CORRECTIVE REPRINT SENATE AMENDED PRIOR PRINTER'S NOS. 2321, 3341, 3428, PRINTER'S NO. 3645 3558, 3585, 3632
No. 1852 Session of 1987
INTRODUCED BY GEORGE, MANDERINO, FREEMAN, ARGALL, JAROLIN, BOWLEY, LUCYK, WOZNIAK, FEE, LEVDANSKY, DOMBROWSKI, COLE, KUKOVICH, COWELL, HAYDEN, HALUSKA, MORRIS, SHOWERS, McCALL, PETRARCA, PRESSMANN, MURPHY, ARTY, LIVENGOOD, MRKONIC, ITKIN, TRELLO, TIGUE, KOSINSKI, BELARDI, RYBAK, VAN HORNE, BATTISTO, McHALE AND BROUJOS, OCTOBER 14, 1987
AS AMENDED ON THIRD CONSIDERATION, IN SENATE, JULY 5, 1988
AN ACT 1 Providing for the cleanup of hazardous waste sites; providing 2 further powers and duties of the Department of Environmental 3 Resources and the Environmental Quality Board; providing for 4 response and investigations for liability and cost recovery; 5 establishing the Hazardous Sites Cleanup Fund; PROVIDING A <-- 6 TAX CREDIT; AND providing for certain fees and for 7 enforcement, remedies and penalties.; making an <-- 8 appropriation; and repealing certain provisions relating to 9 the rate of the capital stock franchise tax. 10 TABLE OF CONTENTS 11 Chapter 1. Preliminary Provisions 12 Section 101. Short title. 13 Section 102. Declaration of policy. 14 Section 103. Definitions. 15 Section 104. Construction. 16 Chapter 3. Powers and Duties 17 Section 301. Powers and duties of department. 18 Section 302. Special science and technology resources.
1 Section 303. Powers and duties of Environmental Quality Board. 2 SECTION 304. HOST MUNICIPALITY INCENTIVES AND GUARANTEES. <-- 3 SECTION 305. HOST MUNICIPALITIES FUND. <-- 4 SECTION 305 306. HAZARDOUS WASTE FACILITY SITING COMMISSION. <-- 5 SECTION 306 307. POWERS AND DUTIES OF COMMISSION. <-- 6 Chapter 5. Response and Investigation 7 Section 501. Response authorities. 8 Section 502. Priorities. 9 Section 503. Information gathering and access. 10 Section 504. Cleanup standards. 11 Section 505. Development and implementation of response 12 actions. 13 Section 506. Administrative record. 14 Section 507. Recovery of response costs. 15 Section 508. Administrative and judicial review of response 16 actions. 17 Section 509. Private cause of action. <-- 18 Section 510. Superlien. 19 SECTION 509. LIEN. <-- 20 Section 511 510. Evaluation grant. <-- 21 Section 512 511. Acquisition of real property. <-- 22 Section 513 512. After closure and conveyance of property. <-- 23 Section 514 513. Contracting. <-- 24 Chapter 7. Liability and Cost Recovery 25 Section 701. Responsible person. 26 Section 702. Scope of liability. 27 Section 703. Defenses to liability. 28 Section 704. Subrogation and insurance. 29 Section 705. Contribution. 30 Section 706. De minimis settlements. 19870H1852B3645 - 2 -
1 Section 707. Nonbinding allocation of liability. 2 Section 708. Voluntary acceptance of responsibility. 3 Section 709. Mediation. 4 Chapter 9. Fund 5 Section 901. Fund. 6 Section 902. Expenditures from fund. 7 Section 903. Hazardous waste transportation and management 8 fees. 9 Section 904. Contingency surcharge. <-- 10 Section 905 904. Loan fund. <-- 11 SECTION 905. RECYCLING EQUIPMENT TAX CREDIT. <-- 12 Chapter 11. Enforcement and Remedies 13 Section 1101. Public nuisances. 14 Section 1102. Enforcement orders. 15 Section 1103. Restraining violations. 16 Section 1104. Civil penalties. 17 Section 1105. Criminal penalties. 18 Section 1106. Search warrants. 19 Section 1107. Existing and cumulative rights and remedies. 20 Section 1108. Unlawful conduct. 21 Section 1109. Presumption of law for civil and administrative 22 proceedings. 23 Section 1110. Collection of fines and penalties. 24 Section 1111. Right of citizen to intervene in proceedings. 25 Section 1112. Whistleblower provisions. 26 Section 1113. Notice of proposed settlement. 27 Section 1114. Limitation on action. 28 Section 1115. Citizen suits. 29 Chapter 13. Miscellaneous 30 Section 1301. Studies. 19870H1852B3645 - 3 -
1 Section 1302. Repeals. <-- 2 Section 1303 1302. Effective date. <-- 3 The General Assembly of the Commonwealth of Pennsylvania 4 hereby enacts as follows: 5 CHAPTER 1 6 PRELIMINARY PROVISIONS 7 Section 101. Short title. 8 This act shall be known and may be cited as the Hazardous 9 Sites Cleanup Act. 10 Section 102. Declaration of policy. 11 The General Assembly finds and declares as follows: 12 (1) The citizens of this Commonwealth have a right to 13 clean water and a healthy environment, and the General 14 Assembly has a responsibility to insure the protection of 15 that right. 16 (2) Hazardous substances which have been released into 17 the environment through improper disposal or other means pose 18 a real and substantial threat to the public health and 19 welfare of the residents of this Commonwealth and to the 20 natural resources upon which they rely. 21 (3) The cleanup of sites that are releasing or 22 threatening the release of hazardous substances into the 23 environment and the replacement of contaminated water 24 supplies protects the public health, preserves and restores 25 natural resources and is vital to the economic development of 26 this Commonwealth. 27 (4) When releases of hazardous substances contaminate 28 public water supplies, the replacement of those water 29 supplies is frequently beyond the resources of the people 30 affected. 19870H1852B3645 - 4 -
1 (5) Traditional legal remedies have not proved adequate 2 for preventing the release of hazardous substances into the 3 environment or for preventing the contamination of water 4 supplies. It is necessary, therefore, to clarify the 5 responsibility of persons who own, possess, control or 6 dispose of hazardous substances; to provide new remedies to 7 protect the citizens of this Commonwealth against the release 8 of hazardous substances; and to assure the replacement of 9 water supplies. 10 (6) Traditional methods of administrative and judicial 11 review have interfered with responses to the release of 12 hazardous substances into the environment. It is, therefore, 13 necessary to provide a special procedure which will postpone 14 both administrative and judicial review until after the 15 completion of the response action. 16 (7) The Federal Superfund Act provides numerous 17 opportunities for states to participate in the cleanup of 18 hazardous sites. It is in the interest of the citizens of 19 this Commonwealth that the Commonwealth be authorized to 20 participate in such cleanups and related activities to the 21 fullest extent. 22 (8) Many of the hazardous sites in this Commonwealth 23 which do not qualify for cleanup under the Federal Superfund 24 Act pose a substantial threat to the public health and 25 environment. Therefore, an independent site cleanup program 26 is necessary to promptly and comprehensively address the 27 problem of hazardous substance releases in this Commonwealth, 28 whether or not these sites qualify for cleanup under the 29 Federal Superfund Act. 30 (9) Extraordinary enforcement remedies and procedures 19870H1852B3645 - 5 -
1 are necessary and appropriate to encourage responsible 2 persons to cleanup hazardous sites and to deter persons in 3 possession of hazardous substances from careless or haphazard 4 management. 5 (10) Persons engaged in the transportation and 6 management of hazardous waste should contribute to the fund 7 through a hazardous waste management fee that is designed to 8 encourage and reward sound waste management practices such as 9 source reduction, recycling and on-site treatment. 10 (11) It is the intent of the General Assembly that the 11 department shall undertake such measures and steps as are 12 necessary to expedite the siting, review, permitting and 13 development of hazardous waste treatment and disposal 14 facilities within this Commonwealth, in order to protect 15 public health and safety, foster economic growth and protect 16 the environment. 17 (12) The following are the purposes of this act: 18 (i) Authorize the department to participate in the 19 investigation, assessment and cleanup of sites under the 20 Federal Superfund Act to the full extent provided by that 21 act. 22 (ii) Establish independent authority for the 23 department to conduct site investigations and 24 assessments; to provide for the cleanup of sites in this 25 Commonwealth that are releasing or threatening the 26 release of hazardous substances or contaminants into the 27 environment; to require the replacement of water supplies 28 contaminated by these substances; to take other 29 appropriate response actions and recover from responsible 30 persons its costs for conducting the responses. 19870H1852B3645 - 6 -
1 (iii) Establish the fund to provide to the 2 department the financial resources needed to plan and 3 implement a timely and effective response to the release 4 of hazardous substances and contaminants, including 5 emergency response actions, studies and investigations, 6 planning, remedial response, maintenance and monitoring 7 activities, replacement of water supplies and protection 8 of the public from the hazardous site. 9 (iv) Establish hazardous waste transportation and 10 management fees to encourage preferred hazardous waste 11 management practices and implement the hazardous waste 12 management hierarchy described in the hazardous waste 13 facilities plan and to generate revenues for the fund. 14 (v) Establish and maintain a cooperative State and 15 Federal program for the investigation and cleanup of 16 sites containing hazardous substances or contaminants and 17 for the replacement of affected water supplies and to 18 take other appropriate response actions. 19 (vi) Protect the public health, safety and welfare 20 and the natural resources of this Commonwealth from the 21 short-term and long-term effects of the release of 22 hazardous substances and contaminants into the 23 environment. 24 (vii) Provide a flexible and effective means to 25 implement and enforce the provisions of this act. 26 (viii) Encourage the siting of new hazardous waste 27 management facilities to properly store, treat and 28 dispose of hazardous materials. 29 (ix) Encourage responsible persons to voluntarily 30 perform response activities by enabling the department to 19870H1852B3645 - 7 -
1 enter into settlement agreements with responsible persons 2 to perform response activities that protect human health 3 and the environment; by enabling the department to enter 4 into settlement agreements with responsible persons to 5 settle a minor portion of response costs; and by 6 authorizing the department to utilize moneys from the 7 fund established by this act to enter into settlement 8 agreements that allow the department, when necessary to 9 achieve a cleanup, to pay for a portion of the costs 10 associated with response activities. 11 (X) IT IS IN THE PUBLIC INTEREST TO ELIMINATE <-- 12 HAZARDOUS WASTE BY ENCOURAGING AND PROVIDING INCENTIVES 13 TO TAXPAYERS TO REDUCE THE VOLUME OF HAZARDOUS WASTE 14 MATERIALS PRODUCED, TRANSPORTED AND DISPOSED OF IN THIS 15 COMMONWEALTH BY PROVIDING TAX CREDITS TO TAXPAYERS WHO 16 PURCHASE OR LEASE AND INSTALL RECYCLING EQUIPMENT WHICH 17 IS USED EXCLUSIVELY FOR THE ELIMINATION OF SUCH MATERIALS 18 BY RECLAIMING THEM ON SITE AND CONVERTING THEM INTO 19 NONHAZARDOUS REUSABLE, RAW MATERIAL PRODUCTS. 20 Section 103. Definitions. 21 The following words and phrases when used in this act shall 22 have the meanings given to them in this section unless the 23 context clearly indicates otherwise: 24 "Act of God." An unanticipated grave natural disaster or 25 other natural phenomenon of an exceptional, inevitable and 26 irresistible character the effects of which could not have been 27 prevented or avoided by the exercise of due care or foresight. 28 "Alternative water supplies." Includes but is not limited to 29 drinking water and household water supplies. 30 "Board." The Environmental Hearing Board of the 19870H1852B3645 - 8 -
1 Commonwealth. 2 "Captive facility." A facility which is located upon lands 3 owned by a generator of hazardous waste and which is operated to 4 provide for the treatment or disposal solely of that generator's 5 hazardous waste. 6 "Claim." A demand in writing for a sum certain. 7 "Contaminant." Includes but is not limited to a substance <-- 8 whose release is regulated under a statute administered by the 9 department or an element, substance, compound or mixture, 10 including disease-causing agents, which, after release into the 11 environment, may cause either of the following: 12 (1) In humans or other organisms or their offspring, 13 death; disease; behavioral abnormalities; cancer; genetic 14 mutation; physiological malfunctions, including malfunctions 15 in reproductions; or physical deformations. 16 (2) Damage to natural resources. 17 "CONTAMINANT." AN ELEMENT, SUBSTANCE, COMPOUND OR MIXTURE <-- 18 WHICH IS DEFINED AS A POLLUTANT OR CONTAMINANT PURSUANT TO THE 19 FEDERAL SUPERFUND ACT. 20 The term shall not include an element, substance, compound or 21 mixture from a coal mining operation under the jurisdiction of 22 the department or from a site eligible for funding under Title 23 IV of the Surface Mining Control and Reclamation Act of 1977 24 (Public Law 95-87, 30 U.S.C. § 1201 et seq.), nor shall the term 25 include natural gas, natural gas liquids, liquified natural gas 26 or synthetic gas usable for fuel or mixtures of natural gas and 27 synthetic gas usable for fuel, except for the purposes of an 28 emergency response, NOR SHALL THE TERM INCLUDE FLY ASH WASTE, <-- 29 BOTTOM ASH WASTE, SLAG WASTE OR FLUE GAS EMISSION CONTROL WASTE 30 GENERATED PRIMARILY FROM THE COMBUSTION OF COAL OR OTHER FOSSIL 19870H1852B3645 - 9 -
1 FUELS FOR THE PRODUCTION OF ELECTRICITY. 2 "Department." The Department of Environmental Resources of 3 the Commonwealth. 4 "Disposal." The incineration, combustion, evaporation, air 5 stripping, deposition, injection, dumping, spilling, leaking, 6 mixing or placing of a hazardous substance or contaminant into 7 the air, water or land in a manner which allows it to enter the 8 environment. 9 "Drinking water supply." A raw or finished water source that 10 is or may be used by a public water system, as defined in the 11 Safe Drinking Water Act (Public Law 95-323, 21 U.S.C. § 349 and 12 42 U.S.C. §§ 201 and 300f et seq), or as drinking water by one 13 or more individuals. 14 "Environment." Surface water, groundwater, drinking water 15 supply, land surface or subsurface strata or ambient air within 16 this Commonwealth. 17 "Federal Superfund Act." The Comprehensive Environmental 18 Response Compensation and Liability Act of 1980 (Public Law 96- 19 510, 94 Stat.2767). 20 "Federal Superfund Program." The hazardous waste site 21 cleanup program provided for in the Federal Superfund Act. 22 "Fund." The Hazardous Sites Cleanup Fund established by 23 section 901. 24 "Groundwater." Water occurring in a saturated zone or 25 stratum or percolating beneath the surface of land. 26 "Hazardous substance." <-- 27 (1) Any element, compound or material which can pose a 28 threat to the public health or the environment when released 29 into the environment. The term includes, but is not limited 30 to: 19870H1852B3645 - 10 -
1 (i) A hazardous waste designated under the act of 2 July 7, 1980 (P.L.380, No.97), known as the Solid Waste 3 Management Act. 4 (ii) A hazardous substance designated pursuant to 5 the Federal Superfund Act. 6 (iii) A hazardous material designated under the 7 Hazardous Materials Transportation Act (Public law 93- 8 633, 88 Stat.2156). 9 (iv) An object or material which is contaminated 10 with a hazardous substance. 11 (v) Other substances designated by the department as 12 detrimental to public health, safety and the environment 13 by regulations promulgated under this act. 14 "HAZARDOUS SUBSTANCE." <-- 15 (1) ANY SUBSTANCE, ELEMENT, COMPOUND OR MATERIAL WHICH 16 IS: 17 (I) DESIGNATED AS A HAZARDOUS WASTE UNDER THE ACT OF 18 JULY 7, 1980 (P.L.380, NO.97), KNOWN AS THE SOLID WASTE 19 MANAGEMENT ACT. 20 (II) DEFINED OR DESIGNATED AS A HAZARDOUS SUBSTANCE 21 PURSUANT TO THE FEDERAL SUPERFUND ACT. 22 (2) The term does not include petroleum products, 23 including crude oil or any fraction thereof, which are not 24 otherwise specifically listed or designated as a hazardous 25 substance under paragraph (1) nor natural gas, natural gas 26 liquids, liquefied natural gas or synthetic gas usable for 27 fuel or mixtures of natural gas and synthetic gas usable for 28 fuel or, NOR an element, substance, compound or mixture from <-- 29 a coal mining operation under the jurisdiction of the 30 department or from a site eligible for funding under Title IV 19870H1852B3645 - 11 -
