[Code of Federal Regulations]
[Title 40, Volume 27]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR307.42]

[Page 373-380]
 
                   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 D_Payments and Subrogation
 
Sec.  307.42  Fund's obligation in the event of failure of remedial 
actions taken pursuant to CERCLA section 122.

    (a) In the case of the failure of a completed remedial action taken 
by a potentially responsible party pursuant to a remedial action 
preauthorized in connection with a settlement under section 122(b)(1) of 
CERCLA, the Fund shall be available for the costs of any new cleanup 
required, but shall not be obligated to a proportion exceeding that 
proportion contributed by the Fund for the original remedial action.
    (b) The Fund is not obligated by preauthorization of a response 
action to reimburse the claimant for subsequent remedial actions if 
those subsequent remedial actions are necessary as a result of the 
failure of the claimant, his employees or agents, or any third party 
having a contractual relationship with the claimant to properly perform 
authorized activities or otherwise comply with the terms and conditions 
of the PDD, and the Consent Decree or order regarding the site cleanup 
entered into by EPA and the claimant.

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  Appendix A to Part 307--Application for Preauthorization of a CERCLA 
                             Response Action
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        Appendix B to Part 307--Claim for CERCLA Response Action
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 Appendix C to Part 307--Notice of Limitations on the Payment of Claims 
  for Response Actions, Which Is To Be Placed in the Federal Register 
           Preamble Whenever Sites Are Added to the Final NPL

    Limitations on the Payment of Claims for Response Actions
    Sections 111(a)(2) and 122(b)(1) of CERCLA authorize the Fund to 
reimburse certain parties for necessary costs of performing a response 
action. As is described in more detail at 58 FR 5460, Jan. 21, 1993, 40 
CFR part 307, there are two major limitations placed on the payment of 
claims for response actions. First, only private parties, certain 
potentially responsible parties (including States and political 
subdivisions), and certain foreign entities are eligible to file such 
claims. Second, all response actions under sections 111(a)(2) and 
122(b)(1) must receive prior approval, or ``preauthorization,'' from 
EPA.

 Appendix D to Part 307--Notice of Limitations on the Payment of Claims 
      for Response Actions Which Is To Be Placed in Public Dockets

  Statutory Limitations on the Payment of Claims for Response Actions 
      Filed Pursuant to Sections 111(a)(2) and 122(b)(1) of CERCLA

    The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments 
and Reauthorization Act of 1986 (SARA) (42 U.S.C. 9601 et seq.) 
authorizes a number of mechanisms for responding to a release, or threat 
of release, of hazardous substances or pollutants or contaminants. One 
of these mechanisms is response claims. Section 111(a)(2) of CERCLA 
authorizes the Environmental Protection Agency (EPA or the Agency) to 
compensate claimants for necessary response costs if certain conditions 
are met. Section 122(b)(1) of CERCLA authorizes EPA to reimburse certain 
potentially responsible parties for a portion of the costs of response 
actions conducted pursuant to a settlement agreement. These conditions 
are outlined below.
    First, only private parties, parties to section 122(b)(1) agreements 
(including States and political subdivisions thereof) and foreign 
entities are eligible for payment through the response claims mechanism. 
Federal, State, and local government units, and Indian Tribes can 
receive funding for response activities through other authorities of 
section 111(a) or section 123 of CERCLA.
    Second, eligible claimants can only be reimbursed for costs that are 
incurred in carrying out the National Contingency Plan (NCP), 40 CFR 
part 300. In order to be in conformity with the NCP, all claims must 
receive prior approval, or ``preauthorization,'' from EPA. This means 
that before response work is initiated, the party must:
    (1) Notify EPA of its intent to file a claim;
    (2) Demonstrate that the release merits priority consideration;
    (3) Propose activities to remedy the release that can be carried out 
consistent with the NCP; and
    (4) Demonstrate the capabilities necessary to carry out such 
activities in a safe and effective manner.
In order for potentially responsible parties to be eligible for 
reimbursement they must conduct the response actions as specified in a 
Consent Decree or administrative order. Only if EPA preauthorizes a 
response action can the party begin work, and later file a claim for 
reimbursement of costs.
    The limitations placed on the payment of claims for response actions 
and the procedures for filing such claims are described in more detail 
at 58 FR 5460, Jan. 21, 1993, 40 CFR part 307. Additional information 
can be obtained by contacting Phyllis Anderson, Office of Emergency and 
Remedial Response (5203 G), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, (703) 603-8971, or the 
RCRA/CERCLA Hotline, (800) 424-9346 (or (703) 920-9810 in the 
Washington, DC metropolitan area).

[58 FR 5475, Jan. 21, 1993, as amended at 65 FR 47325, Aug. 2, 2000]