasible, he shall promptly publish notice of such determination. Not later than six months after an affirmative determination under the preceding sentence and after a public hearing, the President shall by rule promulgate adequate and realistic minimum standards which must be met by any such privately placed insurance, taking into account the purposes of this chapter and this subsection. Such rules shall also specify reasonably expeditious procedures by which privately placed insurance plans can qualify as meeting such minimum standards. 43a (C) In the event any privately placed insurance plan qualifies under subparagraph (B), any person enrolled in, and complying with the terms of, such plan shall be excluded from the provisions of paragraphs (1), (2), and (3) of this subsection and exempt from the requirements to pay any tax or fee to the Post-closure Liability Fund under subchapter II of this chapter. (D) The President may issue such rules and take such other actions as are necessary to effectuate the purposes of this paragraph. (5) SUSPENSION OF LIABILITY TRANSFER.—Notwith- standing paragraphs (1), (2), (3), and (4) of this sub- section and subsection (j) of section 9611 of this title, no liability shall be transferred to or assumed by the Post- Closure Liability Trust Fund established by section 9641 of this title prior to completion of the study re- quired under paragraph (6) of this subsection, trans- mission of a report of such study to both Houses of Congress, and authorization of such a transfer or assumption by Act of Congress following receipt of such study and report. (6) STUDY OF OPTIONS FOR POST-CLOSURE PROGRAM.— (A) StuDy.—The Comptroller General shall conduct a study of options for a program for the management of the liabilities associated with hazardous waste treatment, storage, and disposal sites after their closure which complements the policies set forth in the Hazardous and Solid Waste Amendments of 1984 and assures the protection of human health and the environment. 44a (B) PROGRAM ELEMENTS.—The program referred to in subparagraph (A) shall be designed to assure each of the following: (i) Incentives are created and maintained for _ the safe management and disposal of hazardous wastes so as to assure protection of human health and the environment. (ii) Members of the public will have reasonable confidence that hazardous wastes will be managed and disposed of safely and that resources will be available to address any problems that may arise and to cover costs of long-term monitoring, care, and maintenance of such sites. (iii) Persons who are or seek to become owners and operators of hazardous waste disposal facilities will be able to manage their potential - future liabilities and to attract the investment capital necessary to build, operate, and close such facilities in a manner which assures protection of human health and the environment. (C) ASSESSMENTS.—The study under this paragraph shall include assessments of treatment, storage, and disposal facilities which have been or are likely to be issued a permit under section 3005 of the Solid Waste Disposal Act {42 U.S.C. 6925] and the likelihood of future insolvency on the part of owners and operators of such facilities. Separate assessments shall be made for different classes of facilities and for different classes of land disposal facilities and shall include but not be limited to— 45a (i) the current and future financial capa- bilities of facility owners and operators; (ii) the current and future costs associated with facilities, including the costs of routine moni- toring and maintenance, compliance monitoring, corrective action, natural resource damages, and liability for damages to third parties; and (iii) the availability of mechanisms by which owners and operators of such facilities can assure that current and future costs, including~ post- closure costs, will be financed. (D) PROCEDURES.—In carrying out the respon- sibilities of this paragraph, the Comptroller General shall consult with the Administrator, the Secretary of Commerce, the Secretary of the Treasury, and the heads of other appropriate Federal agencies. (E) CONSIDERATION OF OPTIONS.—In conducting the study under this paragraph, the Comptroller General shall consider various mechanisms and com- binations of mechanisms to complement the policies set forth in the Hazardous and Solid Waste Amendments of 1984 to serve the purposes set forth in subparagraph (B) and to assure that the current and future costs asso- ciated with hazardous waste facilities, including post- closure costs, will be adequately financed and, to the greatest extent possible, borne by the owners and operators of _such facilities. Mechanisms to be con- sidered include, but are not limited to— (i) revisions to closure, post-closure, and financial responsibility requirements under sub- 46a titles C and I of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq. and 6991 et seq. ]; (ii) voluntary risk pooling by owners and operators; (iii) legislation to require risk pooling by owners and operators; (iv) modification of the Post-Closure Liability Trust Fund previously established by section 9641 of this title, and the conditions for transfer of liability under this subsection, including limiting the transfer of some or all liability under this subsection only in the case of insolvency of owners and operators; 3 (v) private insurance; (vi) insurance provided by the Federal Govern- ment; (vii) coinsurance, reinsurance, or pooled-risk insurance, whether provided by the private sector or provided or assisted by the Federal Govern- ment; and (vili) creation of a new program to be admini- stered by a new or existing Federal agency or by a federally chartered corporation. (F) RECOMMENDATIONS.