1 of the Surface Mining Control and Reclamation Act of 1977 2 (Public Law 95-87, 30 U.S.C. § 1201 et seq.), NOR SHALL THE <-- 3 TERM INCLUDE FLY ASH WASTE, BOTTOM ASH WASTE, SLAG WASTE OR 4 FLUE GAS EMISSION CONTROL WASTE GENERATED PRIMARILY FROM THE 5 COMBUSTION OF COAL OR OTHER FOSSIL FUELS FOR THE PRODUCTION 6 OF ELECTRICITY. 7 "Hazardous waste." Any waste defined as hazardous under the 8 act of July 7, 1980 (P.L.380, No.97), known as the Solid Waste 9 Management Act, and any regulations promulgated under that act. 10 "HAZARDOUS WASTE FACILITY." A FACILITY WHICH PROVIDES FOR <-- 11 THE TREATMENT OR DISPOSAL OF HAZARDOUS WASTE. 12 "Interim response." Response which does not exceed 12 months 13 in duration or $2,000,000 in cost. An interim response may 14 exceed these limitations only where one of the following 15 applies: 16 (1) Continued response actions are immediately required 17 to prevent, limit or mitigate an emergency. 18 (2) There is an immediate risk to public health, safety, 19 welfare or the environment. 20 (3) Assistance will not otherwise be provided on a 21 timely basis. 22 (4) Continued response action is otherwise appropriate 23 and consistent with future remedial response to be taken. 24 "Natural resources." Land, fish, wildlife, biota, air, 25 water, groundwater, drinking water supplies and other resources 26 belonging to, managed by, held in trust by, appertaining to or 27 otherwise controlled by the United States, the Commonwealth or a 28 political subdivision. The term includes resources protected by 29 section 27 of Article I of the Constitution of Pennsylvania. 30 "Owner or operator." A person who owns or operates or has 19870H1852B3645 - 12 -
1 owned or operated a site, or otherwise controlled activities at 2 a site. The term does not include THE OWNER OR OPERATOR OF <-- 3 EQUIPMENT FOR THE RECOVERY OR PROCESSING, INCLUDING 4 RECIRCULATION OF CONDENSATE, OF METHANE WITH RESPECT TO THE 5 FACILITY AT WHICH THE EQUIPMENT IS INSTALLED OR a person who, 6 without participating in the management of a site, holds indicia 7 of ownership primarily to protect a security interest in the 8 site nor a unit of State or local government which acquired 9 ownership or control involuntarily through bankruptcy, tax 10 delinquency, abandonment, or other circumstances in which the 11 government involuntarily acquires title by virtue of its 12 function as sovereign NOR A FINANCIAL INSTITUTION OR ITS <-- 13 AFFILIATES NOR A CORPORATE INSTRUMENTALITY OF THE FEDERAL 14 GOVERNMENT. This exclusion does not apply to a political 15 subdivision which has caused or contributed to the release or 16 threatened release of a hazardous substance from the facility. 17 "Person." An individual, firm, corporation, association, 18 partnership, consortium, joint venture, commercial entity, 19 authority, interstate body or other legal entity which is 20 recognized by law as the subject of rights and duties. The term 21 includes the Federal Government, state governments and political 22 subdivisions. 23 "RECYCLING EQUIPMENT." MACHINERY OR APPARATUS USED <-- 24 EXCLUSIVELY TO PROCESS HAZARDOUS WASTE MATERIAL AND 25 MANUFACTURING MACHINERY USED EXCLUSIVELY TO RECLAIM SUCH 26 MATERIALS INTO NONHAZARDOUS, REUSABLE, RAW-MATERIAL PRODUCTS, 27 THEREBY REDUCING THE AMOUNT OF HAZARDOUS MATERIAL PRODUCED. 28 "Release." Spilling, leaking, pumping, pouring, emitting, 29 emptying, discharging, injecting, escaping, leaching, dumping or 30 disposal into the environment. The term includes the abandonment 19870H1852B3645 - 13 -
1 or discarding of barrels, containers, vessels and other 2 receptacles containing a hazardous substance or contaminant., <-- 3 and excludes the application of fertilizer in agricultural uses 4 in accordance with proper application procedures, controls and 5 loadings. THE TERM DOES NOT INCLUDE: <-- 6 (1) ANY RELEASE WHICH RESULTS IN EXPOSURE TO PERSONS 7 SOLELY WITHIN A WORKPLACE, WITH RESPECT TO A CLAIM WHICH SUCH 8 PERSONS MAY ASSERT AGAINST THE EMPLOYER OF SUCH PERSONS; 9 (2) EMISSIONS FROM THE ENGINE EXHAUST OF A MOTOR 10 VEHICLE, ROLLING STOCK, AIRCRAFT, VESSEL OR PIPELINE PUMPING 11 STATION ENGINE; 12 (3) RELEASE OF SOURCE, BY-PRODUCT OR SPECIAL NUCLEAR 13 MATERIAL FROM A NUCLEAR INCIDENT, AS THOSE TERMS ARE DEFINED 14 IN THE ATOMIC ENERGY ACT OF 1954 (68 STAT. 921, 28 U.S.C. §§ 15 2341(3)(A)-(C) AND 2342(1)-(4) AND 42 U.S.C. § 2201 ET SEQ.), 16 IF SUCH RELEASE IS SUBJECT TO REQUIREMENTS WITH RESPECT TO 17 FINANCIAL PROTECTION ESTABLISHED BY THE NUCLEAR REGULATORY 18 COMMISSION UNDER SECTION 170 OF THE ATOMIC ENERGY ACT OF 19 1954, OR, FOR THE PURPOSE OF SECTION 104 OF THIS ACT OR ANY 20 OTHER RESPONSE ACTION, ANY RELEASE OF SOURCE BY-PRODUCT, OR 21 SPECIAL NUCLEAR MATERIAL FROM ANY PROCESSING SITE DESIGNATED 22 UNDER SECTION 102(A)(1) OR 302(A) OF THE URANIUM MILL 23 TAILINGS RADIATION CONTROL ACT OF 1978 (PUBLIC LAW 95-604, 42 24 U.S.C. § 7901 ET SEQ.); AND 25 (4) THE NORMAL APPLICATION OF FERTILIZER. 26 "Remedial response or remedy." Any response which is not an 27 interim response. 28 "Response." Action taken in the event of a release or 29 threatened release of a hazardous substance or a contaminant 30 into the environment to study, assess, prevent, minimize or 19870H1852B3645 - 14 -
1 eliminate the release in order to protect the present or future 2 public health, safety or welfare or the environment. The term 3 includes but is not limited to: 4 (1) Emergency response to the release of hazardous 5 substances or contaminants. 6 (2) Actions at or near the location of the release, such 7 as studies; health assessments; storage; confinement; 8 perimeter protection using dikes, trenches, or ditches; clay 9 cover; neutralization; cleanup or removal of released 10 hazardous substances, contaminants or contaminated materials; 11 recycling or reuse, diversion, destruction, segregation of 12 reactive wastes; dredging or excavations; repair or 13 replacement of leaking containers; collection of leachate and 14 runoff; onsite treatment or incineration; offsite transport 15 and offsite storage; treatment, destruction, or secure 16 disposition of hazardous substances and contaminants; 17 treatment of groundwater, provision of alternative water 18 supplies, fencing or other security measures; and monitoring 19 and maintenance reasonably required to assure that these 20 actions protect the public health, safety, and welfare and 21 the environment. 22 (3) Costs of relocation of residents and businesses and 23 community facilities when the department determines that, 24 alone or in combination with other measures, relocation is 25 more cost effective than and environmentally preferable to 26 the transportation, storage, treatment, destruction or secure 27 disposition offsite of hazardous substances or contaminants 28 or may otherwise be necessary to protect the public health or 29 welfare. 30 (4) Actions taken under section 104(b) of the Federal 19870H1852B3645 - 15 -
1 Superfund Act, (42 U.S.C. § 9604(b)) and any emergency 2 assistance which may be provided under the Disaster Relief 3 Act of 1974 (Public Law 93-288, 88 Stat.43). 4 (5) Other actions necessary to assess, prevent, 5 minimize, or mitigate damage to the public health, safety or 6 welfare or the environment which may otherwise result from a 7 release or threatened release of hazardous substances or 8 contaminants. 9 (6) Investigation, enforcement, abatement of nuisances, 10 and oversight and administrative activities related to 11 interim or remedial response enforcement, abatement of 12 nuisances, and oversight and administrative activities 13 related to interim or remedial response. 14 "Responsible person." A person responsible for the release 15 or threatened release of a hazardous substance as described in 16 section 701. IN NO CASE SHALL A FINANCIAL INSTITUTION OR ITS <-- 17 AFFILIATE OR A CORPORATE INSTRUMENTALITY OF THE FEDERAL 18 GOVERNMENT BE DEEMED TO BE A RESPONSIBLE PERSON OR TO BE JOINTLY 19 OR CONTINGENTLY LIABLE FOR THE ACTIONS OF A RESPONSIBLE PERSON 20 BY VIRTUE OF SUPERVISION OF, OR OTHER INVOLVEMENT WITH, THE 21 FINANCES AND OPERATIONS OF A RESPONSIBLE PERSON IN CONNECTION 22 WITH A LOAN, OBLIGATION OR OTHER SERVICE PROVIDED. 23 "Secretary." The Secretary of Environmental Resources of the 24 Commonwealth. 25 "Service station operator." A person who owns or operates a 26 motor vehicle service station, filling station, garage or 27 similar operation engaged in selling, repairing or servicing 28 motor vehicles who accepts or undertakes the collection, 29 accumulation and delivery to an oil recycling facility of 30 recycled oil that has been removed from the engine of a motor 19870H1852B3645 - 16 -
1 vehicle or appliance and that is presented for collection, 2 accumulation and delivery to an oil recycling facility. The term 3 includes a government agency that establishes a facility solely 4 for the purpose of accepting recycled oil and owners or 5 operators of refuse collection services who are compelled by law 6 to collect, accumulate and deliver recycled oil to an oil 7 recycling facility. 8 "Site." Any building; structure; installation; equipment; <-- 9 pipe or pipeline, including any pipe into a sewer or publicly- 10 owned treatment works; well; pit; pond; lagoon; impoundment; 11 ditch; landfill; storage container; tank; vehicle; rolling 12 stock; aircraft; vessel; or area where a contaminant or 13 hazardous substance has been deposited, stored, treated, 14 released, disposed of, placed, or otherwise come to be located. 15 The term does not include a location where the hazardous 16 substance or contaminant is a consumer product in normal 17 consumer use or where pesticides and fertilizers are in normal 18 appropriate agricultural use. 19 "SITE." ANY BUILDING; STRUCTURE; INSTALLATION; EQUIPMENT; <-- 20 PIPE OR PIPELINE, INCLUDING ANY PIPE INTO A SEWER OR PUBLICLY- 21 OWNED TREATMENT WORKS; WELL; PIT; POND; LAGOON; IMPOUNDMENT; 22 DITCH; LANDFILL; STORAGE CONTAINER; TANK; VEHICLE; ROLLING 23 STOCK; AIRCRAFT; VESSEL OR AREA WHERE A CONTAMINANT OR HAZARDOUS 24 SUBSTANCE HAS BEEN DEPOSITED, STORED, TREATED, RELEASED, 25 DISPOSED OF, PLACED OR OTHERWISE COME TO BE LOCATED. THE TERM 26 DOES NOT INCLUDE A LOCATION WHERE THE HAZARDOUS SUBSTANCE OR 27 CONTAMINANT IS A CONSUMER PRODUCT IN NORMAL CONSUMER USE OR 28 WHERE PESTICIDES AND FERTILIZERS ARE IN NORMAL APPROPRIATE 29 AGRICULTURAL USE, NOR SHALL THE TERM INCLUDE A LOCATION WHERE 30 HAZARDOUS SUBSTANCES ARE PRESENT WHEN SUCH LOCATION HAS A 19870H1852B3645 - 17 -
1 PERMIT, INCLUDING INTERIM STATUS, UNDER THE SOLID WASTE DISPOSAL 2 ACT (PUBLIC LAW 89-272, 42 U.S.C. § 6901 ET SEQ.) OR THE ACT OF 3 JULY 7, 1980 (P.L.380, NO.97), KNOWN AS THE SOLID WASTE 4 MANAGEMENT ACT, OR, IF NOT REQUIRED TO HAVE SUCH PERMIT OR 5 INTERIM STATUS, IS UNDER ACTIVE OPERATION OR MANAGEMENT BY AN 6 IDENTIFIED AND RESPONSIBLE OWNER OR OPERATOR. 7 "Transportation." The conveyance of a hazardous substance or 8 contaminant by any mode, including pipeline. 9 "Treatment." A method, technique or process, including 10 neutralization, designed to change the physical, chemical or 11 biological character or composition of a hazardous substance so 12 as to neutralize the hazardous substance or to render the 13 hazardous substance nonhazardous, safer for transport, suitable 14 for recovery, suitable for storage or reduced in volume. The 15 term includes activity or processing designed to change the 16 physical form or chemical composition of hazardous substance so 17 as to render it neutral or nonhazardous. 18 "Vessel." A watercraft or other artificial contrivance used, 19 or capable of being used, as a means of transportation on water. 20 Section 104. Construction. 21 Nothing in this act shall be construed to affect, impair or 22 repeal any provision of any other statute. No action by the 23 department under this act shall be understood or construed as 24 precluding the department from taking any action authorized by 25 this act or any other statute administered by the department. 26 CHAPTER 3 27 POWERS AND DUTIES 28 Section 301. Powers and duties of department. 29 The department has the following powers and duties: 30 (1) Develop, administer and enforce a program to provide 19870H1852B3645 - 18 -
1 for the investigation, assessment and cleanup of hazardous 2 sites in this Commonwealth pursuant to the provisions of this 3 act and regulations adopted under this act. 4 (2) Undertake activities necessary or proper to 5 cooperate with and fully participate in the Federal Superfund 6 Program, including serving as the agency of the Commonwealth 7 for the receipt of moneys from the Federal Government or 8 other public or private agencies. 9 (3) Develop, administer and enforce an independent State 10 response program for the investigation, assessment and 11 cleanup of hazardous sites and replacement of water supplies 12 and the protection of the citizens and natural resources of 13 this Commonwealth from the dangers of hazardous substances 14 and contaminants that have been released or are threatened to 15 be released into the environment. 16 (4) Cooperate with appropriate Federal, State, 17 interstate and local government agencies in carrying out its 18 duties under this act by, among other things, accepting an 19 appropriate delegation or agency relationship from such an 20 agency to facilitate the cleanup of hazardous sites in this 21 Commonwealth. 22 (5) Administer the fund and any fund for hazardous waste 23 facilities siting and expend money from the funds in 24 accordance with this act. 25 (6) Administer and expend funds appropriated to the 26 department or granted to the Commonwealth under the Federal 27 Superfund Act or other authority for the protection of the 28 public and the natural resources of this Commonwealth from 29 releases of hazardous substances or contaminants. 30 (7) Promulgate the State standards and requirements 19870H1852B3645 - 19 -
1 applicable, relevant or appropriate for the cleanup of 2 hazardous sites under this act and the Federal Superfund Act. 3 (8) Develop a program for public participation in the 4 assessment of sites and selection of appropriate remedial 5 responses. 6 (9) Issue orders to enforce provisions of this act and 7 regulations promulgated under it. 8 (10) Institute, in a court of competent jurisdiction, 9 proceedings to compel compliance with this act, regulations 10 promulgated under it or an order of the department. 11 (11) Institute prosecutions under this act. 12 (12) Appoint advisory committees as the secretary deems 13 necessary and proper to assist the department in carrying out 14 this act. The secretary is authorized to pay reasonable and 15 necessary expenses incurred by the members of advisory 16 committees in carrying out their functions. 17 (13) Acquire special scientific and technical staff 18 resources to provide specialized expertise in areas related 19 to the evaluation of sites and selection of responses to 20 advise the department regarding standards, technologies, risk 21 assessments and other matters related to the cleanup of 22 hazardous sites; the regulation of hazardous substances and 23 contaminants; and the enforcement of this act. 24 (14) Act as trustee of this Commonwealth's natural 25 resources. The department may assess and collect damages to 26 natural resources for the purposes of this act and the 27 Federal Superfund Act for those natural resources under its 28 trusteeship. 29 (15) Provide for emergency response capability for 30 spills, accidents and other releases of hazardous substances 19870H1852B3645 - 20 -
1 and contaminants. 2 (16) Implement section 27 of Article 1 of the 3 Constitution of Pennsylvania. 4 (17) Do any and all other acts and things not 5 inconsistent with any provision of this act which it may deem 6 necessary or proper for the effective enforcement of this act 7 and the regulations promulgated under it. 8 Section 302. Special science and technology resources. 9 (a) Establishment.--The department shall establish an 10 additional complement of individuals with expertise and advanced 11 degrees in specialized fields of science and technology relevant 12 to administration and enforcement of this act. 13 (b) Expertise.--The special science and technology staff 14 shall have expertise in fields relating to the identification, 15 analysis, assessment, prevention or abatement of hazards to the 16 public health or the environment resulting from the release of 17 hazardous substances or contaminants into the environment. The 18 special science and technology staff may include, without 19 limitation, individuals trained in toxicology, hydrogeology, 20 chemistry, biology, soil science, biochemistry, environmental 21 engineering, epidemiology, value engineering and risk assessment 22 sciences. 23 (c) Availability.--The special science and technology staff 24 shall be available to review consultants' contracts, reports and 25 feasibility studies; prepare and review environmental 26 assessments, serve as expert witnesses in department litigation; 27 provide scientific analysis or studies to support rulemaking 28 activities of the department; and perform other duties as 29 assigned by the secretary in furtherance of this act or other 30 environmental protection laws administered by the department. 19870H1852B3645 - 21 -
