42 U.S.C. § 9605

National contingency plan

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(a) Revision and republicationWithin one hundred and eighty days after December 11, 1980, the President shall, after notice and opportunity for public comments, revise and republish the national contingency plan for the removal of oil and hazardous substances, originally prepared and published pursuant to section 1321 of title 33, to reflect and effectuate the responsibilities and powers created by this chapter, in addition to those matters specified in section 1321(c)(2) 11 See References in Text note below. of title 33. Such revision shall include a section of the plan to be known as the national hazardous substance response plan which shall establish procedures and standards for responding to releases of hazardous substances, pollutants, and contaminants, which shall include at a minimum:(1) methods for discovering and investigating facilities at which hazardous substances have been disposed of or otherwise come to be located;(2) methods for evaluating, including analyses of relative cost, and remedying any releases or threats of releases from facilities which pose substantial danger to the public health or the environment;(3) methods and criteria for determining the appropriate extent of removal, remedy, and other measures authorized by this chapter;(4) appropriate roles and responsibilities for the Federal, State, and local governments and for interstate and nongovernmental entities in effectuating the plan;(5) provision for identification, procurement, maintenance, and storage of response equipment and supplies;(6) a method for and assignment of responsibility for reporting the existence of such facilities which may be located on federally owned or controlled properties and any releases of hazardous substances from such facilities;(7) means of assuring that remedial action measures are cost-effective over the period of potential exposure to the hazardous substances or contaminated materials;(8)(A) criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action. Criteria and priorities under this paragraph shall be based upon relative risk or danger to public health or welfare or the environment, in the judgment of the President, taking into account to the extent possible the population at risk, the hazard potential of the hazardous substances at such facilities, the potential for contamination of drinking water supplies, the potential for direct human contact, the potential for destruction of sensitive ecosystems, the damage to natural resources which may affect the human food chain and which is associated with any release or threatened release, the contamination or potential contamination of the ambient air which is associated with the release or threatened release, State preparedness to assume State costs and responsibilities, and other appropriate factors;(B) based upon the criteria set forth in subparagraph (A) of this paragraph, the President shall list as part of the plan national priorities among the known releases or threatened releases throughout the United States and shall revise the list no less often than annually. Within one year after December 11, 1980, and annually thereafter, each State shall establish and submit for consideration by the President priorities for remedial action among known releases and potential releases in that State based upon the criteria set forth in subparagraph (A) of this paragraph. In assembling or revising the national list, the President shall consider any priorities established by the States. To the extent practicable, the highest priority facilities shall be designated individually and shall be referred to as the “top priority among known response targets”, and, to the extent practicable, shall include among the one hundred highest priority facilities one such facility from each State which shall be the facility designated by the State as presenting the greatest danger to public health or welfare or the environment among the known facilities in such State. A State shall be allowed to designate its highest priority facility only once. Other priority facilities or incidents may be listed singly or grouped for response priority purposes;(9) specified roles for private organizations and entities in preparation for response and in responding to releases of hazardous substances, including identification of appropriate qualifications and capacity therefor and including consideration of minority firms in accordance with subsection (f); and(10) standards and testing procedures by which alternative or innovative treatment technologies can be determined to be appropriate for utilization in response actions authorized by this chapter.The plan shall specify procedures, techniques, materials, equipment, and methods to be employed in identifying, removing, or remedying releases of hazardous substances comparable to those required under section 1321(c)(2)(F) and (G) and (j)(1) of title 33. Following publication of the revised national contingency plan, the response to and actions to minimize damage from hazardous substances releases shall, to the greatest extent possible, be in accordance with the provisions of the plan. The President may, from time to time, revise and republish the national contingency plan.(b) Revision of plan

Not later than 18 months after the enactment of the Superfund Amendments and Reauthorization Act of 1986 [October 17, 1986], the President shall revise the National Contingency Plan to reflect the requirements of such amendments. The portion of such Plan known as “the National Hazardous Substance Response Plan” shall be revised to provide procedures and standards for remedial actions undertaken pursuant to this chapter which are consistent with amendments made by the Superfund Amendments and Reauthorization Act of 1986 relating to the selection of remedial action.