—The Comptroller General shall consider options for funding any pro- gram under this section and shall, to the extent _ necessary, make recommendations to the appro- 47a priate committees of Congress for additional authority to implement such program. (1) Federal lien (1) In general All costs and damages for which a person is liable to the United States under subsection (a) of this section (other than the owner or operator of a vessel under paragraph (1) of subsection (a) of this section) shall constitute a lien in favor of the United States upon all real property and rights to such property which— - (A) belong to such person; and (B) are subject to or affected by a removal or remedial action. (2) Duration The lien imposéd by this subsection shall arise at the later of the following: (A) The time costs are first incurred by the United States with respect to a response action under this chapter. (B) The time that the person referred to in paragraph (1) is provided (by certified or reg- istered mail) written notice of potential liability. Such lien shall continue until the liability for the costs (or a judgment against the person arising out of such liability) is satisfied or becomes unenforceable 48a through operation of the statute of limitations provided in section 9613 of this title. (3) Notice and validity The lien imposed by this subsection shall be subject to the rights of any purchaser, holder of a security interest, or judgment lien creditor whose interest is perfected under applicable State law before notice of the lien has been filed in the appropriate office within the State (or county or other governmental subdivision), as designated by State law, in which the real property subject to the lien is located. Any such purchaser, holder of a security interest, or judgment lien creditor shall be afforded the same protections against the lien imposed by this subsection as are afforded under State law against a judgment lien which arises out of an unsecured obligation and which arises as of the time of the filing of the notice of the lien imposed by this subsection. If the State has not by law designated one office for the receipt of such notices of liens, the notice shall be filed in the office of the clerk of the United States district court for the district in which the real property is located. For purposes of this subsection, the terms “purchaser” and “security interest” shall have the definitions provided under section 6323(h) of Title 26. (4) Action in rem The costs constituting the lien may be recovered in an action in rem in the United States district court for the district in which the removal or remedial action is occurring or has occurred. Nothing in this 49a subsection shall affect the right of the United States to bring an action against any person to recover all costs and damages for which such person is liable under subsection (a) of this section. (m) Maritime lien All costs and damages for which the owner or operator of a vessel is liable under subsection (a)(1) of this section with respect to a release or threatened release from such vessel shall constitute a maritime lien in favor of the United States on such vessel. Such costs may be recovered in an action in rem in the district court of the United States for the district in which the vessel may be found. Nothing in this subsection shall affect the right of the United States to bring an action against the owner or operator of such vessel in any court of competent jurisdiction to recover such costs. (n) Liability of fiduciaries (1) In general The liability of a fiduciary under any provision of this chapter for the release or threatened release of a hazardous substance at, from, or in connection with a vessel or facility held in a fiduciary capacity shall not exceed the assets held in the fiduciary capacity. (2) Exclusion Paragraph (1) does not apply to the extent that a person is liable under this chapter independently of the person’s ownership of a vessel or facility as a fiduciary or actions taken in a fiduciary capacity. (3) Limitation Paragraphs (1) and (4) do not limit the liability pertaining to-a release or threatened reiease of a hazardous substance if negligence of a fiduciary causes or contributes to the release or threatened release. (4) Safe harbor A fiduciary shall not be liable in its personal capacity under this chapter, for— (A) undertaking or directing another person to undertake a response action under subsection (d)(1) of this section or under the direction of an on scene coordinator designated under the National Contingency Plan; (B) undertaking or directing another person to undertake any other lawful means of addressing a hazardous substance in connection with the vessel or facility; (C) terminating the fiduciary relationship; (D) including