1 (d) Civil service.--In order to obtain the most highly 2 qualified individuals for the special science and technology 3 staff, the secretary may hire the staff without regard to the 4 provisions of the act of August 5, 1941 (P.L.752, No.286), known 5 as the Civil Service Act. 6 Section 303. Powers and duties of Environmental Quality Board. 7 The board, exercising its powers and duties under section 8 1920 of the act of April 9, 1929 (P.L. 177, No.175), known as 9 The Administrative Code of 1929, has the power and duty to 10 promulgate the regulations of the department to accomplish the 11 purposes and to carry out the provisions of this act, including 12 but not limited to regulations relating to the protection, from 13 the release of hazardous substances, of the safety, health, 14 welfare and property of the public and of the air, water, land 15 and other natural resources of this Commonwealth. 16 SECTION 304. HOST MUNICIPALITY INCENTIVES AND GUARANTEES. <-- 17 (A) INFORMATION TO HOST MUNICIPALITY.--THE DEPARTMENT SHALL 18 PROVIDE ALL OF THE FOLLOWING INFORMATION TO THE GOVERNING BODY 19 OF A HOST MUNICIPALITY FOR A COMMERCIAL HAZARDOUS WASTE STORAGE, 20 TREATMENT OR DISPOSAL FACILITY PERMITTED BY THE DEPARTMENT UNDER 21 THIS ACT AND LOCATED WITHIN THAT MUNICIPALITY: 22 (1) COPIES OF DEPARTMENT INSPECTION REPORTS FOR THE 23 FACILITY UNDER THIS ACT, THE ACT OF JUNE 22, 1937 (P.L.1987, 24 NO.394), KNOWN AS THE CLEAN STREAMS LAW, THE ACT OF JANUARY 25 8, 1960 (1959 P.L.2119, NO.787), KNOWN AS THE AIR POLLUTION 26 CONTROL ACT, AND THE ACT OF NOVEMBER 26, 1978 (P.L.1375, 27 NO.325), KNOWN AS THE DAM SAFETY AND ENCROACHMENTS ACT, 28 WITHIN FIVE WORKING DAYS AFTER THE PREPARATION OF THE 29 REPORTS. 30 (2) PROMPT NOTIFICATION OF ALL DEPARTMENT ENFORCEMENT OR 19870H1852B3645 - 22 -
1 EMERGENCY ACTIONS FOR FACILITIES, INCLUDING, BUT NOT LIMITED 2 TO, ABATEMENT ORDERS, CESSATION ORDERS, PROPOSED AND FINAL 3 CIVIL PENALTY ASSESSMENTS AND NOTICES OF VIOLATION. 4 (3) COPIES OF AIR AND WATER QUALITY MONITORING DATA 5 COLLECTED BY THE DEPARTMENT AT FACILITIES, AFTER COMPLETE 6 LABORATORY ANALYSIS OF THE DATA BECOMES AVAILABLE TO THE 7 DEPARTMENT. 8 (B) TRAINING OF INSPECTORS.-- 9 (1) THE DEPARTMENT SHALL ESTABLISH AND CONDUCT A 10 TRAINING PROGRAM TO CERTIFY HOST MUNICIPALITY INSPECTORS FOR 11 HAZARDOUS WASTE STORAGE, TREATMENT OR DISPOSAL FACILITIES. NO 12 MORE THAN TWO PERSONS FROM EACH HOST MUNICIPALITY SHALL BE 13 ELIGIBLE FOR THE PROGRAM. EACH HOST MUNICIPALITY SHALL INFORM 14 THE DEPARTMENT, IN WRITING, OF THE PERSONS IT HAS DESIGNATED 15 TO PARTICIPATE IN THE TRAINING PROGRAM. THE DEPARTMENT SHALL 16 HOLD TRAINING SESSIONS AT LEAST TWICE A YEAR. THE DEPARTMENT 17 SHALL CERTIFY HOST MUNICIPALITY INSPECTORS UPON COMPLETION OF 18 THE TRAINING PROGRAM AND SATISFACTORY PERFORMANCE IN AN 19 EXAMINATION ADMINISTERED BY THE DEPARTMENT. 20 (2) CERTIFIED MUNICIPAL INSPECTORS SHALL BE AUTHORIZED 21 TO ENTER PROPERTY, INSPECT RECORDS, TAKE SAMPLES AND CONDUCT 22 INSPECTIONS. CERTIFIED MUNICIPAL INSPECTORS MAY NOT ISSUE 23 ORDERS. UPON THE COMPLETION OF AN INSPECTION, CERTIFIED 24 MUNICIPAL INSPECTORS SHALL TRANSMIT ALL FINDINGS FROM THE 25 INSPECTION TO THE DEPARTMENT. THE DEPARTMENT SHALL NOTIFY 26 CERTIFIED MUNICIPAL INSPECTORS OF REGULAR INSPECTIONS OF 27 PERMITTED FACILITIES WITHIN THEIR JURISDICTION AND SHALL 28 PROVIDE OPPORTUNITY FOR THE INSPECTORS TO ACCOMPANY 29 DEPARTMENT INSPECTORS ON INSPECTIONS. 30 (3) THE DEPARTMENT SHALL REIMBURSE HOST MUNICIPALITIES 19870H1852B3645 - 23 -
1 FOR 50% OF THE APPROVED COST OF EMPLOYING CERTIFIED HOST 2 MUNICIPALITY INSPECTORS FOR A PERIOD NOT TO EXCEED FIVE 3 YEARS. 4 (4) THE DEPARTMENT SHALL PROMPTLY INSPECT A FACILITY 5 WHEN A HOST MUNICIPALITY PRESENTS INFORMATION TO THE 6 DEPARTMENT WHICH GIVES THE DEPARTMENT REASON TO BELIEVE THAT 7 A HAZARDOUS WASTE STORAGE, TREATMENT OR DISPOSAL FACILITY IS 8 IN VIOLATION OF ANY REQUIREMENT OF THE CLEAN STREAMS LAW, THE 9 AIR POLLUTION CONTROL ACT, THE DAM SAFETY AND ENCROACHMENTS 10 ACT, OR THIS ACT; A REGULATION PROMULGATED UNDER THESE 11 STATUTES; OR THE CONDITION OF A PERMIT ISSUED UNDER THESE 12 STATUTES. 13 (I) THE DEPARTMENT SHALL NOTIFY THE HOST MUNICIPALITY OF 14 THIS INSPECTION AND SHALL PERMIT A CERTIFIED MUNICIPAL 15 INSPECTOR FROM THE HOST MUNICIPALITY TO ACCOMPANY THE 16 DEPARTMENT INSPECTOR DURING THE INSPECTION. 17 (II) WHEN THE DEPARTMENT DETERMINES THAT THERE IS NOT 18 SUFFICIENT INFORMATION TO GIVE THE DEPARTMENT REASON TO 19 BELIEVE THAT A VIOLATION IS OCCURRING OR HAS OCCURRED, THE 20 DEPARTMENT SHALL PROVIDE A WRITTEN EXPLANATION TO THE HOST 21 MUNICIPALITY OF ITS DECISION NOT TO CONDUCT AN INSPECTION 22 WITHIN 30 DAYS OF THE REQUEST FOR INSPECTION. 23 (C) FINANCIAL ASSISTANCE FOR THE REVIEW OF PERMIT 24 APPLICATIONS.--THE DEPARTMENT SHALL REIMBURSE HOST COUNTIES FOR 25 COSTS INCURRED BY HOST MUNICIPALITIES FOR PROFESSIONAL TECHNICAL 26 REVIEW OF A PERMIT APPLICATION UNDER THIS ACT FOR A HAZARDOUS 27 WASTE TREATMENT, STORAGE OR DISPOSAL FACILITY OR FOR A PERMIT 28 MODIFICATION THAT WOULD RESULT IN ADDITIONAL CAPACITY FOR THE 29 FACILITY. THE REIMBURSEMENT SHALL NOT EXCEED $50,000 PER 30 COMPLETE APPLICATION. 19870H1852B3645 - 24 -
1 (D) SAMPLING AND ANALYSIS OF WATER.-- 2 (1) UPON WRITTEN REQUEST FROM PERSONS OWNING PROPERTY 3 WITHIN 2,500 FEET OF A HAZARDOUS WASTE STORAGE, TREATMENT OR 4 DISPOSAL FACILITY, THE OPERATOR OF THE FACILITY SHALL HAVE 5 QUARTERLY SAMPLING AND ANALYSIS CONDUCTED OF PRIVATE WATER 6 SUPPLIES USED BY THOSE PERSONS FOR DRINKING WATER. SAMPLING 7 AND ANALYSIS SHALL BE CONDUCTED BY A LABORATORY CERTIFIED 8 PURSUANT TO THE ACT OF MAY 1, 1984 (P.L.206, NO.43), KNOWN AS 9 THE PENNSYLVANIA SAFE DRINKING WATER ACT. THE LABORATORY 10 SHALL BE CHOSEN BY THE LANDOWNERS FROM A LIST OF REGIONAL 11 LABORATORIES SUPPLIED BY THE DEPARTMENT. SAMPLING AND 12 ANALYSIS SHALL BE AT THE EXPENSE OF THE FACILITY OPERATOR. 13 (2) WATER SUPPLIES SHALL BE ANALYZED BY THE DEPARTMENT. 14 THE LABORATORY PERFORMING SAMPLING AND ANALYSIS SHALL PROVIDE 15 WRITTEN COPIES OF SAMPLE RESULTS TO THE LANDOWNER, THE 16 OPERATOR AND THE DEPARTMENT. 17 SECTION 305. HOST MUNICIPALITIES FUND. <-- 18 (A) ESTABLISHMENT.--THERE IS ESTABLISHED WITHIN THE STATE 19 TREASURY A SEPARATE ACCOUNT WHICH SHALL BE KNOWN AS THE HOST 20 MUNICIPALITIES FUND. UP TO $2,000,000 OF THE PROCEEDS FROM 21 HAZARDOUS WASTE TRANSPORTATION AND MANAGEMENT FEES IMPOSED UNDER 22 SECTION 903, INCLUDING ANY INTEREST GENERATED THEREON, SHALL BE 23 DEPOSITED IN THE FUND UPON THE ISSUANCE OF A PERMIT FOR A 24 HAZARDOUS WASTE FACILITY. 25 (B) PURPOSE.--THE PURPOSE OF THE FUND IS TO PROVIDE 26 FINANCIAL ASSISTANCE TO HOST MUNICIPALITIES WITH CERTAIN 27 CATEGORIES OF HAZARDOUS WASTE FACILITIES WITHIN THEIR 28 JURISDICTION. FOR THE PURPOSES OF THIS SECTION, THE TERM 29 "HAZARDOUS WASTE FACILITY" IS LIMITED TO OFF-SITE TREATMENT 30 FACILITIES FOR HAZARDOUS WASTE. THE TERM "OFF-SITE" MEANS THE 19870H1852B3645 - 25 -
1 FACILITY IS NOT LOCATED AT THE SAME SITE AT WHICH THE HAZARDOUS 2 WASTE WAS GENERATED. 3 (C) APPROPRIATION.--ALL MONEY PLACED IN THE FUND IS 4 APPROPRIATED TO THE DEPARTMENT FOR THE PURPOSES SET FORTH IN 5 THIS SECTION. 6 (D) ALLOCATION.--THE DEPARTMENT SHALL ANNUALLY ALLOCATE 7 MONEYS IN THE FUND FOR THE FOLLOWING PURPOSES: 8 (1) CONDUCTING THE HOST MUNICIPALITY INSPECTOR TRAINING 9 PROGRAM, EMPLOYING A CERTIFIED HOST MUNICIPALITY INSPECTOR, 10 REIMBURSING MUNICIPALITIES AND COUNTIES FOR INDEPENDENT 11 EVALUATIONS AND PROVIDING SIMILAR ASSISTANCE RELATED TO THE 12 IMPLEMENTATION OF SECTION 304. 13 (2) PROVIDING AN ANNUAL PAYMENT TO EACH HOST 14 MUNICIPALITY, AS PROVIDED IN SUBSECTION (E). 15 (E) MINIMUM PAYMENT.-- 16 (1) AT A MINIMUM, EACH PAYMENT SHALL BE IN AN AMOUNT 17 SUFFICIENT TO REIMBURSE THE HOST MUNICIPALITY FOR THE HOST 18 MUNICIPALITY'S ELIGIBLE SHARE OF ANY ACTIVITIES CARRIED OUT 19 UNDER SECTION 304. 20 (2) AFTER A COMMERCIAL HAZARDOUS WASTE TREATMENT OR 21 DISPOSAL FACILITY BEGINS OPERATION, THE DEPARTMENT SHALL 22 ANNUALLY DISTRIBUTE THE BALANCE CONTAINED IN THE FUND AFTER 23 PAYMENTS HAVE BEEN MADE UNDER PARAGRAPH (1). THE BALANCE 24 SHALL BE DISTRIBUTED ACCORDING TO AN ALLOCATION FORMULA 25 ESTABLISHED BY REGULATION. THE ALLOCATION FORMULA SHALL DO 26 ALL OF THE FOLLOWING: 27 (I) PROVIDE, AT A MINIMUM, THAT NO HOST MUNICIPALITY 28 MAY RECEIVE LESS THAN 10% NOR MORE THAN 75% OF THE TOTAL 29 AMOUNT DISTRIBUTED UNDER THIS PARAGRAPH ANNUALLY. 30 (II) DISTRIBUTE FUNDS TO EACH HOST MUNICIPALITY, 19870H1852B3645 - 26 -
1 BASED ON ALL OF THE FOLLOWING:
2 (A) THE TOXICITY, MOBILITY AND OTHER
3 CHARACTERISTICS OF THE HAZARDOUS WASTE.
4 (B) THE PROXIMITY OF THE FACILITY TO PERSONS OR
5 NATURAL RESOURCES WHICH WOULD BE ENDANGERED BY THE
6 ESCAPE OF THE HAZARDOUS WASTE FROM THE FACILITY.
7 (C) THE WEIGHT OR VOLUME OF WASTE TREATED OR
8 DISPOSED ANNUALLY AT THE FACILITY IN PROPORTION TO
9 THE WEIGHT OR VOLUME OF WASTE TREATED OR DISPOSED
10 ANNUALLY IN THIS COMMONWEALTH.
11 (D) THE AMOUNT OF WASTE DISPOSED OR TREATED AT
12 THE FACILITY GENERATED INSIDE THIS COMMONWEALTH.
13 (3) A HOST MUNICIPALITY MAY EXPEND MONEY RECEIVED UNDER
14 THIS SUBSECTION FOR ANY PURPOSE FOR WHICH THE MUNICIPALITY IS
15 OTHERWISE AUTHORIZED BY LAW TO EXPEND PUBLIC FUNDS,
16 INCLUDING, BUT NOT LIMITED TO, ECONOMIC DEVELOPMENT
17 ACTIVITIES AND THE PAYMENT ON BEHALF OF ITS RESIDENTS OF ANY
18 COUNTY OR SCHOOL DISTRICT TAXES THAT WOULD OTHERWISE BE
19 IMPOSED ON ITS RESIDENTS.
20 (F) CONSTRUCTION OF SECTION.--NOTHING IN THIS SECTION SHALL
21 BE CONSTRUED TO PREVENT THE HOST MUNICIPALITY AND THE OWNER OR
22 OPERATOR OF A COMMERCIAL HAZARDOUS WASTE TREATMENT STORAGE OR
23 DISPOSAL FACILITY FROM ENTERING CONTRACTUAL OR OTHER AGREEMENTS
24 BY WHICH THE OWNER OR OPERATOR PROVIDES ADDITIONAL BENEFITS TO
25 THE HOST MUNICIPALITY.
26 SECTION 305 306. HAZARDOUS WASTE FACILITY SITING COMMISSION. <--
27 (A) ESTABLISHMENT.--THERE IS HEREBY ESTABLISHED AN
28 INDEPENDENT AGENCY, KNOWN AS THE HAZARDOUS WASTE FACILITY SITING
29 COMMISSION, WHICH SHALL CONSIST OF SEVEN MEMBERS TO BE KNOWN AS
30 COMMISSIONERS. THREE MEMBERS OF THE COMMISSION SHALL BE
19870H1852B3645 - 27 -
1 APPOINTED BY THE GOVERNOR, ONE OF WHOM SHALL BE DESIGNATED AS 2 CHAIRMAN, ONE BY THE PRESIDENT PRO TEMPORE OF THE SENATE, ONE BY 3 THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, ONE BY THE MINORITY 4 LEADER OF THE SENATE AND ONE BY THE MINORITY LEADER OF THE HOUSE 5 OF REPRESENTATIVES. THOSE PERSONS APPOINTED SHALL BE 6 KNOWLEDGEABLE IN THE FIELDS OF HAZARDOUS WASTE MANAGEMENT, 7 ENVIRONMENTAL PROTECTION, MUNICIPAL GOVERNMENT OR OTHER 8 PERTINENT FIELDS AND SHALL BE APPOINTED IN SUCH A MANNER AS TO 9 FAIRLY REPRESENT LOCAL GOVERNMENT, INDUSTRY AND PUBLIC INTEREST 10 GROUPS. NO MEMBER OF THE GENERAL ASSEMBLY OR ANY OFFICER OR 11 EMPLOYEE OF THE STATE GOVERNMENT SHALL SERVE AS A MEMBER OF THE 12 COMMISSION. 13 (B) TERMS OF MEMBERS.--EACH APPOINTMENT SHALL BE FOR A TERM 14 OF THREE YEARS. ALL VACANCIES SHALL BE FILLED, FOR THE REMAINDER 15 OF THE UNEXPIRED TERM, BY THE RESPECTIVE APPOINTING AUTHORITY. 16 ANY COMMISSIONER, UPON THE EXPIRATION OF HIS TERM, SHALL 17 CONTINUE TO HOLD OFFICE UNTIL HIS SUCCESSOR SHALL BE APPOINTED. 18 NO COMMISSIONER MAY BE REMOVED FROM OFFICE DURING HIS TERM, 19 EXCEPT FOR CAUSE, BY THE RESPECTIVE APPOINTING AUTHORITY. 20 (C) COMPENSATION.--THE COMMISSIONERS SHALL RECEIVE $125 A 21 DAY AS COMPENSATION FOR THEIR SERVICES. THE COMMISSIONERS SHALL 22 BE ENTITLED TO REIMBURSEMENT FOR TRAVEL AND OTHER NECESSARY 23 EXPENSES INCURRED AS A RESULT OF THEIR DUTIES AS MEMBERS OF THE 24 COMMISSION. THE EXPENSES INCURRED BY THE COMMISSIONERS OR BY ANY 25 EMPLOYEES OF THE COMMISSION SHALL BE ALLOWED AND PAID ON THE 26 PRESENTATION OF ITEMIZED VOUCHERS THEREFOR, WHICH VOUCHERS SHALL 27 BE SUBJECT TO THE APPROVAL OF THE COMMISSION. 28 (D) MEETINGS.--THE COMMISSION SHALL MEET AS NECESSARY TO 29 CARRY OUT ITS BUSINESS, BUT NOT LESS THAN FOUR TIMES PER YEAR, 30 AT SUCH TIMES AND PLACES AS SHALL BE SET BY THE CHAIRMAN. FOR 19870H1852B3645 - 28 -
1 PURPOSES OF CONDUCTING OFFICIAL BUSINESS, A QUORUM SHALL CONSIST 2 OF FOUR MEMBERS. 3 (E) ORGANIZATIONAL MEETING.--WITHIN TWO WEEKS FOLLOWING THE 4 APPOINTMENT OF THE COMMISSIONERS, THE CHAIRMAN SHALL CONVENE AN 5 ORGANIZATIONAL MEETING OF THE COMMISSION. WITHIN 60 DAYS, THE 6 COMMISSION SHALL APPOINT AND FIX THE COMPENSATION OF AN 7 EXECUTIVE DIRECTOR, WHO SHALL DEVOTE HIS FULL TIME TO THE 8 GENERAL SUPERVISION OF ALL THE AFFAIRS OF THE COMMISSION. IN 9 ADDITION, THE COMMISSION MAY APPOINT AND FIX THE COMPENSATION OF 10 SUCH OTHER EMPLOYEES AS THE COMMISSION MAY, FROM TIME TO TIME, 11 FIND NECESSARY FOR THE PROPER PERFORMANCE OF ITS FUNCTIONS. 12 SECTION 306 307. POWERS AND DUTIES OF COMMISSION. <-- 13 (A) GENERAL RULE.--THE COMMISSION SHALL HAVE THE POWER AND 14 ITS DUTIES SHALL BE TO: 15 (1) PROMULGATE SUCH REGULATIONS, NOT INCONSISTENT WITH 16 THIS ACT, AS MAY BE NECESSARY TO CARRY OUT ITS DUTIES. 17 (2) DEVELOP A COMPREHENSIVE PUBLIC EDUCATION PROGRAM TO 18 ACQUAINT THE PUBLIC WITH THE NATURE OF HAZARDOUS WASTE 19 GENERATION, MANAGEMENT AND DISPOSAL OF HOUSEHOLD HAZARDOUS 20 WASTE. 21 (3) COOPERATE WITH LOCAL GOVERNMENTS INTERESTED PERSONS <-- 22 TO IDENTIFY AREAS SUITABLE FOR SITING HAZARDOUS WASTE 23 FACILITIES. 24 (4) DEVELOP, THROUGH REGULATION, CRITERIA FOR THE SITING <-- 25 OF HAZARDOUS WASTE FACILITIES AND TO REVIEW AND APPROVE OR 26 DISAPPROVE SITING APPLICATIONS. 27 (4) REVIEW AND APPROVE OR DISAPPROVE APPLICATIONS FOR <-- 28 HAZARDOUS WASTE FACILITY SITES BROUGHT BEFORE THE COMMISSION 29 TO DETERMINE CONFORMITY WITH DEPARTMENTAL SITING CRITERIA AS 30 FOUND IN 25 PA. CODE CH. 75, SUBCH. F (RELATING TO SITING 19870H1852B3645 - 29 -
1 HAZARDOUS WASTE TREATMENT AND DISPOSAL FACILITIES). 2 (5) ASSIST LOCAL GOVERNMENTS IN PLANNING FOR THE SITING 3 OF HAZARDOUS WASTE FACILITIES OR IN REVIEWING SITING 4 APPLICATIONS FOR SUCH FACILITIES. 5 (6) ADMINISTER A GRANT PROGRAM TO ASSIST LOCAL 6 GOVERNMENTS IN SITE PLANNING OR REVIEW. 7 (7) ADOPT A HAZARDOUS WASTE FACILITY PLAN, TAKING INTO <-- 8 CONSIDERATION SUCH HAZARDOUS WASTE FACILITIES PLANS AS MAY 9 PRESENTLY EXIST. 10 (B) SCHEDULE FOR FACILITIES.--WITHIN 90 DAYS FOLLOWING THE 11 COMMISSION'S ORGANIZATIONAL MEETING, THE COMMISSION SHALL 12 ESTABLISH A SCHEDULE THAT OUTLINES THE PROCESS FOR SITING NEW OR 13 EXPANDED HAZARDOUS WASTE DISPOSAL OR TREATMENT FACILITIES 14 IDENTIFIED AS NECESSARY IN THE PENNSYLVANIA HAZARDOUS WASTE 15 FACILITIES PLAN. THE COMMISSION MAY AMEND SUCH SCHEDULE FROM 16 TIME TO TIME. 17 (C) CRITERIA.--THE COMMISSION SHALL ADOPT, BY REGULATION, <-- 18 CRITERIA FOR THE SITING OF HAZARDOUS WASTE DISPOSAL OR TREATMENT 19 FACILITIES, WHICH CRITERIA SHALL SUPERSEDE ANY CRITERIA FOR THE 20 SITING OF SUCH FACILITIES HERETOFORE ESTABLISHED. IN ADOPTING 21 SUCH CRITERIA, THE COMMISSION SHALL CONSIDER: 22 (1) ANY CRITERIA WHICH MAY HAVE EXISTED HERETOFORE; 23 (2) THE PENNSYLVANIA HAZARDOUS WASTE FACILITIES PLAN; 24 (3) SECTION 27 OF ARTICLE I OF THE CONSTITUTION OF 25 PENNSYLVANIA; 26 (4) PERTINENT ECONOMIC AND ENVIRONMENTAL FACTORS; AND 27 (5) SUCH OTHER CRITERIA AS THE COMMISSION DEEMS 28 APPROPRIATE. 29 THE COMMISSION SHALL ADOPT INTERIM GUIDELINES ON THE SITING OF 30 HAZARDOUS WASTE DISPOSAL OR TREATMENT FACILITIES. THESE 19870H1852B3645 - 30 -
1 GUIDELINES SHALL REMAIN IN EFFECT UNTIL NO LATER THAN OCTOBER 2 17, 1989, BY WHICH TIME THE COMMISSION SHALL HAVE IN EFFECT 3 REGULATIONS FOR THE SITING OF HAZARDOUS WASTE DISPOSAL OR 4 TREATMENT FACILITIES. 5 (C) CRITERIA.--THE COMMISSION SHALL ADOPT EXISTING <-- 6 DEPARTMENTAL REGULATIONS FOR THE SITING OF HAZARDOUS WASTE <-- 7 FACILITIES AS SET FORTH IN 25 PA. CODE CH. 75, SUBCH. F. 8 (D) GRANT PROGRAM.--THE COMMISSION SHALL ESTABLISH A GRANT 9 PROGRAM, FROM FUNDS APPROPRIATED BY THE GENERAL ASSEMBLY FOR 10 THAT PURPOSE, TO ASSIST INTERESTED COUNTY GOVERNMENTS IN 11 UNDERTAKING A PLANNING PROCESS DESIGNED TO IDENTIFY POTENTIAL 12 HAZARDOUS WASTE FACILITY SITES BY APPLYING THE COMMISSION'S 13 SITING CRITERIA TO LAND WITHIN THE COUNTY. 14 (E) APPLICATION.--ANY PERSON INTERESTED IN ESTABLISHING A 15 HAZARDOUS WASTE DISPOSAL OR TREATMENT FACILITY SHALL SUBMIT A 16 SITING APPLICATION TO THE COMMISSION. SUCH APPLICATION MAY 17 PRECEDE OR BE SIMULTANEOUS WITH THE SUBMISSION OF A PERMIT 18 APPLICATION TO THE DEPARTMENT. THE COMMISSION SHALL ESTABLISH, <-- 19 BY REGULATION, PROCEDURES FOR THE PROCESSING AND REVIEW OF SUCH 20 APPLICATIONS. SUCH PROCEDURES SHALL INCLUDE AT LEAST ONE PUBLIC 21 HEARING AT A LOCATION NEAR THE PROPOSED SITE. THE COMMISSION 22 SHALL REVIEW THE APPLICATION FOR CONFORMITY WITH ITS EXISTING <-- 23 DEPARTMENTAL SITING CRITERIA AND SHALL, AFTER SUCH REVIEW AND 24 PUBLIC HEARING, APPROVE OR DENY THE SITING APPLICATION. PRIOR TO <-- 25 A FINAL DECISION, THE COMMISSION SHALL PROVIDE THE DEPARTMENT 26 WITH AN OPPORTUNITY TO SUBMIT WRITTEN COMMENTS AND ANY RELEVANT 27 INFORMATION REGARDING A PROPOSED SITING APPLICATION. IF THE 28 APPLICATION IS APPROVED, THE COMMISSION SHALL CERTIFY TO THE 29 DEPARTMENT THAT SUCH SITE IS CONSISTENT WITH THE COMMISSION'S <-- 30 SITING CRITERIA, WHICH CERTIFICATION SHALL BE BINDING UPON THE 19870H1852B3645 - 31 -
