[Code of Federal Regulations]
[Title 40 Volume 25]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR307.21]

[Page 364-365]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 307--COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY 
ACT (CERCLA) CLAIMS PROCEDURES--Table of Contents
 
    Subpart B--Eligible Claimants; Allowable Claims; Preauthorization
 
Sec. 307.21  Nature of eligible claims.

    (a) Claims may be asserted against the Fund for necessary costs 
incurred for response actions due to a release or substantial threat of 
release of a hazardous substance into the environment; a release or 
substantial threat of release of pollutants or contaminants into the 
environment that may present an imminent or substantial danger to public 
health or welfare; or actions taken by a potentially responsible party 
subject to an agreement reached pursuant to section 122(b)(1) of CERCLA. 
Claims must be filed in accordance with Sec. 307.22. Claims may be 
asserted for the costs of removal actions, remedial planning activities, 
and remedial actions.
    (b) Costs will be considered to be eligible under this section if:
    (1) The response action is preauthorized by EPA pursuant to 
Sec. 307.22;
    (2) The costs are incurred for activities within the scope of EPA's 
preauthorization;
    (3) The response action is conducted in a manner consistent with the 
NCP; and
    (4) The costs incurred are necessary costs pursuant to Sec. 307.11 
of this part.
    (c)Money in the Fund may be used for paying any claim under this 
section for expenses incurred for the payment of contractor claims 
either through settlement of such claims or an award by a third party to 
the extent EPA determines that:
    (1) The contractor claim arose from work within the scope of the 
contract at issue and the contract was for preauthorized response 
activities;
    (2) The contractor claim is meritorious;
    (3) The contractor claim was not caused by the mismanagement of the 
claimant;
    (4) The contractor claim was not caused by the claimant's vicarious 
liability for the improper actions of others;
    (5) The claimed amount is reasonable and necessary;
    (6) The claim for such costs is filed by the claimant within 5 years 
of completion of the preauthorized response action; and
    (7) Payment of such a claim will not result in total payments from 
the Fund in excess of the maximum amount for which claims were 
preauthorized.
    (d) An award by a third party on a contractor claim under paragraph 
(c) of this section should include:
    (1) Findings of fact;
    (2) Conclusions of law;
    (3) Allocation of responsibility for each issue;
    (4) Basis for the amount of award; and
    (5) The rationale for the decision.

[[Page 365]]

    (e) Money in the Fund may not be used for paying any claim under 
this section for expenses incurred for procurement transactions that 
were not conducted in a manner that provided to the maximum extent 
practicable, open and free competition; unduly restricted or eliminated 
competition; and did not provide where applicable for the award of 
contracts to the lowest responsive, responsible bidder where the 
selection was made principally on the basis of price.
    (f) Money in the Fund may not be used for paying any claim under 
this section for expenses incurred by a person operating pursuant to a 
procurement contract or assistance agreement with the United States.
    (g) Money in the Fund may not be used for paying any claim under 
this section for expenses incurred for the payment of persons who are on 
the ``List of Parties Excluded From Federal Procurement or Non-
Procurement'' at the time the contract is awarded, unless EPA approval 
is obtained in advance.
    (h) Unless EPA waives this requirement prior to the award of a 
construction contract, money in the Fund may not be used for paying any 
claim under this section for expenses incurred under such a construction 
contract that does not contain a ``differing site conditions'' clause 
equivalent to the following:
    (1) The contractor shall promptly, and before such conditions are 
disturbed, notify the claimant in writing of:
    (i) Subsurface or latent physical conditions at the site differing 
materially from those listed in this contract, or
    (ii) Unknown physical conditions at the site, of an unusual nature, 
differing materially from those ordinarily encountered and generally 
recognized as inherent in work of the character provided for in this 
contract.
    (2) Upon notification by the construction contractor, the claimant 
shall promptly investigate the conditions. If the claimant finds that 
conditions materially differ and will cause an increase or decrease in 
the contractor's cost or the time required to perform any part of the 
work under its contract, whether or not changed as a result of such 
conditions, the claimant shall make an equitable adjustment and modify 
the contract in writing.
    (3) No claim of the contractor under the differing site conditions 
clause shall be allowed unless the contractor has given the notice 
required in paragraph (h)(1) of this section. However, the claimant may 
extend the time prescribed in paragraph (h)(1) of this section.
    (4) No claim by the contractor for an equitable adjustment shall be 
allowed if asserted after final payment under this contract.
    (i) Where money in the Fund has been used to pay for any response 
costs under this section, no other claim may be paid out of the Fund for 
the same costs.