in the terms of the fiduciary agreement a covenant, warranty, or other term or condition that relates to compliance with an environmental law, or monitoring, modifying or enforcing the term or condition; (E) monitoring or undertaking 1 or more inspections of the vessel or facility; : 5la (F) providing financial or other advice or counseling to other parties to the fiduciary relationship, including the settlor or beneficiary; (G) restructuring, renegotiating, or otherwise altering the terms and conditions of the fiduciary relationship; (H) administering, as a fiduciary, a vessel or facility that was contaminated before the fiduciary relationship began; or (1) declining to take any of the actions de- scribed in subparagraphs (B) through (H). (5) Definitions As used in this chapter: (A) Fiduciary The term “fiduciary” — (i) means a person acting for the benefit of another party as a bona fide— (1) trustee; (11) executor; (111) administrator; (IV) custodian; (V) guardian of estates or guardian ad litem; (VI) receiver; (VII) conservator; (VIII) committee of estates of incapacitated persons; (IX) personal representative; 52a (X) trustee (including a successor to a trustee) under an indenture agreement, trust agreement, lease, or similar financing agreement, for debt securities, certificates of interest or certificates of participation in debt securities, or other forms of in- debtedness as to which the trustee is not, in the capacity of trustee, the lender; or (XI) representative in any other capacity that the Administrator, after providing public notice, determines to be similar to the capacities described in subclauses (1) through (X); and (ii) does not include— (1) a person that is acting as a fiduciary with respect to a trust or other fiduciary estate that was organized for the primary purpose of, or is engaged in, actively carry- ing on a trade or business for profit, unless the trust or other fiduciary estate was created as part of, or to facilitate, 1 or more estate plans or because of the incapacity of a natural person; or (II) a person that acquires ownership or control of a vessel or facility with the ob- jective purpose of avoiding liability of the person or of any other person. (B) Fiduciary capacity The term “fiduciary capacity” means the capacity of a person in holding title to a vessel or facility, or otherwise having control of or an interest in the vessel or facility, pursuant to the exercise of the responsibilities of the person as a fiduciary. (6) Savings clause Nothing in this subsection— (A) affects the rights or immunities or other defenses that are available under this chapter or other law that is applicable to a person subject to this subsection; or (B) creates any liability for a person or a private right of action against a fiduciary or any other person. (7) No effect on certain persons Nothing in this subsection applies t a person if the person— (A)(i) acts in a capacity other than that of a fiduciary or in a beneficiary capacity; and _ (ii) in that capacity, directly or indirectly benefits from a trust or fiduciary relationship; or (B)(i) is a beneficiary and a fiduciary with respect to the same fiduciary estate; and (ii) as a fiduciary, receives benefits that exceed customary or reasonable compensation, and incidental benefits, permitted under other applicable law. (8) Limitation This subsection does not preclude a claim under this chapter against— (A) the assets of the estate or trust admini stered by the fiduciary; or (B) a nonemployee agent or independent contractor retained by a fiduciary. (0) De micromis exemption (1) In general Except as provided in paragraph (2), a person shall not be liable, with respect to response costs at a facility on the National Priorities List, under this chapter if liability is based solely on paragraph (3) or (4) of subsection (a), and the person, except as provided in paragraph (4) of this subsection, can demonstrate that— (A) the total amount of the material containing hazardous substances that the person arranged for disposal or treatment of, arranged with a trans- porter for transport for disposal or treatment of, or accepted for transport for disposal or treatment, at the facility was less than 110 gallons of liquid materials or less than 200 pounds of solid materials (or such greater or lesser amounts as the Admini- strator may determine by regulation); and (B) all or part of the disposal, treatment, or transport concerned occurred before April 1, 2001. (2) Exceptions Paragraph (1) shall not apply in a case in which— 55a (A) the President determines that— (i) the materials containing hazardous sub- stances referred to in paragraph (1) have con- tributed significantly or could contribute signi- ficantly, either individually or in the aggregate, to the cost of the response action or natural re- source restoration with respect to the facility; or (ii) the person has failed to comply with an information request or administrative subpoena issued by the President under this chapter or has impeded or is impeding, through action or inaction, the performance of a response action or natural resource restoration with respect to the facility; or (B) a person has been convicted of a criminal violation for the conduct to which the exemption would apply, and