1 DEPARTMENT AND SHALL NOT BE SUBJECT TO FURTHER REVIEW BY THE
2 DEPARTMENT OR BY THE BOARD.. THE COMMISSION REVIEW SHALL BE <--
3 COMPLETED WITHIN 120 DAYS OF SUBMISSION OF THE APPLICATION. ANY
4 PERSON, OTHER THAN THE STATE GOVERNMENT, THAT IS AGGRIEVED BY A
5 DECISION OF THE COMMISSION MAY APPEAL TO THE COMMONWEALTH COURT
6 IN ACCORDANCE WITH LAW.
7 (F) SELECTION OF SITE BY COMMISSION.--IN THE EVENT NO SITING
8 APPLICATION IS SUBMITTED TO THE COMMISSION BY OCTOBER 17, 1989,
9 THE COMMISSION SHALL APPLY ITS SITING CRITERIA TO THE ENTIRE
10 COMMONWEALTH AND SHALL IDENTIFY POTENTIALLY SUITABLE SITES FOR
11 HAZARDOUS WASTE FACILITIES THROUGHOUT THIS COMMONWEALTH. THE
12 COMMISSION MAY AT ANY TIME SOLICIT PROPOSALS FROM INTERESTED
13 PERSONS TO DEVELOP HAZARDOUS WASTE DISPOSAL OR TREATMENT
14 FACILITIES AT SUCH SITES AS MAY BE IDENTIFIED BY THE COMMISSION.
15 IF NO SUCH PROPOSALS ARE RECEIVED, OR IF THE COMMISSION IN ITS
16 DISCRETION DETERMINES THAT SOLICITING SUCH PROPOSALS IS NOT IN
17 THE PUBLIC INTEREST, THE COMMISSION MAY MAKE APPLICATION TO THE
18 DEPARTMENT, IN THE NAME OF THE COMMONWEALTH, FOR THE NECESSARY
19 PERMITS TO ESTABLISH A STATE-OWNED HAZARDOUS WASTE DISPOSAL
20 FACILITY. IN CARRYING OUT ITS DUTIES UNDER THIS SUBSECTION, THE
21 COMMISSION SHALL HAVE THE POWER OF EMINENT DOMAIN TO ACQUIRE
22 SUCH SITE OR SITES AS MAY BE NECESSARY, AND THE ESTABLISHMENT OF
23 SUCH SITES UNDER THIS SUBSECTION SHALL NOT BE SUBJECT TO ANY
24 LOCAL LAWS WHICH WOULD PRECLUDE OR PROHIBIT THE ESTABLISHMENT OF
25 SUCH SITES, INCLUDING ZONING ORDINANCES, AND ALL SUCH LAWS ARE
26 HEREBY PREEMPTED.
27 (G) CERTIFICATES OF PUBLIC NECESSITY.--THE COMMISSION SHALL
28 HAVE THE POWER AND ITS DUTY SHALL BE TO ISSUE CERTIFICATES OF
29 PUBLIC NECESSITY FOR THE ESTABLISHMENT OF HAZARDOUS WASTE
30 DISPOSAL OR TREATMENT FACILITIES, AS MAY BE NECESSARY AND
19870H1852B3645 - 32 -
1 APPROPRIATE. ANY PERSONS OR MUNICIPALITIES WHICH HAVE OBTAINED
2 ALL NECESSARY PERMITS FROM THE DEPARTMENT, OR OTHER APPROPRIATE
3 STATE OR FEDERAL AGENCIES, MAY APPLY TO THE COMMISSION FOR A
4 CERTIFICATE OF PUBLIC NECESSITY FOR A SITE PREVIOUSLY CERTIFIED
5 BY THE COMMISSION. IF GRANTED, SUCH CERTIFICATE SHALL SUSPEND
6 AND SUPERSEDE ANY AND ALL LOCAL LAWS WHICH WOULD PRECLUDE OR
7 PROHIBIT THE ESTABLISHMENT OF A HAZARDOUS WASTE TREATMENT OR
8 DISPOSAL FACILITY, INCLUDING ZONING ORDINANCES.
9 (H) TRANSFER OF DEPARTMENT POWER.--THE POWER OF THE BOARD TO
10 ISSUE CERTIFICATES OF PUBLIC NECESSITY AS PROVIDED IN SECTION
11 105(F) OF THE SOLID WASTE MANAGEMENT ACT, AND THE AUTHORITY OF
12 THE DEPARTMENT TO FACILITATE SITING AS PROVIDED IN SECTION 507
13 OF THE SOLID WASTE MANAGEMENT ACT ARE HEREBY TRANSFERRED TO THE
14 COMMISSION TO THE EXTENT THAT THEY RELATE TO HAZARDOUS WASTE
15 DISPOSAL OR TREATMENT FACILITIES.
16 (I) APPLICABILITY.--NOTHING IN THIS SECTION SHALL BE <--
17 CONSTRUED TO AFFECT, IMPAIR OR SUPERSEDE THE AUTHORITY OF THE
18 DEPARTMENT TO ISSUE A PERMIT FOR A HAZARDOUS WASTE FACILITY
19 PURSUANT TO THE ACT OF JULY 7, 1980 (P.L.380, NO.97), KNOWN AS
20 THE SOLID WASTE MANAGEMENT ACT.
21 CHAPTER 5
22 RESPONSE AND INVESTIGATION
23 Section 501. Response authorities.
24 (a) General rule.--Where there is a release or threat of
25 release from a site of a contaminant which presents a hazard to
26 the public health or safety or the environment or where a
27 hazardous substance is released or threatened to be released,
28 the department shall investigate and, if further response action
29 is deemed appropriate, the department may SHALL notify the <--
30 owner, operator or any other responsible party of such release
19870H1852B3645 - 33 -
1 or threat of a release and allow such person or persons to 2 investigate and undertake an appropriate response, or may 3 undertake any further investigation, interim response or 4 remedial response relating to the contaminant or hazardous 5 substance which the department deems necessary or appropriate to 6 protect the public health, safety or welfare or the environment. 7 (b) Effect on liability.--No response action taken by any 8 person shall be construed as an admission of liability for a 9 release or threatened release. 10 (c) Exclusion.-- 11 (1) The department shall not provide for an interim 12 response or remedial response under this section in response 13 to a release or threat of release: 14 (i) of a naturally occurring substance in its 15 unaltered form, or altered solely through naturally 16 occurring processes or phenomena, from a location where 17 it is naturally found; 18 (ii) from products which are part of the structure 19 of, and result in exposure within, residential buildings 20 or business or community structures; 21 (iii) into public or private drinking water supplies 22 due to deterioration of the system through ordinary use; 23 or 24 (iv) from a coal mining operation under the 25 jurisdiction of the department or from a site eligible 26 for funding under Title IV of the Surface Mining Control 27 and Reclamation Act of 1977 (Public Law 95-87, 30 U.S.C. 28 § 1201 et seq.). 29 (2) Notwithstanding paragraph (1), to the extent 30 authorized by this section, the department may respond to a 19870H1852B3645 - 34 -
1 release or threat of release when, in the department's 2 discretion, it determines that the release or threat of 3 release constitutes a public health, safety, or environmental 4 emergency and that no other person with the authority and 5 capability to respond to the emergency will do so in a timely 6 manner. 7 (d) Investigations.--The department shall undertake OR CAUSE <-- 8 TO BE UNDERTAKEN BY THE OWNER, OPERATOR OR ANY OTHER RESPONSIBLE 9 PARTY, AS PERMITTED UNDER SUBSECTION (A), investigations, 10 monitoring, surveys, testing and other similar activities 11 necessary or appropriate to identify the existence and extent of 12 the release or threat of release, the source and nature of the 13 hazardous substances or contaminants and the extent of danger to 14 the public health or welfare or the environment. The department 15 may also undertake planning, legal, fiscal, economic, 16 engineering, architectural and other studies or investigations 17 necessary or appropriate to plan and direct a response action, 18 to recover the costs of the response action and to enforce the 19 provisions of this act. The department shall undertake the 20 activities described in this subsection in one or more of the 21 following circumstances: 22 (1) When the department is authorized to act under 23 subsection (a). 24 (2) When the department has reason to believe that a 25 release of a hazardous substance or a contaminant has 26 occurred or is about to occur. 27 (3) When the department determines that illness or 28 disease or complaints of illness or disease may be 29 attributable to exposure to a hazardous substance or 30 contaminant. 19870H1852B3645 - 35 -
1 (e) Notice of investigations.--The department, upon 2 undertaking any investigation, interim response or remedial 3 response under this section, shall give prompt written notice 4 thereof to the owner and operator of the site and to the first 5 mortgagee holding a mortgage on the premises on which the site 6 is located. 7 (f) Bidding for remedial or removal actions.-- 8 (1) The department may prequalify bidders for remedial 9 or removal actions taken under subsection (b). The department 10 may reject the bid of a prospective bidder who has not been 11 prequalified. 12 (2) To prequalify bidders, the department shall adopt, 13 by regulation, and apply a uniform system of rating bidders. 14 In order to obtain information for rating, the department may 15 require from prospective bidders answers to questions, 16 including, but not limited to, questions about the bidder's 17 financial ability; the bidder's experience in removal and 18 remedial action involving hazardous substances; the bidder's 19 past safety record; and the bidder's past performance on 20 Federal, State or local government projects. The department 21 may also require prospective bidders to submit financial 22 statements. 23 (3) The department shall utilize the business financial 24 data and information submitted by a bidder under this section 25 only for the purposes of prequalifying bidders and shall not 26 otherwise disclose this data or information. 27 Section 502. Priorities. 28 (a) List.-- 29 (1) The department shall establish a temporary list of 30 priorities among sites with releases or threatened releases 19870H1852B3645 - 36 -
1 for the purpose of taking remedial response. The temporary 2 list, with necessary modifications, shall remain in effect 3 until the department promulgates regulations establishing 4 criteria for determining priorities among releases and 5 threatened releases, OR UNTIL 12 16 MONTHS AFTER THE <-- 6 EFFECTIVE DATE OF THIS ACT, WHICHEVER IS SOONER. IN THE EVENT <-- 7 THAT A PERMANENT PRIORITY LIST IS NOT ESTABLISHED WITHIN 16 8 MONTHS AFTER THE EFFECTIVE DATE OF THIS ACT, THE GENERAL 9 ASSEMBLY MAY PROVIDE, THROUGH CONCURRENT RESOLUTION, FOR THE 10 CONTINUATION OF THE TEMPORARY LIST FOR NO MORE THAN ONE YEAR, 11 UPON WRITTEN REQUEST BY THE DEPARTMENT. THE WRITTEN REQUEST 12 SHALL INCLUDE INFORMATION TO SUBSTANTIATE THE NEED FOR AN 13 EXTENSION OF THE TEMPORARY LIST. After regulations are 14 promulgated, a permanent priority list shall be established 15 and may be modified according to the criteria set forth in 16 the regulations. Before a list is established under this 17 subsection, the department shall publish the list in the 18 Pennsylvania Bulletin and allow 30 days for comments on the 19 list by the public. Remedial responses may be on-going at 20 more than one site at any given time. 21 (2) The temporary list shall be composed of the sites <-- 22 following in priority those sites meeting the requirements of 23 the national priority listing of Appendix A of 40 CFR Part 24 300, but which do not qualify for national priority listing. 25 (3) The department, when it deems necessary for the 26 response to a release or for the protection of public health, 27 safety or welfare or the environment, may include additional 28 sites to the temporary list. 29 (3) THE TEMPORARY LIST SHALL LIST SITES IN DESCENDING <-- 30 ORDER OF PRIORITY AND SHALL INCLUDE NO MORE THAN 20 SUCH 19870H1852B3645 - 37 -
1 SITES. 2 (2) THE TEMPORARY LIST SHALL BE COMPOSED OF SITES RANKED <-- 3 BY THE ENVIRONMENTAL PROTECTION AGENCY OR THE DEPARTMENT 4 USING THE HAZARD RANKING SYSTEM ESTABLISHED UNDER THE FEDERAL 5 SUPERFUND ACT AND REGULATIONS THEREUNDER, BUT WHICH DO NOT 6 QUALIFY FOR NATIONAL PRIORITY LISTING. 7 (3) FOR THE PERIOD OF TIME THAT THE TEMPORARY LIST IS IN 8 EFFECT, NO MORE THAN 20 SITES SHALL BE LISTED. THESE SITES 9 SHALL BE LISTED IN DESCENDING ORDER OF PRIORITY. 10 (b) Criteria.--The temporary list and the regulations 11 required by subsection (a) shall be based upon the relative risk 12 or danger to public health and welfare or the environment, 13 taking into account, to the extent possible, the population at 14 risk, the hazardous potential of the hazardous substances or 15 contaminants at the sites, the potential for contamination of 16 drinking water supplies, the potential for direct human contact, 17 the potential for destruction of sensitive ecosystems, the 18 maximum usage of available Federal funds for sites which qualify 19 for the National Priority List, the administrative and financial 20 capabilities of the department and other appropriate factors AND <-- 21 SHALL INCORPORATE THE HAZARD RANKING SYSTEM ESTABLISHED UNDER 22 THE FEDERAL SUPERFUND ACT. 23 (c) Status.--The placement or removal of a site with a 24 release or threatened release upon either the temporary priority 25 list or the permanent priority list shall not be deemed to be a 26 final action subject to review under Title 2 of the Pennsylvania 27 Consolidated Statutes (relating to administrative law and 28 procedure) or section 1921-A of the act of April 9, 1929 29 (P.L.177, No.175), known as The Administrative Code of 1929, nor 30 shall it confer a right or duty upon the department or any 19870H1852B3645 - 38 -
1 person, nor shall the placement of the site upon either the 2 temporary or permanent priority list preclude any responsible 3 person from undertaking a voluntary cleanup pursuant to this 4 act. 5 (d) Listing.--Ninety days prior to the placement of a site 6 upon the permanent list, the department shall notify the known 7 responsible persons of the proposed listing. The site shall not 8 be placed upon the list if a responsible person enters into a 9 settlement with the department which provides for the abatement 10 of the release or threatened release. Once a site has been 11 placed upon the list, it shall be removed upon the determination 12 by the department that the responsible person has complied with 13 the terms of the settlement and has initiated a cleanup. 14 (e) Rights preserved.--Nothing in this act shall be 15 interpreted to deprive any interested or aggrieved person of his 16 inherent right to bring an action in mandamus to correct 17 department actions under the standards currently recognized in 18 Pennsylvania equity practice. 19 Section 503. Information gathering and access. 20 (a) Authority.--The authority of this section shall be 21 exercised when there is a reasonable basis to believe there may 22 be a release or threat of release of a hazardous substance or 23 contaminant. The authority of this section shall be exercised 24 for the purposes of determining the need for response, choosing 25 or taking a response action under this act or otherwise 26 enforcing the provisions of this act. 27 (b) Information.-- 28 (1) The department shall have access to information 29 relevant to any of the following: 30 (i) The identification, nature and quantity of 19870H1852B3645 - 39 -
1 materials which have been or are generated, treated, 2 stored or disposed of at a site or transported to a site. 3 (ii) The nature or extent of a release or threatened 4 release of a hazardous substance or pollutant or 5 contaminant at or from a site. 6 (iii) Information relating to the ability of a 7 person to pay for or to perform a response action. 8 (2) A person who has or may have information under 9 paragraph (1) shall, upon reasonable notice, either: 10 (i) grant the department access at all reasonable 11 times to a site or other place or property to inspect and 12 copy all documents or records relating to the matter; or 13 (ii) copy and furnish to the department all the 14 documents or records. 15 (c) Right of entry.--The department may enter at reasonable 16 times a site or other place or property in one or more of the 17 following circumstances: 18 (1) A hazardous substance or contaminant may be or has 19 been generated at, stored at, treated at, disposed of at or 20 transported from the place. 21 (2) A hazardous substance or contaminant has been or is 22 being or threatens to be released. 23 (3) Entry is needed to determine the need for response 24 to hazardous substance or contaminant or the appropriate 25 response or to effectuate a response action under this act. 26 (4) A release of a hazardous substance or contaminant 27 has occurred on a nearby property, and entry is required to 28 determine the extent of the release. 29 (5) There is a container or impoundment which is typical 30 of those used to contain or impound hazardous substances and 19870H1852B3645 - 40 -
1 entry is needed to determine the existence of a hazardous 2 substance. 3 (d) Inspection.-- 4 (1) The department may inspect and obtain samples from a 5 site or other place or property referred to in subsection (c) 6 or from a location of a suspected hazardous substance or 7 contaminant. The department's right of inspection shall 8 include the sampling of solids, liquids and gases; 9 excavations for soil sampling; drilling and maintenance of 10 wells to monitor groundwater; and the installation and 11 maintenance of other equipment to monitor the nature or 12 extent of a release of a suspected hazardous substance or 13 contaminant. The department may inspect and obtain samples of 14 containers or labeling for suspected hazardous substances or 15 contaminants. Each inspection shall be completed with 16 reasonable promptness. 17 (2) When the department obtains samples, before leaving 18 the premises, it shall give to the owner, operator, tenant or 19 other person in charge of the place from which the samples 20 were obtained a receipt describing the sample obtained and, 21 when requested, a portion of the sample. A copy of the 22 results of an analysis made of the samples shall be furnished 23 promptly to the owner, operator, tenant or other person in 24 charge when the person can be located. 25 (e) Duty to cooperate with response action.-- 26 (1) The following persons shall allow the department 27 access or right of entry and inspection as may be reasonably 28 necessary to determine the nature and extent of a release of 29 a hazardous substance or contaminant: 30 (i) A person who owns or occupies land on which 19870H1852B3645 - 41 -
1 there is a release or threat of a release of a hazardous 2 substance or contaminant. 3 (ii) A person who owns or occupies land which is 4 near the site of a release or threatened release. 5 (iii) A person who owns or occupies land on which 6 there is a container or impoundment typical of those used 7 to contain or impound hazardous substances. 8 (iv) A person who is a responsible person under 9 section 701. 10 (2) The following persons shall allow the department 11 access or right of entry and inspection as may be reasonably 12 necessary to perform a response under section 501: 13 (i) A person who owns or occupies land on which 14 there is a release or a threat of release of a hazardous 15 substance or contaminant. 16 (ii) A person who owns or occupies land which may be 17 affected by the release of a hazardous substance or 18 contaminant. 19 (iii) A person who is a responsible person under 20 section 701. 21 (f) Remedies.-- 22 (1) In addition to any other remedy provided by this 23 act, the department may enforce the provisions of this 24 section by issuing orders requiring access to information, 25 requiring entry onto property and restraining interference 26 with any response action. An order issued under this section 27 may be appealed to the board under section 1921-A of the act 28 of April 9, 1929 (P.L.177, No.175), known as The 29 Administrative Code of 1929. 30 (2) The department may immediately apply to a court of 19870H1852B3645 - 42 -
1 competent jurisdiction to enforce its order, unless the board 2 has issued a supersedeas. The court shall immediately enforce 3 the department's order upon finding all of the following: 4 (i) The order is authorized by this act. 5 (ii) There has not been full compliance with the 6 order. 7 (3) In lieu of issuing an order under paragraph (1), the 8 department may apply immediately to a court of competent 9 jurisdiction for the same relief. 10 (4) When the board reviews an order issued under 11 paragraph (1), or when a court reviews the department's 12 request for immediate relief under paragraph (3), the board 13 shall uphold the department's order and the court shall grant 14 the requested relief where all of the following are 15 established: 16 (i) The department has a reasonable basis to believe 17 that there may be a release or a threat of a release of a 18 hazardous substance or contaminant. 19 (ii) The order or relief requested is reasonably 20 related to determining the need for a response, to 21 choosing or taking any response or to otherwise enforcing 22 the provisions of this act. 23 (5) Except as provided in this subsection, there shall 24 be no administrative or judicial review of action by the 25 department or its agents to obtain access to information, to 26 obtain entry onto property or to perform work on the property 27 in connection with a response action. Neither the board nor 28 any court may restrain action of the department under this 29 section unless all of the following apply: 30 (i) The person seeking to restrain the department 19870H1852B3645 - 43 -
1 has given the department a 30-day written notice of his 2 intent to do so. 3 (ii) The department has failed to issue an order 4 within the 30-day period. 5 (6) The minimum civil penalty assessed under section 6 1104 for a violation of an order issued under this section 7 shall be $5,000 for each day the order is violated. 8 (g) Other remedies.--Nothing in this subsection shall 9 preclude the department from securing access or obtaining 10 information in any other lawful manner. 11 (h) Public records.-- 12 (1) Except as provided in this subsection, records, 13 reports or other information obtained under this act shall be 14 available to the public for inspection or copying during 15 regular business hours. The department may, upon request, 16 designate records, reports or information as confidential 17 when the person providing the information demonstrates all of 18 the following: 19 (i) The information contains the trade secrets, 20 processes, operations, style of work or apparatus of a 21 person or is otherwise confidential business information, 22 including information obtained under subsection 23 (b)(1)(iii). 24 (ii) The information does not relate to health or 25 safety effects of a hazardous substance or contaminant. 26 (2) When submitting information to the department under 27 this act, a person shall designate the information which the 28 person believes is confidential or shall submit that 29 information separately from other information being 30 submitted. 19870H1852B3645 - 44 -
1 (i) Use of force.--When a person refuses to allow the 2 department to have access to information under subsection (c) or 3 entry onto property under subsection (d), the department shall 4 not use force to obtain the information or entry unless one of 5 the following applies: 6 (1) The department has obtained a search warrant or 7 initiated an action under subsection (f). 8 (2) Immediate action is needed to protect the public 9 health or safety or the environment. 10 Section 504. Cleanup standards. <-- 11 (a) General rule.--Final remedial responses under this act 12 shall meet all standards, requirements, criteria or limitations 13 which are legally applicable or relevant and appropriate under 14 the circumstances presented by the release or threatened release 15 of the hazardous substance or contaminant. Cleanup standards 16 promulgated or ordered under this act shall be at least as 17 stringent as those promulgated under the Federal Superfund Act. 18 (b) Rulemaking.--The department shall promulgate the 19 standards, requirements, criteria or limitations that are 20 generally applicable to remedial responses to releases of 21 hazardous substances or contaminants by regulation, or by 22 providing actual notice to a responsible person of the 23 applicable, or relevant and appropriate, requirements. 24 (c) Form.--The department's standards for remedial responses 25 may include, but are not limited to, regulations, policies, 26 guidelines, design manuals, plans, executive orders, forms and 27 modules and other documents used in environmental programs 28 administered by the department. 29 (d) Special standards.--In addition to the promulgation of 30 State standards, requirements, criteria or limitations which are 19870H1852B3645 - 45 -
1 generally applicable, the department may add special standards 2 on a case-by-case basis in order to assure protection of human 3 health and the environment. 4 (e) Modification.--The department may modify otherwise 5 applicable requirements when any of the following apply: 6 (1) Compliance with a requirement at a site will result 7 in greater risk to the public health and the environment than 8 alternative options. 9 (2) Compliance with a requirement at a site is 10 technically infeasible from an engineering perspective. 11 (3) The remedial response selected will attain a 12 standard of performance that is equivalent to that required 13 under the otherwise applicable requirement, through use of 14 another method or approach which is more cost effective. 15 (f) Fund money.--In addition to the provisions of subsection 16 (e), when the response action is to be done using only fund 17 money, the department may waive requirements that might 18 otherwise be applicable to a response at the site undertaken by 19 a responsible person if it determines the waiver to be in the 20 public interest. 21 (g) Permits.--When prior written approval is obtained from 22 the department, no State or local permits shall be required for 23 a response action conducted entirely on the site, provided that 24 the response action complies with standards pursuant to this 25 section. 26 (h) Review.--Any action taken by the department under this 27 section shall be subject to judicial or administrative review 28 only as provided in section 508. 29 SECTION 504. CLEANUP STANDARDS. <-- 30 (A) GENERAL RULE.--FINAL REMEDIAL ACTIONS UNDER THIS ACT 19870H1852B3645 - 46 -