Not later than 18 months after October 17, 1986, and after publication of notice and opportunity for submission of comments in accordance with section 553 of title 5, the President shall by rule promulgate amendments to the hazard ranking system in effect on September 1, 1984. Such amendments shall assure, to the maximum extent feasible, that the hazard ranking system accurately assesses the relative degree of risk to human health and the environment posed by sites and facilities subject to review. The President shall establish an effective date for the amended hazard ranking system which is not later than 24 months after October 17, 1986. Such amended hazard ranking system shall be applied to any site or facility to be newly listed on the National Priorities List after the effective date established by the President. Until such effective date of the regulations, the hazard ranking system in effect on September 1, 1984, shall continue in full force and effect.

(2) Health assessment of water contamination risks

In carrying out this subsection, the President shall ensure that the human health risks associated with the contamination or potential contamination (either directly or as a result of the runoff of any hazardous substance or pollutant or contaminant from sites or facilities) of surface water are appropriately assessed where such surface water is, or can be, used for recreation or potable water consumption. In making the assessment required pursuant to the preceding sentence, the President shall take into account the potential migration of any hazardous substance or pollutant or contaminant through such surface water to downstream sources of drinking water.

(3) Reevaluation not required

The President shall not be required to reevaluate, after October 17, 1986, the hazard ranking of any facility which was evaluated in accordance with the criteria under this section before the effective date of the amendments to the hazard ranking system under this subsection and which was assigned a national priority under the National Contingency Plan.

(4) New information

Nothing in paragraph (3) shall preclude the President from taking new information into account in undertaking response actions under this chapter.

(d) Petition for assessment of release

Any person who is, or may be, affected by a release or threatened release of a hazardous substance or pollutant or contaminant, may petition the President to conduct a preliminary assessment of the hazards to public health and the environment which are associated with such release or threatened release. If the President has not previously conducted a preliminary assessment of such release, the President shall, within 12 months after the receipt of any such petition, complete such assessment or provide an explanation of why the assessment is not appropriate. If the preliminary assessment indicates that the release or threatened release concerned may pose a threat to human health or the environment, the President shall promptly evaluate such release or threatened release in accordance with the hazard ranking system referred to in paragraph (8)(A) of subsection (a) to determine the national priority of such release or threatened release.

(e) Releases from earlier sites

Whenever there has been, after January 1, 1985, a significant release of hazardous substances or pollutants or contaminants from a site which is listed by the President as a “Site Cleaned Up To Date” on the National Priorities List (revised edition, December 1984) the site shall be restored to the National Priorities List, without application of the hazard ranking system.

(f) Minority contractors

In awarding contracts under this chapter, the President shall consider the availability of qualified minority firms. The President shall describe, as part of any annual report submitted to the Congress under this chapter, the participation of minority firms in contracts carried out under this chapter. Such report shall contain a brief description of the contracts which have been awarded to minority firms under this chapter and of the efforts made by the President to encourage the participation of such firms in programs carried out under this chapter.

(g) Special study wastes(1) ApplicationThis subsection applies to facilities—(A) which as of October 17, 1986, were not included on, or proposed for inclusion on, the National Priorities List; and(B) at which special study wastes described in paragraph (2), (3)(A)(ii) or (3)(A)(iii) of section 6921(b) of this title are present in significant quantities, including any such facility from which there has been a release of a special study waste.(2) Considerations in adding facilities to NPLPending revision of the hazard ranking system under subsection (c), the President shall consider each of the following factors in adding facilities covered by this section to the National Priorities List:(A) The extent to which hazard ranking system score for the facility is affected by the presence of any special study waste at, or any release from, such facility.(B) Available information as to the quantity, toxicity, and concentration of hazardous substances that are constituents of any special study waste at, or released from such facility, the extent of or potential for release of such hazardous constituents, the exposure or potential exposure to human population and the environment, and the degree of hazard to human health or the environment posed by the release of such hazardous constituents at such facility. This subparagraph refers only to available information on actual concentrations of hazardous substances and not on the total quantity of special study waste at such facility.(3) Savings provisions

Nothing in this subsection shall be construed to limit the authority of the President to remove any facility which as of October 17, 1986, is included on the National Priorities List from such List, or not to list any facility which as of such date is proposed for inclusion on such list.