that conviction has not been vitiated on appeal or otherwise. (3) No judicial review A determination by the President under paragraph (2)(A) shall not be subject to judicial review. (4) NonGovernmental third-party contribution actions In the case of a contribution action, with respect to response costs at a facility on the Nationa! Priorities List, brought by a party, other than a Federal, State, or local govern- ment, under this chapter, the burden of proof 56a shall be on the party bringing the action to demonstrate that the conditions described in paragraph (1)(A) and (B) of this subsection are not met. (p) Municipal solid waste exemption (1) In general Except as provided in paragraph (2) of this sub- section, a person shall not be liable, with respect to response costs at a facility on the National Priorities List, under paragraph (3) of subsection (a) of this section for municipal solid waste disposed of at a facility if the person, except as provided in paragraph (5) of this subsection, can demonstrate that the person is— (A) an owner, operator, or lessee of residential property from which all of the person's municipal solid waste was generated with respect to the facility; (B) a business entity (including a parent, subsidiary, or affiliate of the entity) that, during its 3 taxable years preceding the date of transmittal of written notification from the President of its po- tential liability under this section, employed on average not more than 100 full-time individuals, or the equivalent thereof, and that is a small business concern (within the meaning of the Small Business Act (15 U.S.C. 631 et seq.)) from which was gen- erated all of the municipal solid waste attributable to the entity with respect to the facility; or (C) an organization described in section 501(c)(3) of Title 26 and exempt from tax under 57a section 501(a) of Title 26 that, during its taxable year preceding the date of transmittal of written notification from the President of its potential liability under this section, employed not more than 100 paid individuals at the location from which was generated all of the municipal solid waste attri- butable to the organization with respect to the facility. For purposes of this subsection, the term “affiliate” has the meaning of that term provided in the definition of “small business concern” in regulations promulgated by the Smal! Business Administration in accordance with the Small Business Act (15 U.S.C. 631 et seq.). (2) Exception Paragraph (1) shall not apply in a case in which the President determines that— (A) the municipal solid waste referred to in para- graph (1) has contributed significantly or could contri- bute significantly, either individually or in the aggre- gate, to the cost of the response action or natural resource restoration with respect to the facility; (B) the person has failed to comply with an information request or administrative subpoena issued by the President under this chapter; or (C) the person has impeded or is impeding, through action or inaction, the performance of a response action or natural resource restoration with respect to the facility. (3) No judicial review A determination by the President under paragraph (2) shall not be subject to judicial review. 58a (4) Definition of municipal solid waste (A) In general For purposes of this subsection, the term “municipal solid waste” means waste material— (i) generated by a household (including a single or multifamily residence); and (ii) generated by a commercial, industrial, or institutional entity, to the extent that the waste material— (I) is essentially the same as waste normally generated by a household; (II) is collected and disposed of with other municipal solid waste as part of norma! municipal solid waste collection services; and (III) contains a relative quantity of hazardous substances no greater than the relative quantity of hazardous substances contained in waste material generated by a typical single-family household. (B) Examples Examples of municipal solid waste under sub- paragraph (A) include food and yard waste, paper, clothing, appliances, consumer product packaging, disposable diapers, office supplies, cosmetics, glass and metal food containers, elementary or secondary school science laboratory waste, and household hazardous waste. (C) Exclusions The term “municipal solid waste” does not include— 59a (i) combustion ash generated by resource recovery facilities or municipal incinerators; or (ii) waste material from manvfacturing or pro- cessing operations (including pollution control operations) that is not essentially the same as waste normally generated by households. (5) Burden of proof In the case of an action, with respect to response costs at a facility on the National Priorities List, brought under this section or section 9613 of this title by— (A) a party, other than a Federal, State, or local government, with respect to municipal solid waste disposed of on or after April 1, 2001; or (B) any party with respect to municipal solid waste disposed of before April 1, 2001, the burden of proof shall be on the party bringing the action to demonstrate that the conditions described in paragraphs (1) and (4) for exemption for entities and organizations described in paragraph (1)(B) and (C) are