1 SHALL MEET ALL STANDARDS, REQUIREMENTS, CRITERIA OR LIMITATIONS
2 WHICH ARE LEGALLY APPLICABLE OR RELEVANT AND APPROPRIATE UNDER
3 THE CIRCUMSTANCES PRESENTED BY THE RELEASE OR THREATENED RELEASE
4 OF THE HAZARDOUS SUBSTANCE OR CONTAMINANT AND WHICH PROVIDE FOR
5 COST-EFFECTIVE RESPONSES. CLEANUP STANDARDS PROMULGATED UNDER
6 THIS ACT SHALL BE CONSISTENT WITH THOSE ESTABLISHED UNDER THE
7 FEDERAL SUPERFUND ACT. PENDING PROMULGATION OF REGULATIONS
8 REQUIRED BY SUBSECTION (B), THE CLEANUP STANDARDS ESTABLISHED
9 UNDER THE FEDERAL SUPERFUND ACT SHALL APPLY TO ALL REMEDIAL
10 ACTIONS.
11 (B) RULEMAKING.--THE DEPARTMENT SHALL PROMULGATE THE
12 STANDARDS, REQUIREMENTS, CRITERIA OR LIMITATIONS THAT ARE
13 GENERALLY APPLICABLE TO REMEDIAL RESPONSES TO RELEASES OF
14 HAZARDOUS SUBSTANCES OR CONTAMINANTS BY REGULATION.
15 (C) SPECIAL STANDARDS.--THE DEPARTMENT MAY ADD, WITHOUT <--
16 RULEMAKING UNDER SUBSECTION (B), SPECIAL STANDARDS, MORE
17 STRINGENT THAN FEDERAL CLEANUP STANDARDS, ON A CASE-BY-CASE
18 BASIS IF BOTH ANY OF THE FOLLOWING APPLY: <--
19 (1) THE CIRCUMSTANCES AT THE SITE ARE SUCH THAT THE
20 APPLICABLE FEDERAL STANDARD, AS APPLIED, WOULD NOT PROVIDE
21 THE DEGREE OF PROTECTION TO PUBLIC HEALTH OR THE ENVIRONMENT
22 INTENDED BY THE FEDERAL STANDARD.
23 (2) THE ADDITIONAL DEGREE OF ENVIRONMENTAL PROTECTION <--
24 PROVIDED BY THE SPECIAL STANDARD IS PROPORTIONATE TO THE
25 INCREMENTAL COST OF IMPLEMENTING IT.
26 (D) MODIFICATION.--THE DEPARTMENT MAY WAIVE OTHERWISE
27 APPLICABLE REQUIREMENTS IF ANY OF THE FOLLOWING APPLY:
28 (1) COMPLIANCE WITH A REQUIREMENT AT A SITE WILL RESULT
29 IN GREATER RISK TO THE PUBLIC HEALTH AND THE ENVIRONMENT THAN
30 ALTERNATIVE OPTIONS.
19870H1852B3645 - 47 -
1 (2) COMPLIANCE WITH A REQUIREMENT AT A SITE IS 2 TECHNICALLY INFEASIBLE FROM AN ENGINEERING PERSPECTIVE. 3 (3) THE REMEDIAL ACTIONS SELECTED WILL ATTAIN A STANDARD 4 OF PERFORMANCE THAT IS EQUIVALENT TO THAT REQUIRED UNDER THE 5 OTHERWISE APPLICABLE REQUIREMENT THROUGH USE OF ANOTHER 6 METHOD OR APPROACH. 7 (4) THE REMEDIAL ACTION SELECTED WILL NOT PROVIDE FOR 8 COST-EFFECTIVE RESPONSE. 9 (E) FUND MONEY.--IN ADDITION TO THE PROVISIONS OF SUBSECTION 10 (D), IF THE RESPONSE ACTION IS TO BE DONE USING ONLY FUND MONEY, 11 THE DEPARTMENT MAY WAIVE REQUIREMENTS THAT MIGHT OTHERWISE BE 12 APPLICABLE TO A RESPONSE AT THE SITE UNDERTAKEN BY A RESPONSIBLE 13 PERSON IF IT DETERMINES THE WAIVER TO BE IN THE PUBLIC INTEREST. 14 (F) PERMITS.--NO STATE OR LOCAL PERMITS SHALL BE REQUIRED 15 FOR A RESPONSE ACTION CONDUCTED ENTIRELY ON THE SITE IF PRIOR 16 WRITTEN APPROVAL IS OBTAINED FROM THE DEPARTMENT. 17 (G) REVIEW.--ANY ACTION TAKEN BY THE DEPARTMENT UNDER THIS 18 SECTION SHALL BE SUBJECT TO JUDICIAL OR ADMINISTRATIVE REVIEW. 19 Section 505. Development and implementation of response 20 actions. 21 (a) Basis.--The selection of a remedial response shall be 22 based upon the administrative record developed under section 23 506. 24 (b) Interim response.--An interim response may be taken 25 before the development of an administrative record when, upon 26 the basis of the information available to the department at the 27 time of the interim response, there is a reasonable basis to 28 believe that prompt action is required to protect the public 29 health or safety or the environment. When the department takes 30 an interim response before the development of an administrative 19870H1852B3645 - 48 -
1 record, it shall provide the notice required by section 506(b) 2 within 30 days of initiating the response action. In addition to 3 the information required by section 506(b), the notice shall 4 describe the actions which have already been taken and any 5 additional actions to be taken prior to the close of the public 6 comment period under section 506(c). 7 (c) Implementation of action.--After the selection of an 8 interim response or a remedial response, the department may 9 implement all or any part of the selected action by doing any of 10 the following: 11 (1) Issuing an order to a responsible person. This 12 paragraph does not prohibit action under paragraph (2). 13 (2) Taking the action itself. This paragraph does not 14 prohibit action under paragraph (1). 15 (d) Orders.--Orders issued under this section include, but 16 are not limited to: 17 (1) Orders requiring a responsible person to take a 18 response action. 19 (2) Orders restraining a person from interfering with a 20 response action. 21 (3) Orders modifying a response action, including 22 response actions which had been previously approved by the 23 department. 24 (e) Judicial action.--The department may file an action to 25 enforce an order issued under this section in Commonwealth Court 26 or in any other court of competent jurisdiction. The department 27 may include in the same action a civil penalty assessment under 28 section 1104. When the department files such an action, its 29 order shall be enforced and its civil penalty assessment shall 30 be upheld unless the person subject to the order or the civil 19870H1852B3645 - 49 -
1 penalty can demonstrate that the department acted arbitrarily 2 and capriciously on the basis of the administrative record 3 developed under section 506. 4 (f) Costs.-- 5 (1) When the department issues an order under this 6 section, a person subject to the order may seek to recover 7 from the fund the cost of complying with the order by filing 8 an action with the board after completion of the response 9 action. The action must be filed within 60 days after the 10 completion of the required action. To recover costs, the 11 person must demonstrate by a preponderance of the evidence, 12 upon the basis of the administrative record developed under 13 section 506, all of the following: 14 (i) The person was not a responsible person under 15 this act. 16 (ii) The costs sought to be recovered are reasonable 17 in light of the action required by the order. 18 (2) A person subject to an order under this act may also 19 recover reasonable costs for that portion of the response 20 action ordered which the person can demonstrate to be 21 arbitrary and capricious on the basis of the administrative 22 record developed under section 506. 23 (g) Voluntary settlements.--The department, in its 24 discretion, may enter into an agreement with any person, 25 including a person who may be liable under section 701, to 26 perform any response action when the department determines that 27 such action will be properly done in accordance with the 28 department's standards and after such person has submitted a 29 plan and obtained the department's approval of such plan. 30 Whenever practicable and in the public interest, the department 19870H1852B3645 - 50 -
1 may enter into agreements under this section in order to 2 expedite efficient remedial action and minimize litigation. The 3 decision of the department to use or not to use the procedures 4 of this subsection is not subject to judicial review. 5 (H) MIXED FUNDING.--AN AGREEMENT UNDER THIS SECTION MAY <-- 6 PROVIDE THAT THE DEPARTMENT WILL PAY FROM THE FUND A CERTAIN 7 PORTION OF THE TOTAL RESPONSE COSTS OR THE COST OF CERTAIN 8 RESPONSE ACTIONS. THE DEPARTMENT SHALL, TO THE EXTENT 9 PRACTICABLE, ENTER INTO MIXED FUNDING SETTLEMENTS FOR THAT 10 PORTION OF THE RESPONSE COSTS OR DAMAGES ALLOCABLE TO PERSONS 11 AGAINST WHOM RECOVERY CANNOT BE OBTAINED BY REASON OF 12 INSOLVENCY, DISSOLUTION, LACK OF JURISDICTION BY PENNSYLVANIA 13 COURTS OR OTHER SIMILAR REASONS. 14 (I) DISCRETIONARY COVENANTS.--TO ENCOURAGE THE VOLUNTARY AND 15 TIMELY COOPERATION OF RESPONSIBLE PARTIES IN THE CLEANUP OF 16 CERTAIN HAZARDOUS WASTE SITES, THE DEPARTMENT MAY, IN ITS 17 DISCRETION, PROVIDE ANY PERSON WITH A COVENANT NOT TO SUE 18 CONCERNING ANY LIABILITY TO THE COMMONWEALTH UNDER THIS ACT, 19 INCLUDING FUTURE LIABILITY, RESULTING FROM A RELEASE OR 20 THREATENED RELEASE OF A HAZARDOUS SUBSTANCE ADDRESSED BY AN 21 ONSITE REMEDIAL ACTION WHERE: 22 (1) THE COVENANT NOT TO SUE IS IN THE PUBLIC INTEREST. 23 (2) THE COVENANT NOT TO SUE WOULD EXPEDITE RESPONSE 24 ACTION CONSISTENT WITH SECTIONS 102 AND 104. 25 (3) THE RESPONSE ACTION HAS BEEN APPROVED BY THE 26 DEPARTMENT. 27 (J) SPECIAL COVENANTS NOT TO SUE.--IN THE CASE OF ANY PERSON 28 TO WHOM THE DEPARTMENT IS AUTHORIZED UNDER SUBSECTION (C) TO 29 PROVIDE A COVENANT NOT TO SUE, THE DEPARTMENT SHALL PROVIDE SUCH 30 A PERSON WITH A COVENANT NOT TO SUE WITH RESPECT TO FUTURE 19870H1852B3645 - 51 -
1 LIABILITY TO THE COMMONWEALTH UNDER THIS ACT FOR A FUTURE 2 RELEASE OR THREATENED RELEASE OF HAZARDOUS SUBSTANCES FROM SUCH 3 FACILITY FOR THE PORTION OF REMEDIAL ACTION WHICH INVOLVES THE 4 TREATMENT OF HAZARDOUS SUBSTANCES SO AS TO DESTROY, ELIMINATE OR 5 PERMANENTLY IMMOBILIZE THE HAZARDOUS CONSTITUENTS OF SUCH 6 SUBSTANCES, SO THAT, IN THE JUDGMENT OF THE DEPARTMENT, THE 7 SUBSTANCES NO LONGER PRESENT A CURRENT OR CURRENTLY FORESEEABLE 8 FUTURE SIGNIFICANT RISK TO PUBLIC HEALTH, WELFARE OR THE 9 ENVIRONMENT, NO BY-PRODUCT OF THE TREATMENT OR DESTRUCTION 10 PROCESS PRESENTS ANY SIGNIFICANT HAZARD TO PUBLIC HEALTH, 11 WELFARE OR THE ENVIRONMENT; AND A PERSON PROVIDED SUCH COVENANT 12 NOT TO SUE SHALL NOT BE LIABLE TO THE COMMONWEALTH UNDER THIS 13 ACT WITH RESPECT TO SUCH A RELEASE OR THREATENED RELEASE AT A 14 FUTURE TIME. 15 (K) REQUIREMENT THAT REMEDIAL ACTION BE COMPLETED.--A 16 COVENANT NOT TO SUE CONCERNING FUTURE LIABILITY TO THE 17 COMMONWEALTH SHALL TAKE EFFECT WHEN THE DEPARTMENT CERTIFIES 18 THAT REMEDIAL ACTION HAS BEEN SUBSTANTIALLY COMPLETED, IN 19 ACCORDANCE WITH THE REQUIREMENTS OF THIS ACT, AT THE SITE THAT 20 IS THE SUBJECT OF SUCH COVENANT. 21 (L) FACTORS.--IN ASSESSING THE APPROPRIATENESS OF A COVENANT 22 NOT TO SUE UNDER SUBSECTION (C) AND ANY CONDITION TO BE INCLUDED 23 IN A COVENANT NOT TO SUE UNDER SUBSECTION (C) OR (D), THE 24 DEPARTMENT SHALL CONSIDER WHETHER THE COVENANT OR CONDITION IS 25 IN THE PUBLIC INTEREST ON THE BASIS OF FACTORS COMPARABLE WITH, 26 BUT NOT STRICTER THAN, THOSE ENUMERATED IN SECTION 122(F)(4) OF 27 THE FEDERAL SUPERFUND ACT. 28 Section 506. Administrative record. 29 (a) Contents.--The administrative record upon which a 30 response action is based shall consist of all of the following: 19870H1852B3645 - 52 -
1 (1) The notice issued under subsection (b). 2 (2) The department's description of the action and the <-- 3 information which supports the action. 4 (2) ALL INFORMATION, DATA, STUDIES AND REPORTS KNOWN TO <-- 5 THE DEPARTMENT RELATING TO THE RELEASE OR THREATENED RELEASE, 6 AND TO THE SELECTION, DESIGN AND ADEQUACY OF THE RESPONSE 7 ACTION. 8 (2) INFORMATION, INCLUDING, BUT NOT LIMITED TO, STUDIES, <-- 9 INSPECTION REPORTS, SAMPLE RESULTS AND PERMIT FILES, WHICH IS 10 KNOWN AND REASONABLY AVAILABLE TO THE DEPARTMENT AND WHICH 11 RELATES TO THE RELEASE OR THREATENED RELEASE AND TO THE 12 SELECTION, DESIGN AND ADEQUACY OF THE RESPONSE ACTION. 13 (3) Written comments submitted during the public comment 14 period under subsection (c). 15 (4) Transcripts of comments made at the public hearing 16 held under subsection (d). 17 (5) The department's statement of the basis and purpose 18 for its decision, including findings of fact, an analysis of 19 the alternatives considered and the reasons for selecting the 20 proposed response action, and its response to significant 21 comments made during the public comment period. 22 (6) The docket maintained under subsection (f), listing 23 the contents of the administrative record. 24 (b) Notice.-- 25 (1) The department shall issue a notice setting forth 26 all of the following: 27 (i) A brief analysis of the response action and 28 alternative actions that were considered. 29 (ii) The time and place during which the information 30 listed on the docket maintained under subsection (f) may 19870H1852B3645 - 53 -
1 be inspected and copied. 2 (iii) A specified time and place for providing 3 written comments on the response action. 4 (iv) The time and place at which a public hearing 5 will be held to receive oral comments on the response 6 action. 7 (2) The notice shall be mailed to responsible persons 8 whose identities and addresses are known to the department. 9 IN ADDITION, NOTICE SHALL BE MAILED TO ALL HOLDERS OF LIENS <-- 10 OF RECORD FILED AGAINST ALL PROPERTIES SUBJECT TO SECTION 11 509(B). The notice shall also be published in a newspaper of 12 general circulation in the area in which the release has 13 occurred and in the Pennsylvania Bulletin. The failure to 14 provide this notice does not affect a responsible person's 15 liability under this act. 16 (c) Public comment.-- 17 (1) The public comment period shall extend for at least 18 90 days from the date that notice is published in the 19 Pennsylvania Bulletin. During the public comment period the 20 department shall make available for inspection during normal 21 business hours all of the following: 22 (i) The department's description of the response 23 action. 24 (ii) The information supporting the response action. <-- 25 (II) ALL INFORMATION, DATA, STUDIES AND REPORTS <-- 26 KNOWN TO THE DEPARTMENT RELATING TO THE RELEASE OR 27 THREATENED RELEASE, AND TO THE SELECTION, DESIGN AND 28 ADEQUACY OF THE RESPONSE ACTION. 29 (II) INFORMATION, INCLUDING, BUT NOT LIMITED TO, <-- 30 STUDIES, INSPECTION REPORTS, SAMPLE RESULTS AND PERMIT 19870H1852B3645 - 54 -
1 FILES, WHICH IS KNOWN AND REASONABLY AVAILABLE TO THE 2 DEPARTMENT AND WHICH RELATES TO THE RELEASE OR THREATENED 3 RELEASE AND TO THE SELECTION, DESIGN AND ADEQUACY OF THE 4 RESPONSE ACTION. 5 (iii) Written comments submitted during the public 6 comment period. 7 (iv) The docket maintained under subsection (f). 8 (2) The public comment period shall extend at least 30 9 days after the public hearing to provide an opportunity for 10 the submission of rebuttal and supplementary information. 11 (d) Public hearing.--At least one public hearing shall be 12 conducted near the site of the response action to allow 13 interested persons to give oral or written comments. A 14 transcript shall be kept of oral presentations. The hearing 15 shall be scheduled at least 30 days after the publication of the 16 notice in the Pennsylvania Bulletin. 17 (e) Decision.--At the close of the public comment period, 18 the department shall file a statement of the basis and purpose 19 for its decision. THE STATEMENT SHALL INCLUDE FINDINGS OF FACT, <-- 20 AN ANALYSIS OF THE ALTERNATIVES CONSIDERED AND THE REASONS FOR 21 SELECTING THE PROPOSED RESPONSE ACTION. It shall include an 22 explanation of any major changes in the response action from 23 that described in the notice. The department shall also file a 24 response to each of the significant comments, criticisms and new 25 data submitted in oral or written presentations during the 26 public comment period. 27 (f) Docket.--The department shall maintain a docket listing 28 of all the items which form the administrative record, and it 29 shall notify a person submitting a comment that it has been 30 entered on the docket. It shall be the responsibility of the 19870H1852B3645 - 55 -
1 person submitting written comments to either verify that the 2 comments have been noted on the docket or to notify the 3 department, before the end of the public comment period, that 4 the docket does not note the submitted written comment. 5 (g) Closing.--The administrative record shall be closed, 6 once the department has filed its statement and response under 7 subsection (e). The department's decision may not be based, in 8 whole or in part, upon information which has not been noted on 9 the docket as of the date the administrative record is closed. 10 The administrative record may be reopened only for any of the 11 following reasons: 12 (1) Additional information which the department 13 determines to be of central relevance to the selected action 14 is obtained during the implementation of the response action. 15 (2) A person raising an objection to the response action 16 can demonstrate that it was impracticable to raise the 17 objection during the public comment period or that the 18 grounds for the objection arose after the public comment 19 period. 20 (3) The department wishes to document its response 21 costs. 22 (4) A case is remanded to the department under section 23 508. 24 (h) Reopening.--To reopen the administrative record, the 25 department shall provide a notice setting forth the purpose of 26 the reopening and the time and place for submitting written 27 comments during a 60-day public comment period. The department 28 may hold a public hearing if a written request is received 29 within 30 days of publication of the notice of reopening. The 30 docket shall note additional information submitted by the 19870H1852B3645 - 56 -