(4) Information gathering and analysis

Nothing in this chapter shall be construed to preclude the expenditure of monies from the Fund for gathering and analysis of information which will enable the President to consider the specific factors required by paragraph (2).

(h) NPL deferral(1) Deferral to State voluntary cleanupsAt the request of a State and subject to paragraphs (2) and (3), the President generally shall defer final listing of an eligible response site on the National Priorities List if the President determines that—(A) the State, or another party under an agreement with or order from the State, is conducting a response action at the eligible response site—(i) in compliance with a State program that specifically governs response actions for the protection of public health and the environment; and(ii) that will provide long-term protection of human health and the environment; or(B) the State is actively pursuing an agreement to perform a response action described in subparagraph (A) at the site with a person that the State has reason to believe is capable of conducting a response action that meets the requirements of subparagraph (A).(2) Progress toward cleanup

If, after the last day of the 1-year period beginning on the date on which the President proposes to list an eligible response site on the National Priorities List, the President determines that the State or other party is not making reasonable progress toward completing a response action at the eligible response site, the President may list the eligible response site on the National Priorities List.

(3) Cleanup agreementsWith respect to an eligible response site under paragraph (1)(B), if, after the last day of the 1-year period beginning on the date on which the President proposes to list the eligible response site on the National Priorities List, an agreement described in paragraph (1)(B) has not been reached, the President may defer the listing of the eligible response site on the National Priorities List for an additional period of not to exceed 180 days if the President determines deferring the listing would be appropriate based on—(A) the complexity of the site;(B) substantial progress made in negotiations; and(C) other appropriate factors, as determined by the President.(4) ExceptionsThe President may decline to defer, or elect to discontinue a deferral of, a listing of an eligible response site on the National Priorities List if the President determines that—(A) deferral would not be appropriate because the State, as an owner or operator or a significant contributor of hazardous substances to the facility, is a potentially responsible party;(B) the criteria under the National Contingency Plan for issuance of a health advisory have been met; or(C) the conditions in paragraphs (1) through (3), as applicable, are no longer being met.(Pub. L. 96–510, title I, § 105, Dec. 11, 1980, 94 Stat. 2779; Pub. L. 99–499, title I, § 105, Oct. 17, 1986, 100 Stat. 1625; Pub. L. 107–118, title II, § 232, Jan. 11, 2002, 115 Stat. 2379.)Editorial NotesReferences in Text

This chapter, referred to in subsecs. (a), (b), (c)(4), (f), and (g)(4), was in the original “this Act”, meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, 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 section 9601 of this title and Tables.

Section 1321(c)(2) of title 33, referred to in subsec. (a), was amended generally by Pub. L. 101–380, title IV, § 4201(a), Aug. 18, 1990, 104 Stat. 523. Prior to general amendment, subsec. (c)(2) related to preparation of a National Contingency Plan. Provisions relating to a National Contingency Plan are contained in section 1321(d) of Title 33, Navigation and Navigable Waters.

Such amendments and the amendments made by the Superfund Amendments and Reauthorization Act of 1986, referred to in subsec. (b), are the amendments made by Pub. L. 99–499, Oct. 17, 1986, 100 Stat. 1613. For complete classification of this Act to the Code, see Short Title of 1986 Amendment note set out under section 9601 of this title and Tables.

Amendments

2002—Subsec. (h). Pub. L. 107–118 added subsec. (h).

1986—Subsec. (a). Pub. L. 99–499, § 105(a)(1), designated existing provisions as subsec. (a) and added heading.

Subsec. (a)(8)(A). Pub. L. 99–499, § 105(a)(2), inserted “the damage to natural resources which may affect the human food chain and which is associated with any release or threatened release, the contamination or potential contamination of the ambient air which is associated with the release or threatened release,” after “ecosystems,”.

Subsec. (a)(8)(B). Pub. L. 99–499, § 105(a)(3), struck out “at least four hundred of” after “To the extent practicable,”, substituted “one hundred highest priority facilities” for “one hundred highest priority facilities at least”, and inserted “A State shall be allowed to designate its highest priority facility only once.”