not met. (6) Certain actions not permitted No contribution action may be brought by a party, other than a Federal, State, or local government, under this chapter with respect to circumstances described in paragraph (1)(A). (7) Costs and fees A nongovernmental entity that commences, after the date of the enactment of this subsection, a contribution action under this chapter shall be liable to 60a the defendant for all reasonable costs of defending the action, including all reasonable attorney's fees and expert witness fees, if the defendant is not liable for contribution based on an exemption under this subsection or subsection (0) of this section. (q) Contiguous properties (1) Not considered to be an owner or operator (A) In general A person that owns real property that is contiguous to or otherwise similarly situated with respect to, and that is or may be contaminated by a release or threatened release of a hazardous substance from, real property that is not owned by that person shall not be considered to be an owner or operator. of a vessel or facility under paragraph (1) or (2) of subsection (a) solely by reason of the contamination if— (i) the person did not cause, contribute, or consent to the release or threatened release; (ii) the person is not— (I) potentially liable, or affiliated with any other person that is potentially liable, for response costs at a facility through any direct or indirect familial relationship or any contractual, corporate, or financial relationship (other than a contractual, corporate, or financial relationship - that is created by a contract for the sale of goods or services); or (II) the result of a reorganization of a business entity that was potentially liable; (iii) the person takes reasonable steps to— 6la (1) stop any continuing release; (Il) prevent any threatened future release; and (III) prevent or limit human, environmental, or natural resource exposure to any hazardous substance released on or from property owned by that person; (iv) the person provides full cooperation, assis- tance, and access to persons that are authorized to conduct response actions or natural resource restoration at the vessel or facility from which there has been a release or threatened release (in- cluding the cooperation and access necessary for the installation, integrity, operation, and main- tenance of any complete or partial response action or natural resource restoration at the vessel or facility); (v) the person— (1) is in compliance with any land use restric- tions established or relied on in connection with the response action at the facility; and (II) does not impede the effectiveness or integrity of any institutional control employed in connection with a response action; (vi) the person is in compliance with any request for information or administrative subpoena issued by the President under this chapter; (vii) the person provides all legally required notices with respect to the discovery or release of any hazardous substances at the facility; and 62a (viii) At the time at which the person acquired the property, the person (1) conducted all appropriate inquiry within the meaning of section 9601(35)(B) of this title with respect to the property; and (II) did not know or have reason to know that the property was or could be contaminated by a release or threatened release of one or more hazardous substances from other real property not owned or operated by the person. (B) Demonstration To qualify as a person described in subparagraph (A), a person must establish by a preponderance of the evidence that the conditions in clauses (i) through (viii) of subparagraph (A) have been met. (C) Bona fide prospective purchaser Any person that does not qualify as a person described in this paragraph because the person had, or had reason to have, knowledge specified in subparagraph (A)(viii) at the time of acquisition of the real property may qualify as a bona fide prospective purchaser under section 9601(40) of this title if the person is otherwise described in that section. (D) Ground water With respect to a hazardous substance from one or more sources that are not on the property of a person that is a contiguous property owner that enters ground water beneath the property of the person solely as a result of subsurface migration in 2 63a an aquifer, subparagraph (A)(iii) shall not require the person to conduct ground water investigations or to install ground water remediation systems, except in accordance with the policy of the Environmental Protection Agency concerning owners of property containing contaminated aquifers, dated May 24, 1995. (2) Effect of law With respect to a person described in this subsection, nothing in this subsection— (A) limits any defense to liability that may be available to the person under any other provision of law; or (B) imposes liability on the person that is not otherwise imposed by subsection (a) of this section. (3) Assurances Tne Administrator may— (A) issue an assurance that no enforcement action under this chapter will be initiated against a person described in paragraph (1); and (B) grant a person described in paragraph (1) protection against a cost recovery or contribution action under section 9613(f) of this title. (r) Prospective purchaser and windfall