1 department, written comments, oral comments made at the public 2 hearing and the department's responses to the significant 3 comments. The department's decision not to reopen the 4 administrative record may only be reviewed as provided in 5 section 508. 6 Section 507. Recovery of response costs. 7 (a) General rule.--A responsible person under section 701 or 8 a person who causes a release or threat of a release of a 9 hazardous substance or causes a public nuisance shall be liable 10 for the response costs and for damages to natural resources. The 11 department, a Commonwealth agency, or a municipality which 12 undertakes to abate a public nuisance or take a response action 13 may recover those response costs and natural resource damages in 14 an action in equity brought before a court of competent 15 jurisdiction. In addition, the board is given jurisdiction over 16 actions by the department to recover response costs and damages 17 to natural resources. 18 (b) Amount.--In an action to recover response costs and 19 natural resource damages, the department shall include 20 administrative and legal costs incurred from its initial 21 investigation up to the time that it recovers its costs. The 22 amount attributable to administrative and legal costs shall be 23 10% of the amount paid for the response action or the actual 24 costs, whichever is greater. 25 (c) Punitive damages.--A person who WILLFULLY fails to <-- 26 comply with an order of the department requiring a response 27 action or the abatement of a public nuisance shall be liable for 28 punitive damages in an amount which is at least equal to but not 29 more than three times the costs recoverable under this section. 30 A party shall not be liable for punitive damages when a court 19870H1852B3645 - 57 -
1 reviewing the order under section 508 finds that the 2 department's order was invalid as to that party. 3 (d) Effect of damages assessment.--A determination or 4 assessment of damages to natural resources for the purposes of 5 this act, the Federal Superfund Act, or section 311 of the 6 Federal Water Pollution Control Act (62 Stat. 1155, 33 U.S.C. § 7 1321) made by the department or other trustee shall have the 8 force and effect of a rebuttable presumption on behalf of the 9 trustee in an administrative or judicial proceeding under this 10 act, the Federal Superfund Act or section 311 of the Federal 11 Water Pollution Act. 12 (e) Civil penalty.--When the department files an action to 13 recover its response costs and natural resources damage 14 assessment, it may also seek civil penalties under section 1104. 15 The department's entitlement to recover its response costs, its 16 assessment of natural resources' damages and its assessment of 17 civil penalties shall be reviewed solely upon the basis of the 18 administrative record developed under section 506. Its right to 19 recover response costs, natural resources' damages and civil 20 penalties shall be upheld unless the liable person can 21 demonstrate that the department acted arbitrarily and 22 capriciously on the basis of the administrative record developed 23 under section 506. 24 (f) Recycled oil.-- 25 (1) When recycled oil is not mixed with any other 26 hazardous substance and is stored, treated, transported and 27 otherwise managed in compliance with regulations or standards 28 promulgated under applicable State and Federal law relating 29 to recycled oil, then all of the following apply: 30 (i) No person may recover from a service station 19870H1852B3645 - 58 -
1 operator, under section 702(a)(2) or (3), response costs 2 or damages resulting from a release or threatened release 3 of recycled oil. 4 (ii) Section 1102 does not apply against a service 5 station operator other than a service station operator 6 described in section 702(a)(1). 7 (2) For purposes of this subsection, a service station 8 operator may presume that a small quantity of used oil is not 9 mixed with other hazardous substances when it has been 10 removed from the engine of a motor vehicle or appliance by 11 the owner of the vehicle or appliance and is presented to the 12 operator for collection, accumulation and delivery to an oil 13 recycling facility. 14 Section 508. Administrative and judicial review of response 15 actions. 16 (a) General rule.--Notwithstanding any other provision of 17 law, the provisions of this section shall provide the exclusive 18 method of challenging either the administrative record developed 19 under section 506 or a decision of the department based upon the 20 administrative record. 21 (b) Timing of review.--Neither the board nor a court shall 22 have jurisdiction to review THE SELECTION AND ADEQUACY OF a <-- 23 response action taken by the department or ordered by the <-- 24 department under section 505 until the department files an 25 action to enforce the order or to recover its response costs. <-- 26 (c) Grounds.--A challenge to THE SELECTION AND ADEQUACY OF a <-- 27 response action shall be limited to the administrative record 28 developed under section 506. In a challenge to a response 29 action, an objection shall be waived unless it was raised during 30 the public comment period provided under section 506(c). 19870H1852B3645 - 59 -
1 Notwithstanding any provision of section 1921-A of the act of 2 April 9, 1929 (P.L.177, No.175), known as The Administrative 3 Code of 1929, the record for judicial or administrative review 4 shall consist exclusively of the material referred to in section 5 506(a). 6 (d) Procedural errors.--Procedural errors in the development 7 of the administrative record shall not be a basis for 8 challenging a response action unless the errors were so serious 9 and related to matters of such central relevance to the response 10 action that the action would have been significantly changed had 11 the errors not been made. The person asserting the significance 12 of the procedural errors shall have the burden of proving that 13 the action would have been significantly changed. 14 (e) Remand.--When a response action is demonstrated to be 15 arbitrary and capricious on the basis of the administrative 16 record developed under section 506, or when a procedural error 17 occurred in the development of the administrative record which 18 (error) would have significantly changed the response action, 19 the following apply: 20 (1) When additional information could affect the outcome 21 of the case, the matter shall be remanded to the department 22 for reopening the administrative record. 23 (2) When additional information could not affect the 24 outcome of the case, the department's enforcement of its 25 order or its recovery of response costs shall be limited only 26 as to that portion of the response action found to be 27 arbitrary and capricious or the result of a procedural error 28 which would have significantly changed the action. 29 Section 509. Private cause of action. <-- 30 Any person responsible for a release of a hazardous substance 19870H1852B3645 - 60 -
1 under this act shall also be strictly liable for any personal 2 injury or property damage resulting from the release or for any 3 response costs incurred which are not inconsistent with a 4 departmental action pursuant to section 505. 5 Section 510. Superlien. 6 (a) Limit of lien.--The lien shall be limited to the amount 7 of the judgment for costs and penalties as provided in 8 subsection (b); and shall not apply to property used as 9 residential property as provided in subsection (d). 10 (b) Establishment.--An award of response costs, assessment 11 of natural resources' damages or assessment of civil penalties 12 shall constitute a judgment against the party found liable. This 13 judgment may be collected in any manner provided by law. The 14 department shall send a notice of lien to the prothonotary or 15 equivalent official of the county in which the responsible party 16 has real or personal property, setting forth the amount of the 17 award of costs, of the assessment of damages and of the 18 assessment of penalties. The prothonotary or equivalent official 19 shall promptly enter upon the civil judgment or order docket the 20 name and address of the responsible party and the amount of the 21 lien as set forth in the notice of lien. Upon entry by the 22 prothonotary, the lien shall attach to the revenue and all real 23 and personal property of the responsible party, whether or not 24 the responsible party is insolvent. 25 (c) Registry.--There is established a central registry of 26 all liens filed under this act in the Department of State. The 27 Commonwealth shall file a notice of lien with the Secretary of 28 the Commonwealth in addition to filings with a prothonotary or 29 equivalent official. 30 (d) Priority.--The notice of lien filed under this section 19870H1852B3645 - 61 -
1 shall create a lien with priority over all other claims or liens 2 filed. When the property is used for residential purposes, this 3 notice of lien shall not affect a valid lien, right or interest 4 in the property filed in accordance with established procedures 5 prior to the filing of this notice of lien. For purposes of this 6 section, residential purposes include all mortgages eligible for 7 purchase by a corporate instrumentality of the United States 8 Government. 9 (e) Certain interests not affected.--The notice of lien 10 shall not affect a lien, mortgage or security interest in the 11 property which secures a loan or extension of credit if the loan 12 or extension of credit, or the commitment to make the loan or 13 extension of credit, was made in good faith and without 14 knowledge that there were hazardous substances on the property 15 and if prior to the time the loan or commitment was made the 16 lender received a written report of an actual inspection of the 17 property, within a reasonable time immediately prior to the date 18 of the loan or commitment, which did not reveal any indication 19 of the presence of hazardous substances. 20 (f) Time.--The notice of lien filed under this section 21 affecting property of a responsible person which is not the 22 subject of a response action shall have priority from the day of 23 the filing of the notice of the lien over all other claims and 24 liens filed against the property; but it shall not affect any 25 valid lien, right, or interest in the property filed in 26 accordance with established procedure prior to the filing of a 27 notice of lien under this subsection. 28 (g) Notice.--Notice shall be mailed to all known holders of 29 liens of record filed against parties subject to this section. 30 SECTION 509. LIEN. <-- 19870H1852B3645 - 62 -
1 (A) ESTABLISHMENT.--AN AWARD OF RESPONSE COSTS, ASSESSMENT
2 OF NATURAL RESOURCES' DAMAGES OR ASSESSMENT OF CIVIL PENALTIES
3 SHALL CONSTITUTE A JUDGMENT AGAINST THE RESPONSIBLE PERSON. THE
4 JUDGMENT MAY BE COLLECTED IN ANY MANNER PROVIDED BY LAW. THE
5 DEPARTMENT SHALL SEND A NOTICE OF LIEN TO THE PROTHONOTARY OR
6 EQUIVALENT OFFICIAL OF THE COUNTY IN WHICH THE RESPONSIBLE PARTY
7 HAS REAL OR PERSONAL PROPERTY, SETTING FORTH THE AMOUNT OF THE
8 AWARD OF COSTS, OF THE ASSESSMENT OF DAMAGES AND OF THE
9 ASSESSMENT OF PENALTIES. THE PROTHONOTARY OR EQUIVALENT OFFICIAL
10 SHALL PROMPTLY ENTER UPON THE CIVIL JUDGMENT OR ORDER DOCKET THE
11 NAME AND ADDRESS OF THE RESPONSIBLE PERSON AND THE AMOUNT OF THE
12 LIEN AS SET FORTH IN THE NOTICE OF LIEN. UPON ENTRY BY THE
13 PROTHONOTARY, THE LIEN SHALL ATTACH TO THE REVENUE AND ALL REAL
14 AND PERSONAL PROPERTY OF THE RESPONSIBLE PERSON, WHETHER OR NOT
15 THE RESPONSIBLE PERSON IS INSOLVENT.
16 (B) REGISTRY.--THERE SHALL BE ESTABLISHED A CENTRAL REGISTRY
17 OF ALL LIENS FILED UNDER THIS ACT IN THE DEPARTMENT OF STATE.
18 THE COMMONWEALTH SHALL FILE A NOTICE OF LIEN WITH THE SECRETARY
19 OF THE COMMONWEALTH IN ADDITION TO FILINGS WITH A PROTHONOTARY
20 OR EQUIVALENT OFFICIAL.
21 (C) PRIORITY.--THE NOTICE OF LIEN FILED UNDER THIS SECTION
22 AFFECTING PROPERTY OF A RESPONSIBLE PERSON, INCLUDING PROPERTY
23 SUBJECT TO A RESPONSE ACTION, SHALL CREATE A LIEN WHICH SHALL
24 HAVE PRIORITY FROM THE DAY OF THE FILING OF THE NOTICE OF THE
25 LIEN OVER ALL SUBSEQUENT CLAIMS AND LIENS AGAINST THE PROPERTY,
26 BUT IT SHALL NOT AFFECT ANY VALID LIEN, RIGHT OR INTEREST IN THE
27 PROPERTY FILED IN ACCORDANCE WITH ESTABLISHED PROCEDURE PRIOR TO
28 THE FILING OF A NOTICE OF LIEN UNDER THIS SUBSECTION.
29 Section 511 510. Evaluation grant. <--
30 The department may make available a reasonable sum as a grant
19870H1852B3645 - 63 -
1 to the governing body of the host municipality of a site where 2 the department is considering a remedial response. The host 3 municipality shall use this sum solely to conduct an independent 4 technical evaluation of the proposed remedial response. The 5 grant shall not exceed $50,000 unless the department promulgates 6 regulations establishing a schedule for grants. 7 Section 512 511. Acquisition of real property. <-- 8 (a) General rule.--The department may acquire, by purchase, 9 lease, condemnation, donation or otherwise, real property or an 10 interest in real property that the department, in its 11 discretion, determines is needed to conduct a response action 12 under this act. The department has no duty to acquire any 13 interest in real property under this act. 14 (b) Sovereign immunity.--The Commonwealth shall not be 15 liable under this act as a result of acquiring an interest in 16 real estate under this section, nor shall anything in this act 17 be construed as a waiver of sovereign immunity or a waiver under 18 42 Pa.C.S. § 8522 (relating to exceptions to sovereign 19 immunity). 20 Section 513 512. After closure and conveyance of property. <-- 21 (a) General rule.--A site at which hazardous substances 22 remain after completion of a response action shall not be put to 23 a use which would disturb or be inconsistent with the response 24 action implemented. The department shall have the authority to 25 issue an order precluding or requiring cessation of activity at 26 a facility which the department finds would disturb or be 27 inconsistent with the response action implemented. A person 28 adversely affected by the order may file an appeal with the 29 board. The department shall require the recorder of deeds to 30 record an order under this subsection in a manner which will 19870H1852B3645 - 64 -
1 assure its disclosure in the ordinary course of a title search
2 of the subject property. An order under this subsection, when
3 recorded, shall be binding upon subsequent purchasers.
4 (b) Acknowledgment.--The grantor, in every deed for the
5 conveyance of property on which a hazardous substance is either
6 presently being disposed or has ever been disposed by the
7 grantor or to the grantor's actual knowledge, shall include in
8 the property description section of the deed an acknowledgment
9 of the hazardous substance disposal. The acknowledgment shall
10 include, but not be limited to, the extent the information is
11 available, the surface area size and exact location of the
12 disposed substances and a description of the types of hazardous
13 substances contained. This property description shall be made a
14 part of the deed for all future conveyances or transfers of the
15 subject property.
16 Section 514 513. Contracting. <--
17 (a) Authority.--The department shall have the authority to
18 enter into a contract with any person or firm to have them
19 provide assistance to the department for the implementation of
20 this act.
21 (b) Indemnification.--Any person who enters into a contract
22 with the department to assist the department in implementing
23 this chapter, shall not be required to indemnify the
24 Commonwealth or Commonwealth employees against claims arising
25 out of performance of the contract.