Subsec. (a)(9). Pub. L. 99–499, § 105(a)(4), inserted “and including consideration of minority firms in accordance with subsection (f)”.

Subsec. (a)(10). Pub. L. 99–499, § 105(a)(5), added par. (10).

Subsecs. (b) to (g). Pub. L. 99–499, § 105(b), added subsecs. (b) to (g).

Notes of Decisions

Cited in 351 cases (20 in the last 5 years), 1982–2026 · leading case: Chevron Mining Inc. v. United States, 863 F.3d 1261 (10th Cir. 2017).

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Chevron Mining Inc. v. United States, 863 F.3d 1261 (10th Cir. 2017). · cites it 6× “Both before and after the Environmental Protection Agency (EPA)’s 2011 decision to place the Ques-ta Site on the National Priorities List (NPL), see 42 U.S.C. § 9605 (a)(8), Chevron acknowledged its status as a PRP strictly liable for the hazardous substances contaminating the…”

Genuine Parts Co. v. Envtl. Prot. Agency, 890 F.3d 304 (D.C. Cir. 2018). · cites it 5× “See 42 U.S.C. § 9605 (a)(8)(A). Sites listed on the NPL are eligible for CERCLA-funded remedial action through EPA's "Superfund program.”

Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108 (Wis. 2003). · cites it 4× “95-1796 & 95-2591, unpublished slip op. at 15-16 (Wis.”

United States v. Reilly Tar & Chem. Corp., 546 F. Supp. 1100 (D. Minnesota 1982). · cites it 6× “42 U.S.C. § 9605 . The legislative history of the Act deserves some comment.”

Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004). · cites it 2× “[2] The national contingency plan specifies procedures for preparing and responding to contaminations and was promulgated by the Environmental Protection Agency (EPA) pursuant to CERCLA § 105, 42 U. S. C. § 9605 (2000 ed. and Supp. I).”

Artesian Water Co. v. Gov't of New Castle Cnty., 659 F. Supp. 1269 (D. Del. 1987). · cites it 4× “Removal or remedial actions taken by the federal government, state governments, and private parties are to be conducted within guidelines established by the EPA’s National Contingency Plan, 10 promulgated pursuant to section 105 of CERCLA, 42 U.S.C. § 9605 . In the instant case,…”

Pierson Sand & Gravel, Inc. v. Keeler Brass Co., 596 N.W.2d 153 (Mich. 1999). · cites it 4× “[5] The National Contingency Plan is described at 42 USC § 9605 and is set forth at 40 CFR Part 300, et seq.”

Lone Pine Steering Comm. v. United States Env't Prot. Agency, 600 F. Supp. 1487 (D.N.J. 1985). · cites it 6× “The National Contingency Plan required by Section 105, 42 U.S.C. § 9605 (“NCP”) guides these response activities.”

Wickland Oil Terminals, a California Corp. v. Asarco, Inc., a New Jersey Corp., & State Lands Comm'n of California, 792 F.2d 887 (9th Cir. 1986). · cites it 3× “See generally 42 U.S.C. § 9605 (8)(B). Wickland brought suit in district court against Asarco and the Commission under CERCLA, 42 U.”

Key Tronic Corp. v. United States, 511 U.S. 809 (1994). · cites it 2× “[4] The EPA promulgated the national contingency plan as a regulation pursuant to CERCLA § 105, 42 U. S. C.§ 9605. It is codified at 40 CFR pt.”

United States v. E.I. DuPont De Nemours & Co., 432 F.3d 161 (3rd Cir. 2005). · cites it 3× “See 42 U.S.C. § 9605 (a)(8)(B) (establishing the National Priorities List).”

California Dep't of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028 (C.D. Cal. 2002). · cites it 2× “1986) (noting that inconsistency with the NCP’s cost-effectiveness provision, 42 U.S.C. § 9605 (7), is an acceptable defense to a CERCLA cost recovery action).”

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— 42 U.S.C. § 9605(a) — 1 case

Ohio v. U.S. Env't Prot. Agency, 838 F.2d 1325 (D.C. Cir. 1988).

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