lien (1) Limitation on liability Notwithstanding subsection (a)(1) of this section, a bona fide prospective purchaser whose potential liability for a release or threatened release is based solely on the purchaser's being considered to be an owner or operator of a facility shall not be liable as 64a long as the bona fide prospective purchaser does not impede the performance of a response action or natural resource restoration. (2) Lien If there are unrecovered response costs incurred by the United States at a facility for which an owner of the facility is not liable by reason of paragraph (1), and if each of the conditions described in paragraph (3) is met, the United States shall have a lien on the facility, or may by agreement with the owner, obtain from the owner a lien on any other property or other assurance of payment satisfactory to the Administrator, for the unrecovered response costs. — (3) Conditions The conditions referred to in paragraph (2) are the following: (A) Response action _ A response action for which there are unrecovered costs of the United States is carried out at the facility. (B) Fair market value The response action increases the fair market value of the facility above the fair market value of the facility that existed before the response action was initiated. (4) Amount; duration A lien under paragraph (2)— (A) shall be in an amount not to exceed the increase in fair market value of the property 65a attributable to the response action at the time of a sale or other disposition of the property; (B) shall arise at the time at which costs are first incurred by the United States with respect to a response action at the facility; (C) shall be subject to the requirements of subsection (1)(3); and (D) shall continue until the earlier of— (i) satisfaction of the lien by sale or other means; or (ii) notwithstanding any statute of limitations under section 9613 of this tile, recovery of all response costs incurred at the facility. 2. 42 U.S.C. 9613 provides: 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 enforce- ment or to obtain damages or recovery of response costs. (b) Jurisdiction; venue 66a 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 pur- poses 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 of this chapter, or to the review of any regulation promulgated under Title 26. (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 there- with, 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 67a 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 accor- dance 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 approp- riate. 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. 68a (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 com- menced within 3 years after the completion of the remedial action (excluding operation and maintenance 69a activities) in lieu of the dates referred to in subpara- graph (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 respon- sible 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 vears 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. 70a 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 main- tained 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 commeneed 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(¢) 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 Tla 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 sub- section, where a payment pursuant to an indemnifi- cation 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 potentiaily respon- sible 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 ap- pointed for such minor, or (B) against an incompetent person until the earlier of the date on which such incompetent's in- competency ends or the date on which a legal representative is duly appointed for such incom- petent. (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 72a 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.A. § 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 73a — shows that the person’s interest is adequately repre- sented 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. Other- wise 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 Presi- dent's decision in selecting the response action unless the objecting party can demonstrate, on the admini- strative 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 74a 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 respon- sible parties, in the development of the admini- strative record on which the President will base the selection of remedial actions and on which judicial review of remedial actions will be based. The pro- cedures developed under this subparagraph shall include, at a minimum, each of the following: 75a (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 parti- cipation). (iv) A response to each of the significant com- ments, 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 admini- strative 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 regu lations 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 part- icipation of interested parties and the public. The development of an administrative record and the 76a 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 con- strued to be a defense to liability. 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