26 CHAPTER 7
27 LIABILITY AND COST RECOVERY
28 Section 701. Responsible person.
29 (a) General rule.--Except for releases of hazardous
30 substances expressly and specifically approved under a valid
19870H1852B3645 - 65 -
1 Federal or State permit, a person shall be responsible for a 2 release or threatened release of a hazardous substance from a 3 site when any of the following apply: 4 (1) The person owns or operates the site: 5 (i) when a hazardous substance is placed or comes to 6 be located in or on a site; 7 (ii) when a hazardous substance is located in or on 8 the site, but before it is released; or 9 (iii) during the time of the release or threatened 10 release. 11 (2) The person generates, owns or possesses a hazardous 12 substance and arranges by contract, agreement or otherwise 13 for the disposal, treatment or transport for disposal or 14 treatment of the hazardous substance. THIS PARAGRAPH DOES NOT <-- 15 APPLY TO A PERSON WHO OWNS OR OPERATES EQUIPMENT FOR THE 16 RECOVERY OR PROCESSING, INCLUDING RECIRCULATION OF 17 CONDENSATE, OF METHANE UNLESS THE RELEASE OR THREATENED 18 RELEASE IS PRIMARILY CAUSED BY THE ACTIVITIES OF THE PERSON. 19 IF THE RELEASE OR THREATENED RELEASE IS PRIMARILY CAUSED BY 20 THE ACTIVITIES OF A PERSON WHO OWNS OR OPERATES EQUIPMENT FOR 21 THE RECOVERY OR PROCESSING, INCLUDING RECIRCULATION OF 22 CONDENSATE, OF METHANE, THE PERSON'S RESPONSIBILITY SHALL BE 23 LIMITED TO COSTS AND DAMAGES PRIMARILY CAUSED BY THE PERSON'S 24 ACTIVITIES. 25 (3) The person accepts hazardous substances for 26 transport to disposal or treatment facilities, incineration 27 vessels or sites selected by such person from which there is 28 a release or a threatened release of a hazardous substance 29 which causes the incurrence of response costs. 30 (4) A RELEASE OR THREATENED RELEASE IS PRIMARILY CAUSED <-- 19870H1852B3645 - 66 -
1 BY A PERSON WHO OWNS OR OPERATES EQUIPMENT FOR THE RECOVERY 2 OR PROCESSING, INCLUDING RECIRCULATION OF CONDENSATE, OF 3 METHANE. RESPONSIBILITY UNDER THIS PARAGRAPH SHALL BE LIMITED 4 TO COSTS AND DAMAGES PRIMARILY CAUSED BY THE ACTIVITIES OF 5 THE PERSON. 6 (b) Exceptions.-- 7 (1) An owner of real property is not responsible for the 8 release or threatened release of a hazardous substance from a 9 site in or on the property when the owner demonstrates to the 10 department that all of the following are true: 11 (i) The real property on which the site concerned is 12 located was acquired by the owner after the disposal or 13 placement of a hazardous substance on, in or at the site. 14 (ii) The owner has exercised due care with respect 15 to the hazardous substances concerned, taking into 16 consideration the characteristics of such hazardous 17 substances, in light of all relevant facts and 18 circumstances. 19 (iii) The owner took precautions against foreseeable 20 acts or omissions of any third party and the consequences 21 that could foreseeably result from such acts or 22 omissions. 23 (iv) When the owner obtained actual knowledge of the 24 release or threatened release of a hazardous substance at 25 the site when the owner owned the real property, and the 26 owner did not subsequently transfer ownership of the 27 property to another person without disclosing such 28 knowledge. 29 (v) The owner has not, by act or omission, caused or 30 contributed to the release or threatened release of a 19870H1852B3645 - 67 -
1 hazardous substance which is the subject of the action 2 relating to the site. 3 (vi) The owner meets one of these requirements: 4 (A) At the time the owner acquired the site, the 5 owner did not know, and had no reason to know, that a 6 hazardous substance which is the subject of the 7 release or threatened release was disposed of on, in 8 or at the site. For purposes of this subparagraph, 9 the owner must have undertaken, at the time of 10 acquisition, all appropriate inquiries into the 11 previous ownership and uses of the property 12 consistent with good commercial or customary practice 13 in an effort to minimize liability. The department 14 shall take into account specialized knowledge or 15 experience on the part of the owner, the relationship 16 of the purchase price to the value of the property if 17 uncontaminated, commonly known or reasonably 18 ascertainable information about the property, the 19 obviousness of the presence or likely presence of 20 contamination at the property and the ability to 21 detect the contamination by appropriate inspection. 22 (B) The owner is a government entity which 23 acquired the site by escheat, through any other 24 involuntary transfer or acquisition or through the 25 exercise of eminent domain authority by purchase or 26 condemnation. 27 (C) The owner acquired the site by inheritance 28 or bequest. 29 (D) The owner is a financial institution, an <-- 30 affiliate of a financial institution or a parent 19870H1852B3645 - 68 -
1 owner of a financial institution, which acquired the 2 site, by foreclosure or by deed in lieu of 3 foreclosure before the site was included on a Federal 4 or State superfund ranking list and did not manage or 5 control activities or conditions at the site which 6 contributed to the release or threatened release of a 7 hazardous substance. For the purposes of this 8 subsection, management shall not include operations 9 by virtue of supervision of the finances or fiscal 10 operations of a responsible person in connection with 11 a loan or fiscal obligation to that responsible 12 person. 13 (D) THE OWNER IS A FINANCIAL INSTITUTION OR AN <-- 14 AFFILIATE OF A FINANCIAL INSTITUTION OR A CORPORATION 15 INSTRUMENTALITY OF THE FEDERAL GOVERNMENT WHICH 16 ACQUIRED THE SITE BY FORECLOSURE OR BY ACCEPTANCE OF 17 A DEED IN LIEU OF FORECLOSURE. 18 (vii) The only basis of liability for the landowner 19 is ownership of the land. 20 (2) This subsection shall not apply to an SUBSECTION (A) <-- 21 SHALL NOT APPLY TO A CURRENT OR PAST owner of real property 22 if that, AT THE TIME OF OWNERSHIP, THE real property is <-- 23 primarily used or is under construction as single or multi- 24 family housing, and that owner was not responsible for 25 placing the hazardous substance on the property. 26 (c) Employees.--When a person who is responsible for a 27 release or threatened release under subsection (a) is an 28 employee who is acting in the scope of employment: 29 (1) The employee is subject to liability under this 30 section only when the employee's conduct with respect to the 19870H1852B3645 - 69 -
1 hazardous substance was negligent under circumstances in 2 which the employee knew that the substance was hazardous and 3 that the employee's conduct could result in serious harm. 4 (2) The employer shall be considered a person 5 responsible for the release or threatened release and is 6 subject to liability under this section regardless of the 7 degree of care exercised by the employee. 8 Section 702. Scope of liability. 9 (a) General rule.--A person who is responsible for a release 10 or threatened release of a hazardous substance from a site as 11 specified in section 701 is strictly liable for the following 12 response costs and damages which result from the release or 13 threatened release or to which the release or threatened release 14 significantly contributes: 15 (1) Costs of interim response which are reasonable in 16 light of the information available to the department at the 17 time the interim response action was taken. 18 (2) Reasonable and necessary or appropriate costs of 19 remedial response incurred by the United States, the 20 Commonwealth or a political subdivision. 21 (3) Other reasonable and necessary or appropriate costs 22 of response incurred by any other person. 23 (4) Damages for injury to, destruction of, or loss of 24 natural resources within this Commonwealth or belonging to, 25 managed by, controlled by or appertaining to the United 26 States, the Commonwealth or a political subdivision. This 27 paragraph includes the reasonable costs of assessing injury, 28 destruction or loss resulting from such a release. 29 (5) The cost of a health assessment or health effects 30 study. 19870H1852B3645 - 70 -
1 (b) Interest.--
2 (1) The amounts recoverable in an action under sections
3 507 and 1101 include interest on the amounts recoverable
4 under subsection (a). Interest shall accrue from the later
5 of:
6 (i) the date payment of a specified amount is
7 demanded in writing; or
8 (ii) the date of the expenditure concerned.
9 (2) The rate of interest on the outstanding unpaid
10 balance of the amounts recoverable under sections 507 and
11 1101 shall be 6% annually.
12 (c) Contractors.--A person or company who has entered into a
13 contract with the department to assist the department in
14 implementing this act OR A RESPONSE ACTION CONTRACTOR UNDER <--
15 SECTION 119 OF THE FEDERAL SUPERFUND ACT (42 U.S.C. § 9619)
16 shall not be held liable under this act for a release of a
17 hazardous substance arising out of performance of the contract A <--
18 RESPONSE ACTION when the release is not caused by the
19 contractor's negligence.
20 (d) Commonwealth employees.--Persons employed by the
21 Commonwealth shall not be held liable for a release of a
22 hazardous substance or contaminant, or any other damages
23 incurred, as a result of actions or omissions occurring when
24 acting in their official capacity.
25 (E) CONSTRUCTION OF LIABILITY.--WITH THE EXCEPTION OF <--
26 SECTIONS 706 AND 708 AS APPLIED SOLELY TO RESPONSIBLE PERSONS
27 AND THE DEPARTMENT, NOTHING IN THIS ACT SHALL BE CONSTRUED TO
28 ALTER ANY RIGHTS OF ACTION OR REMEDIES NOW OR HEREAFTER EXISTING
29 UNDER THE LAWS OF THIS COMMONWEALTH.
30 Section 703. Defenses to liability.
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1 (a) Grounds.--There shall be no liability under section 701 2 for a person otherwise liable who can establish, that the 3 release or threat of release of a hazardous substance and the 4 damages resulting therefrom were caused solely by any of the 5 following: 6 (1) An act of God. 7 (2) An act of war. 8 (3) An act or omission of a third party other than an 9 employee, agent or contractor of the responsible person or 10 one whose act or omission occurs in connection with an 11 agreement or contractual relationship (EXCEPT WHERE THE SOLE <-- 12 CONTRACTUAL ARRANGEMENTS ARISE EITHER FROM A PUBLISHED TARIFF 13 AND ACCEPTANCE FOR CARRIAGE BY A COMMON CARRIER BY RAIL, OR 14 AN EXEMPT CIRCULAR OF TRANSPORTATION CONTRACT IN LIEU OF A 15 PUBLISHED TARIFF FOR CARRIAGE BY A COMMON CARRIER BY RAIL), 16 if the responsible person: 17 (i) exercised due care with respect to the hazardous 18 substance concerned, taking into consideration the 19 characteristics of such hazardous substance, in light of 20 all relevant facts and circumstances; and 21 (ii) took precautions against foreseeable acts or 22 omissions of any such third party and the consequences 23 that could foreseeably result from those acts or 24 omissions. 25 (b) Assistance.--Except as provided in subsection (c), no 26 person shall be liable under this act for costs or damages as a 27 result of actions taken or omitted in the course of rendering 28 care, assistance or advice in accordance with this act or at the 29 direction of the department with respect to an incident creating 30 a danger to public health, safety or welfare or the environment 19870H1852B3645 - 72 -
1 as a result of a release of a hazardous substance or contaminant 2 or the threat thereof. This subsection does not preclude 3 liability for costs or damages as the result of negligence on 4 the part of the person. 5 (c) Government action.--No State agency or political 6 subdivision shall be liable under this act for costs or damages 7 as a result of actions taken by the State agency or political 8 subdivision in response to a release or threatened release of a 9 hazardous substance generated by or from a site. 10 (d) Burden of proof.--A person claiming a defense provided 11 in this section has the burden to prove all elements of the 12 defense by a preponderance of the evidence. 13 Section 704. Subrogation and insurance. 14 (a) General rule.--An owner or operator of a facility or any 15 other person who may be liable under section 701 may not avoid 16 that liability by means of a conveyance of a right, title or 17 interest in real property, or by an indemnification, a hold 18 harmless agreement, or a similar agreement. 19 (b) Construction.--Nothing in this section shall be 20 construed to do any of the following: 21 (1) Prohibit a party who may be liable under section 701 22 from entering into an agreement by which that party is 23 insured, held harmless or indemnified for part or all of that 24 liability. 25 (2) Prohibit the enforcement of an insurance, a hold 26 harmless or an indemnification agreement. 27 (3) Bar a cause of action brought by a party who may be 28 liable under section 701 or by an insurer or guarantor, 29 whether by right of subrogation or otherwise. 30 Section 705. Contribution. 19870H1852B3645 - 73 -
1 (a) General rule.--A person may seek contribution from a 2 responsible person under section 701, during or following a 3 civil action under sections 507 or 1101. Claims for contribution 4 shall be brought in accordance with this section and the 5 Pennsylvania Rules of Civil Procedure. Nothing in this section 6 shall diminish the right of a person to bring an action for 7 contribution in the absence of a civil action under sections 507 8 or 1101. A liable party's right to contribution shall be limited <-- 9 to the excess of consideration paid to the department over that 10 party's allocated share of liability as determined under this 11 section. 12 (b) Allocation.--In a civil action in which a liable party 13 seeks a contribution claim, the court, or the board in an action 14 brought under section 507 or 1101, shall enter judgment 15 allocating liability among the liable parties. Allocation shall 16 not affect the parties' liability to the department. The burden 17 is on each party to show how liability should be allocated. In 18 determining allocation under this section, the court or the 19 board may use such equitable factors as it deems appropriate. 20 The trier of fact shall consider the following factors: 21 (1) The extent to which each party's contribution to the 22 release of a hazardous substance can be distinguished. 23 (2) The amount of hazardous substance involved. 24 (3) The degree of toxicity of the hazardous substance 25 involved. 26 (4) The degree of involvement of and care exercised by 27 each party in manufacturing, treating, transporting, and 28 disposing of the hazardous substance. 29 (5) The degree of cooperation by each party with 30 Federal, State, or local officials to prevent harm to the 19870H1852B3645 - 74 -
1 public health or the environment. 2 (6) Knowledge by each party of the hazardous nature of 3 the substance. 4 (c) Settlements.-- 5 (1) When the department enters into an administrative or 6 judicially approved settlement of a civil action brought 7 under sections 507 or 1101, the amount of the department's 8 claim under that civil action shall be reduced by the amount 9 of the consideration paid to the department or the allocated 10 amount of the settling party's liability, whichever is less. 11 A settlement shall not otherwise affect the department's 12 claim under sections 507 or 1101. 13 (2) A person who has resolved its liability to the 14 department in an administrative or judicially approved 15 settlement shall not be liable for claims for contribution 16 regarding matters addressed in the settlement unless the 17 terms of the settlement provide otherwise. The settling party 18 may seek contribution from a nonsettling party to recover the 19 consideration paid in excess of its allocated share of 20 liability as determined by the court or the board. 21 (3) When the department has obtained less than complete 22 relief from a person who has resolved its liability to the 23 department in an administrative or judicially approved 24 settlement, the department may bring an action against a 25 person who has not so resolved its liability. A nonsettling 26 party may seek contribution from any other nonsettling party 27 or any settling party as allowed under this section. 28 (d) Federal funds; cooperative agreements.--The Commonwealth 29 shall actively seek to obtain Federal funds to which it is 30 entitled under the Federal Superfund Act and may take actions 19870H1852B3645 - 75 -
1 necessary to enter into contractual or cooperative agreements 2 under section 104(c)(3) and (d)(1) of the Federal Superfund Act 3 (42 U.S.C. § 9604(c)(3) and (d)(a)). 4 Section 706. De minimis settlements. 5 (a) Authorization.--The department may enter into a de 6 minimis settlement with any person or group of persons who have 7 demonstrated to the department's satisfaction that the following 8 conditions have been met: 9 (1) The volume of hazardous substances contributed by 10 that party to the site is minimal in comparison to the volume 11 of hazardous substances contributed at the site by all known 12 and financially viable responsible persons. 13 (2) The remaining responsible persons have sufficient 14 resources to implement the response action proposed by the 15 department either alone or in combination with funds made 16 available by the department under section 902(a)(3). 17 (3) The persons seeking the de minimis settlement <-- 18 provide an amount which is significantly greater than the 19 cost of their individual contribution as a percentage of the 20 volume contributed to the site cleanup. 21 (4) The entry of a de minimis settlement will expedite 22 the implementation of the remedial response. A de minimis 23 settlement may provide that the parties to the settlement 24 will have no further responsibility for the release which is 25 addressed by the proposed remedial action. 26 (b) Discretion.--The decision to enter into a de minimis 27 settlement is within the sole discretion of the department. No 28 person has a right to participate in a de minimis settlement and 29 the department's decision whether or not to enter into a 30 settlement shall not be deemed to be a final action subject to 19870H1852B3645 - 76 -
1 review under Title 2 of the Pennsylvania Consolidated Statutes 2 (relating to administrative law and procedure) or section 1921-A 3 of the act of April 9, 1929 (P.L.177, No.175), known as The 4 Administrative Code of 1929. 5 (B) DE MINIMIS LIABILITY.--ANY PERSON WHOSE CONTRIBUTION TO <-- 6 THE SITE IS MINIMAL IN BOTH AMOUNT AND TOXIC OR OTHER HAZARDOUS 7 EFFECT, IN COMPARISON TO OTHER HAZARDOUS SUBSTANCES AT THE SITE, 8 SHALL BE LIABLE ONLY FOR HIS PROPORTIONAL SHARE OF RESPONSE 9 COSTS AND DAMAGES ASSESSED UNDER SECTION 702. UPON PAYMENT OF 10 SUCH PERSON'S SHARE, SAID PERSON SHALL BE ENTITLED TO A SPECIAL 11 COVENANT NOT TO SUE. 12 Section 707. Nonbinding allocation of liability. 13 Within 120 days of the request of any responsible person, the 14 department shall make a nonbinding allocation of responsibility 15 among the known responsible persons. The request shall not 16 prohibit or delay any action authorized under this act. The 17 department's nonbinding allocation shall not be deemed to be a 18 final action subject to review under Title 2 of the Pennsylvania 19 Consolidated Statutes (relating to administrative law and 20 procedure) or section 1921-A of the act of April 9, 1929 21 (P.L.177, No.175), known as The Administrative Code of 1929, nor 22 shall it confer a right or duty upon the department or any 23 person. 24 Section 708. Voluntary acceptance of responsibility. 25 A responsible person who voluntarily undertakes a response <-- 26 action approved by the department shall not be liable for any 27 further response action provided that: 28 (1) The responsible person completes the remedial 29 response approved by the department. 30 (2) The responsible person demonstrates that the 19870H1852B3645 - 77 -
1 remedial response taken is preventing any release of 2 hazardous substances from the site. 3 ANY PERSON WHO VOLUNTARILY ACCEPTS RESPONSIBILITY UNDER <-- 4 SECTION 701 AND AGREES TO PAY HIS PROPORTIONATE SHARE OF THE 5 RESPONSE COSTS AND DAMAGES LISTED IN SECTION 702 SHALL NOT BE 6 LIABLE TO THE DEPARTMENT, OR TO ANY OTHER RESPONSIBLE PERSON, <-- 7 FOR ANY CLAIMS IN EXCESS OF THAT PERSON'S PROPORTIONATE 8 LIABILITY SHARE OF THE RESPONSE COSTS AND DAMAGES UNDER SECTION <-- 9 702, AS ULTIMATELY DETERMINED. 10 Section 709. Mediation. 11 Upon the request of any responsible person, the department 12 may appoint an independent mediator recognized by the American 13 Arbitration Association to resolve any dispute among the 14 responsible persons. The expenses of the mediator shall be paid 15 by the parties to the mediation. Any agreement reached during 16 the mediation shall be binding upon the parties to the 17 agreement, and shall create a presumption in favor of the 18 parties as to all matters addressed by the agreement. This <-- 19 presumption shall operate against any responsible person who 20 fails after notice, to participate in the mediation. The 21 mediation shall not prohibit or delay any action authorized by 22 this act. 23 CHAPTER 9 24 FUND 25 Section 901. Fund. 26 (a) Establishment.--The Hazardous Sites Cleanup Fund, as 27 established in section 602.3 of the act of March 4, 1971 (P.L.6, 28 No.2), known as the Tax Reform Code of 1971, shall be a special 29 fund administered by the department and shall not be subject to 30 the act of July 13, 1987 (P.L.340, No.64), entitled "An act 19870H1852B3645 - 78 -
1 providing for the establishment, funding and operation of a
2 special restricted receipt account within the General Fund to
3 support the establishment and operation of a Statewide judicial
4 computer system; providing for annual appropriations from the
5 restricted funds; and providing for the payment of a portion of
6 all fines, fees and costs collected by the judiciary into the
7 restricted receipt account."
8 (b) Appropriation.--Money placed in the fund is appropriated
9 to the department for the purposes set forth in this section.
10 The department shall annually submit to the Governor for
11 approval estimates of amounts to be expended under this act.
12 (c) Funds.--Money from the following sources shall be
13 deposited in the fund:
14 (1) Proceeds from hazardous waste transportation and
15 management fees imposed by section 903, including interest
16 and penalties.
17 (2) Money recovered by the Commonwealth under sections
18 507 and 1101.
19 (3) Interest attributable to investment of money
20 deposited in the fund.
21 (4) Money appropriated by the General Assembly for
22 implementation of this act.
23 (5) Money recovered by the Commonwealth pursuant to a
24 cost recovery action under the Federal Superfund Act.
25 (6) Money received from the Federal Government under the
26 Federal Superfund Act.
27 (7) All revenues collected pursuant to section 602.3 of
28 the Tax Reform Code of 1971.
29 (8) All fees collected under sections 903 and 904 <--
30 SECTION 903. <--
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1 (9) Funds available from appropriations for the same and 2 similar purposes. 3 Section 902. Expenditures from fund. 4 (a) Purposes.--The department shall expend money in the fund 5 for purposes including, but not limited to: 6 (1) Preparation by the department or its agents for 7 taking response actions, which include emergency responses, 8 investigations, testing activities, contracting, excavation, 9 administrative costs and enforcement efforts relating to the 10 release or threatened release of hazardous substances or 11 contaminants. 12 (2) Response actions taken or authorized by the 13 department, including related enforcement and compliance 14 efforts and the payment of the State share of the cost of 15 remedial responses which may be carried out under an 16 agreement or contract with the Federal Government pursuant to 17 the Federal Superfund Act. 18 (3) Participation in response activities to the extent 19 the department, in its discretion, finds necessary or 20 appropriate, to carry out the purposes of this act. The 21 department may also use the fund to promote voluntary 22 cleanups by participating in mixed funding settlements with 23 potentially responsible persons. 24 (4) Emergency responses, including response to spills 25 and other uncontrolled releases and their cleanup. 26 (5) Reimbursement to a private party for expenditures 27 made from the effective date of this act to provide 28 alternative water supplies deemed necessary by the department 29 to protect the public health from contamination resulting 30 from the release of a hazardous substance or contaminant. 19870H1852B3645 - 80 -
1 (6) Replacement of public or private water supplies 2 deemed necessary by the department to protect the public 3 health from contamination resulting from the release of a 4 hazardous substance or contaminant. 5 (7) Rehabilitation, restoration or acquisition of 6 natural resources to remedy injuries or losses to natural 7 resources resulting from the release of a hazardous substance 8 or contaminant. 9 (8) Grants by the department to demonstrate alternatives 10 to land disposal of hazardous waste, including reduction, 11 separation, pretreatment, processing and resource recovery 12 for education of persons involved in regulating and handling 13 hazardous substances. 14 (9) Intervention and environmental mediation to 15 facilitate cleanup of hazardous sites. 16 (10) State matching funds required under the Federal 17 Superfund Act for the response of a site on the National 18 Priority List established under the Federal Superfund Act. 19 (11) Studies of potential or actual human health effects 20 from the release or potential release of hazardous substances 21 at individual sites, including, but not limited to, studies 22 of potential pathways of human exposure, the size and 23 potential susceptibility of the community within the likely 24 pathways of exposure, the comparison of expected health 25 effects associated with identified hazardous substances and 26 available recommended exposure or tolerance limits for the 27 hazardous substances, the comparison of existing morbidity 28 and mortality data on diseases that may be associated with 29 the observed levels of exposure and epidemiological and 30 clinical studies. 19870H1852B3645 - 81 -
1 (12) Grants provided to municipalities under section 511 <--
2 510.
