§ 9628. State response programs
(a)
Assistance to States
(1)
In general
(A)
States
The Administrator may award a grant to a State or Indian tribe that—
(B)
Use of grants by States
(i)
In general
A State or Indian tribe may use a grant under this subsection to establish or enhance the response program of the State or Indian tribe.
(2)
Elements
The elements of a State or Indian tribe response program referred to in paragraph (1)(A)(i) are the following:
(B)
Oversight and enforcement authorities or other mechanisms, and resources, that are adequate to ensure that—
(C)
Mechanisms and resources to provide meaningful opportunities for public participation, including—
(i)
public access to documents that the State, Indian tribe, or party conducting the cleanup is relying on or developing in making cleanup decisions or conducting site activities;
(b)
Enforcement in cases of a release subject to State program
(1)
Enforcement
(A)
In general
Except as provided in subparagraph (B) and subject to subparagraph (C), in the case of an eligible response site at which—
(i)
there is a release or threatened release of a hazardous substance, pollutant, or contaminant; and
(ii)
a person is conducting or has completed a response action regarding the specific release that is addressed by the response action that is in compliance with the State program that specifically governs response actions for the protection of public health and the environment,
the President may not use authority under this chapter to take an administrative or judicial enforcement action under section
9606
(a) of this title or to take a judicial enforcement action to recover response costs under section
9607
(a) of this title against the person regarding the specific release that is addressed by the response action.
(B)
Exceptions
The President may bring an administrative or judicial enforcement action under this chapter during or after completion of a response action described in subparagraph (A) with respect to a release or threatened release at an eligible response site described in that subparagraph if—
(i)
the State requests that the President provide assistance in the performance of a response action;
(ii)
the Administrator determines that contamination has migrated or will migrate across a State line, resulting in the need for further response action to protect human health or the environment, or the President determines that contamination has migrated or is likely to migrate onto property subject to the jurisdiction, custody, or control of a department, agency, or instrumentality of the United States and may impact the authorized purposes of the Federal property;
(iii)
after taking into consideration the response activities already taken, the Administrator determines that—
(iv)
the Administrator, after consultation with the State, determines that information, that on the earlier of the date on which cleanup was approved or completed, was not known by the State, as recorded in documents prepared or relied on in selecting or conducting the cleanup, has been discovered regarding the contamination or conditions at a facility such that the contamination or conditions at the facility present a threat requiring further remediation to protect public health or welfare or the environment. Consultation with the State shall not limit the ability of the Administrator to make this determination.
(C)
Public record
The limitations on the authority of the President under subparagraph (A) apply only at sites in States that maintain, update not less than annually, and make available to the public a record of sites, by name and location, at which response actions have been completed in the previous year and are planned to be addressed under the State program that specifically governs response actions for the protection of public health and the environment in the upcoming year. The public record shall identify whether or not the site, on completion of the response action, will be suitable for unrestricted use and, if not, shall identify the institutional controls relied on in the remedy. Each State and tribe receiving financial assistance under subsection (a) of this section shall maintain and make available to the public a record of sites as provided in this paragraph.
(D)
EPA notification
(i)
In general
In the case of an eligible response site at which there is a release or threatened release of a hazardous substance, pollutant, or contaminant and for which the Administrator intends to carry out an action that may be barred under subparagraph (A), the Administrator shall—
(E)
Report to Congress
Not later than 90 days after the date of initiation of any enforcement action by the President under clause (ii), (iii), or (iv) of subparagraph (B), the President shall submit to Congress a report describing the basis for the enforcement action, including specific references to the facts demonstrating that enforcement action is permitted under subparagraph (B).
(2)
Savings provision
(A)
Costs incurred prior to limitations
Nothing in paragraph (1) precludes the President from seeking to recover costs incurred prior to January 11, 2002, or during a period in which the limitations of paragraph (1)(A) were not applicable.
(B)
Effect on agreements between States and EPA
Nothing in paragraph (1)—
(i)
modifies or otherwise affects a memorandum of agreement, memorandum of understanding, or any similar agreement relating to this chapter between a State agency or an Indian tribe and the Administrator that is in effect on or before January 11, 2002 (which agreement shall remain in effect, subject to the terms of the agreement); or
(c)
Effect on Federal laws
Nothing in this section affects any liability or response authority under any Federal law, including—