3 (13) Reimbursement of expenses under section 505(f).
4 (b) Annual report.--Beginning October 1, 1988, and annually
5 thereafter, the secretary shall transmit to the General Assembly
6 a report concerning activities and expenditures made pursuant to
7 this chapter for the preceding State fiscal year. Included in
8 this report shall be information concerning all revenues and
9 receipts deposited into the Hazardous Site Cleanup Fund, all
10 expenditures, including, but not limited to, expenditures for
11 personnel, operating expenses, the purchase of fixed assets,
12 grants and subsidies, other major objects of expenditures where
13 appropriate, and information detailing the department's efforts
14 to obtain contributions for response actions from potentially
15 responsible parties and a listing of sites where mixed funding
16 as described in section 902(a)(3) was utilized for cleanup. The
17 secretary shall also supply information on both authorized and
18 filled complement and information concerning program activities,
19 including, but not limited to:
20 (1) The number of response actions initiated and
21 completed, and the costs incurred, in the aggregate and for
22 each action.
23 (2) The number of public or private water supply
24 replacements, and the costs incurred.
25 (3) Expenditures for the rehabilitation, restorations or
26 acquisition of natural resources.
27 (4) Expenditures for intervention and environmental
28 mediation.
29 (5) The number of Federal Superfund sites in which the
30 Commonwealth participates in response activities, and the
19870H1852B3645 - 82 -
1 State matching costs incurred.
2 (6) The number of health effect studies undertaken, and
3 the costs incurred.
4 (7) The number of grants provided to municipalities
5 under section 511 510, and the amounts granted. <--
6 (8) The number of reimbursements of expenses under
7 section 505(f), and the amounts reimbursed.
8 (c) Health study report.--Upon completion of health effect
9 studies performed pursuant to subsection (a)(11), copies of the
10 findings and any recommendations of such studies shall be
11 transmitted to the General Assembly and the governing bodies of
12 the affected communities. Except for personal health records of
13 individuals, such studies shall be public information, and the
14 department shall provide copies to any person upon request.
15 Section 903. Hazardous waste transportation and management fees.
16 (a) Assessment.--Fees shall be assessed for the
17 transportation and management of hazardous waste in accordance
18 with this section. TO CARRY OUT THE PURPOSES OF THIS ACT AND IN <--
19 ORDER TO CARRY OUT THE NATIONAL AND STATE POLICIES TO MINIMIZE
20 LAND DISPOSAL OF HAZARDOUS WASTE BY ENCOURAGING PROPERLY
21 CONDUCTED RECYCLING AND REUSE, THE TRANSPORTATION AND MANAGEMENT <--
22 FEES LEVIED UNDER THIS SECTION SHALL NOT BE IMPOSED ON:
23 (1) HAZARDOUS WASTE WHICH IS RECYCLABLE MATERIAL UNDER
24 40 CFR § 261.6 AND SUCCESSOR FEDERAL AND STATE REGULATIONS
25 AND WHICH IS SENT TO A VERIFIED RECYCLING FACILITY FOR USE,
26 REUSE OR RECLAMATION RECYCLING; AND
27 (2) HAZARDOUS WASTE GENERATED IN THE PROCESS OF
28 RECYCLING RECYCLABLE MATERIALS DESCRIBED IN 40 CFR § 261.6
29 AND ITS SUCCESSOR FEDERAL AND STATE REGULATIONS, AND SO
30 VERIFIED BY THE DEPARTMENT:
19870H1852B3645 - 83 -
1 PROVIDED, THAT ANY HAZARDOUS WASTE GENERATED IN THE RECYCLING 2 PROCESS IS DISPOSED OF AT A PERMITTED DISPOSAL FACILITY. ALL 3 VERIFICATIONS REFERRED TO IN THIS SUBSECTION SHALL BE IN WRITING 4 AND APPROVED BY THE DEPARTMENT. 5 (b) Transportation fee.--A transporter of hazardous waste 6 shall be assessed a transportation fee for hazardous waste 7 transported within this Commonwealth, whether originating in- 8 State or out-of-State. For purposes of computing the fee, each 9 shipment, requiring the use of a hazardous waste manifest, to or 10 from a PENNSYLVANIA hazardous waste facility, or between two <-- 11 PENNSYLVANIA hazardous waste facilities, shall be considered a <-- 12 discrete transportation activity and shall be subject to the 13 fee. 14 (c) Management fee.-- 15 (1) The operator of a hazardous waste management 16 facility IN PENNSYLVANIA shall be assessed a management fee <-- 17 for hazardous waste stored, treated or disposed of at a 18 facility. No management fee shall be charged for hazardous 19 wastes which are reused or recycled in accordance with 20 department regulations. For purposes of this paragraph, 21 incineration shall be considered a form of treatment rather 22 than disposal. 23 (2) A generator who disposes of hazardous waste at the 24 site at which it was generated or at a captive disposal 25 facility IN PENNSYLVANIA shall be assessed a fee for all <-- 26 hazardous waste disposed. 27 (3) No management fee shall be assessed for hazardous 28 waste storage or treatment at the site at which it was 29 generated or at a captive facility IN PENNSYLVANIA. <-- 30 (4) No management fee shall be charged for waste stored 19870H1852B3645 - 84 -
1 prior to recycling at a legitimate commercial recycling 2 facility. 3 (d) Rates.--The following rates shall apply unless the 4 secretary adjusts the fee schedule in accordance with subsection 5 (g): 6 (1) Transportation of hazardous waste (EXCEPT AS <-- 7 PROVIDED IN PARAGRAPH (2)) - $3 per ton. 8 (2) TRANSPORTATION OF HAZARDOUS WASTE RESULTING FROM THE <-- 9 RECYCLING OF LEAD ACID BATTERIES - $1.50 PER TON. 10 (2) (3) Storage of hazardous waste at a commercial <-- 11 hazardous waste management facility - $2 per ton. 12 (3) (4) Treatment or incineration of hazardous waste at <-- 13 a commercial hazardous waste management facility - $5 per 14 ton. 15 (4) (5) Disposal of hazardous waste at a commercial <-- 16 disposal facility - $12 per ton. 17 (5) (6) Disposal of hazardous waste on the site at which <-- 18 it was generated or at a captive facility - $8 per ton. 19 (e) Conversion.--In the event that any hazardous waste is 20 measured in units other than tonnage, the fee shall be levied on 21 a conversion to tonnage determined by the department. 22 (f) Cumulative nature.-- 23 (1) The transportation and management fees are 24 cumulative. 25 (2) When several management activities occur at the same 26 facility, the operator shall be assessed only one management 27 fee FOR EACH QUANTITY OF WASTE, which shall be the highest <-- 28 rate of the management activities involved. 29 (3) However, when treatment or incineration prior to 30 disposal results in a reduction in the tonnage of waste 19870H1852B3645 - 85 -
1 requiring disposal, the operator shall be assessed the 2 disposal management fee for the waste requiring disposal 3 after treatment or incineration and the treatment management 4 fee for the rest of the waste which underwent treatment. 5 (g) Adjustments.--The secretary may, by regulation, adjust 6 the rates as appropriate in accordance with the following 7 formula: 8 (1) The fees shall be calculated and rates adjusted to 9 collect projected annual revenues of $5,000,000 plus the 10 reasonably projected administrative cost of collecting the 11 fee. 12 (2) Management fee rates shall encourage preferred 13 hazardous waste management practices by establishing four fee 14 categories with graduated fee schedule. The fee categories 15 from lowest rate per ton to highest rate per ton shall be: 16 (i) Hazardous waste stored at a hazardous waste 17 management facility. 18 (ii) Hazardous waste treated or incinerated at a 19 hazardous waste management facility. 20 (iii) Hazardous waste disposed of at a hazardous 21 waste disposal facility at the site where the waste was 22 generated or at a captive disposal facility. 23 (iv) Hazardous waste disposed of at a commercial 24 hazardous waste disposal facility. 25 (3) No fee shall be charged for hazardous wastes which 26 are recycled or reused in accordance with the department's 27 regulations. 28 (4) The department may exclude small quantity generators 29 from the fees. 30 (h) Annual disposal report.-- 19870H1852B3645 - 86 -
1 (1) By March 1, 1989, and by March 1 of each year 2 thereafter, a person who submitted for off-site disposal or 3 who disposed of on site more than 500 pounds of hazardous 4 waste in this Commonwealth during the preceding calendar year 5 shall report to the department the total amount of hazardous 6 waste which that person has submitted for disposal or 7 disposed of in this Commonwealth during the preceding 8 calendar year. This subsection does not apply to a person who 9 is already providing this information to the department. 10 (2) The total amount of hazardous waste reported under 11 this subsection shall be the total weight, measured in tons, 12 of all components of the waste in the form in which the waste 13 existed at the time of submission for disposal or at the time 14 of disposal. 15 (3) A person who fails to file the report required by 16 this subsection shall be liable for a civil penalty not to 17 exceed $500 for each day the violation continues. A person 18 who knowingly fails to file the report commits a misdemeanor 19 of the third degree and shall, upon conviction, be sentenced 20 to pay a fine of not more than $25,000 or to imprisonment for 21 not more than one year, or both. 22 (I) WASTE FROM CLEANUP.--THE FEES ASSESSED PURSUANT TO THIS <-- 23 SECTION FOR THE TRANSPORTATION, MANAGEMENT OR AUTHORIZED 24 DISPOSAL OF HAZARDOUS WASTE SHALL NOT APPLY TO HAZARDOUS WASTE 25 THAT IS DERIVED FROM THE CLEANUP OF A SITE PURSUANT TO THIS ACT, 26 THE FEDERAL SUPERFUND ACT, THE SOLID WASTE DISPOSAL ACT (PUBLIC 27 LAW 89-272, 42 U.S.C. § 6901 ET SEQ.) OR THE ACT OF JULY 7, 1980 28 (P.L.380, NO.97), KNOWN AS THE SOLID WASTE MANAGEMENT ACT. 29 Section 904. Contingency surcharge. <-- 30 In the event the total amount appropriated from the General 19870H1852B3645 - 87 -
1 Fund for the hazardous waste control program and Federal 2 superfund projects is less than $25,000,000, one of the 3 surcharges established in paragraphs (1) and (2), in addition to 4 other fees contained in this section, shall be levied. 5 (1) On all hazardous waste generated in this 6 Commonwealth, except hazardous waste covered by paragraph 7 (2), a surcharge fee in the amount of $7.50 per ton shall be 8 paid to the fund. In the event that any hazardous waste is 9 measured by other than tonnage, the surcharge shall be levied 10 on the equivalent thereof as shall be determined by the 11 department. Each generator of hazardous waste shall, on or 12 before the 20th day of the month following the close of each 13 tax period, render an accounting and record of the total 14 waste generated and stored or disposed of in that period on 15 such forms as the department may require and make full 16 payment of the surcharge in a manner to be prescribed by the 17 department. 18 (2) On all hazardous waste generated and treated, reused 19 or recycled in this Commonwealth, a surcharge fee in the 20 amount of $2.50 per ton of waste generated and treated, 21 reused or recycled, shall be paid to the fund. In the event 22 that any hazardous waste is measured by other than tonnage, 23 the surcharge shall be levied on the equivalent thereof as 24 shall be determined by the department. Each generator of 25 hazardous waste shall, on or before the 20th day of the month 26 following the close of each tax period, render an accounting 27 and record of the total waste generated and treated, reused 28 or recycled in that period on such forms as the department 29 may require and make full payment of the surcharge in a 30 manner to be prescribed by the department. 19870H1852B3645 - 88 -
1 (3) To carry out the purposes of this act and in order 2 to carry out the National and State policies to minimize land 3 disposal of hazardous waste by encouraging properly conducted 4 recycling and reuse, the surcharge fee levied under paragraph 5 (2) shall be levied on hazardous waste which is recyclable 6 material under 40 CFR § 261.6 and successor Federal and State 7 regulations and which is sent by the generator to a verified 8 recycling facility for recycling or reuse; and the surcharge 9 levied under paragraph (2) shall not apply to waste generated 10 in the process of recycling recyclable materials listed in 40 11 CFR § 261.6(a)(2) and (3) and its successor Federal and State 12 regulations, and so verified by the department: Provided, 13 That any hazardous waste generated in the recycling process 14 is disposed of at a permitted disposal facility. All 15 verifications referred to in this paragraph shall be in 16 writing and approved by the department. 17 (4) The surcharge fee levied under paragraphs (1) and 18 (2) shall not apply to waste specifically excluded as a 19 hazardous waste under 25 Pa. Code § 75.261(c) of the 20 department's regulations and to waste for which disposal is 21 carried on as a point source discharge pursuant to and in 22 compliance with a valid permit issued under the act of June 23 22, 1937 (P.L.1987, No.394), known as The Clean Streams Law, 24 and under section 402 of the Federal Water Pollution Control 25 Act, as amended (86 Stat. 880). 26 (5) The surcharge fees levied under paragraphs (1) and 27 (2) shall not apply to hazardous waste retrieved or created 28 and which must be disposed of due to the remediation of an 29 abandoned hazardous waste site. 30 (6) Following each quarterly reporting date, the 19870H1852B3645 - 89 -
1 secretary shall certify the amount deposited in the fund 2 during the quarter and the cumulative amount collected since 3 the start of the current calendar year. If the secretary 4 certifies that the total annual amount collected as of the 5 end of any quarter equals or exceeds $25,000,000, no 6 surcharge shall be collected for the remainder of the year. 7 Section 905 904. Loan fund. <-- 8 (a) Establishment.--There is established a separate account 9 in the State Treasury to be known as the Hazardous Sites Loan 10 Fund, which shall be a special fund administered by the Economic <-- 11 Development Partnership DEPARTMENT OF COMMERCE. <-- 12 (b) Purpose.--In the case of a release or threatened release 13 of hazardous substances from a site for which the department has 14 identified no more than two persons as potentially liable under 15 section 702, such persons may be eligible, upon written 16 application to the Economic Development Partnership DEPARTMENT <-- 17 OF COMMERCE, to receive long-term, low-interest loans in an 18 amount sufficient to fund all or a portion of the response costs 19 at the site. The Economic Development Partnership DEPARTMENT OF <-- 20 COMMERCE shall promulgate regulations establishing eligibility 21 criteria for the loans. As part of this effort, the Economic <-- 22 Development Partnership Board DEPARTMENT OF COMMERCE shall <-- 23 include a determination of the availability of other sources of 24 funds at reasonable rates to finance all or a portion of the 25 response action and the need for board assistance to finance the 26 response action. 27 (c) Funds.--In addition to any funds as may be appropriated 28 by the General Assembly, at least 2% of the funds raised 29 annually by the assessments imposed by section 903 shall be 30 deposited into the loan fund. 19870H1852B3645 - 90 -
1 (d) Annual report.--Beginning October 1, 1988, and annually 2 thereafter, the Economic Development Partnership DEPARTMENT OF <-- 3 COMMERCE shall transmit to the General Assembly a report 4 concerning activities and expenditures made pursuant to this 5 section for the preceding State fiscal year. Included in this 6 report shall be information concerning all revenues and receipts 7 deposits into the loan fund and all loans extended to eligible 8 applicants. 9 (e) Sunset.--The loan fund shall cease to exist on June 30, 10 1992, unless it is reestablished by action of the General 11 Assembly. Any funds remaining in the loan fund on June 30, 1992, 12 shall lapse to the Hazardous Sites Cleanup Fund. Money received 13 by the Economic Development Partnership DEPARTMENT OF COMMERCE <-- 14 as repayment of outstanding loans after June 30, 1992, shall 15 lapse to the Hazardous Sites Cleanup Fund. 16 SECTION 905. RECYCLING EQUIPMENT TAX CREDIT. <-- 17 (A) AMOUNT.--A TAXPAYER WHO PURCHASES OR LEASES RECYCLING 18 EQUIPMENT TO BE USED EXCLUSIVELY WITHIN THIS COMMONWEALTH SHALL 19 BE ENTITLED TO A CREDIT AGAINST THE TAXES IMPOSED UNDER ARTICLES 20 IV AND VI OF THE ACT OF MARCH 4, 1971 (P.L.6, NO.2), KNOWN AS 21 THE TAX REFORM CODE OF 1971, IN AN AMOUNT EQUAL TO 50% OF THE 22 INSTALLED COST OF THE RECYCLING EQUIPMENT. THE AMOUNT OF CREDIT 23 CLAIMED IN THE TAX YEAR DURING WHICH THE RECYCLING EQUIPMENT IS 24 PURCHASED OR LEASED SHALL NOT EXCEED 20% OF THE AMOUNT OF THE 25 TOTAL CREDIT ALLOWABLE AND SHALL NOT EXCEED 50% OF THE TOTAL OF 26 THE TAX LIABILITY WHICH WOULD BE OTHERWISE DUE. 27 (B) APPLICATION PROCEDURE.--APPLICATION FOR A TAX CREDIT 28 MUST BE MADE TO THE DEPARTMENT OF REVENUE BY APRIL 15 OF THE 29 YEAR FOLLOWING THE CALENDAR YEAR IN WHICH THE RECYCLING 30 EQUIPMENT IS PURCHASED OR LEASED. THE APPLICATION MUST INCLUDE A 19870H1852B3645 - 91 -
1 DESCRIPTION OF EACH ITEM OF RECYCLING EQUIPMENT PURCHASED OR 2 LEASED, THE DATE OF PURCHASE OR LEASE, THE INSTALLED COST OF THE 3 RECYCLING EQUIPMENT, A STATEMENT OF WHERE THE RECYCLING 4 EQUIPMENT IS TO BE USED AND OTHER INFORMATION AS THE DEPARTMENT 5 MAY REQUIRE. THE SECRETARY OF REVENUE SHALL REVIEW ALL 6 APPLICATIONS RECEIVED TO DETERMINE WHETHER EXPENDITURES FOR 7 WHICH CREDITS ARE REQUESTED MEET THE REQUIREMENTS OF THIS 8 SECTION AND SHALL ADVISE THE TAXPAYER OF THE AMOUNT OF CREDIT 9 FOR WHICH THE TAXPAYER IS ELIGIBLE UNDER THIS SECTION. 10 (C) CARRYOVER.--TAX CREDITS AWARDED PURSUANT TO THIS SECTION 11 MAY BE UTILIZED IN THE TAXABLE YEAR THE RECYCLING EQUIPMENT IS 12 PURCHASED OR LEASED AND, TO EXTENT NOT UTILIZED, CARRIED OVER 13 FOR UP TO FOUR ADDITIONAL TAXABLE YEARS BY THE TAXPAYER, AND 14 SHALL THEREAFTER EXPIRE. 15 (D) APPLICABILITY.--THE CREDIT ALLOWED BY THIS SECTION SHALL 16 APPLY TO MACHINERY AND EQUIPMENT WHICH IS PUT IN PLACE PRIOR TO 17 DECEMBER 31, 1993. 18 (E) EXPIRATION.--THIS SECTION SHALL EXPIRE DECEMBER 31, 19 1993. 20 CHAPTER 11 21 ENFORCEMENT AND REMEDIES 22 Section 1101. Public nuisances. 23 (A) GENERAL RULE.-- A release of a hazardous substance or a <-- 24 violation of any provision of this act, a regulation of the 25 department, an order of the department or a response approved by 26 the department shall constitute a public nuisance. Any person 27 allowing such a release or committing such a violation shall be 28 liable for the response costs caused by the release or the 29 violation. The board and any court of competent jurisdiction is 30 hereby given jurisdiction over actions to recover the response 19870H1852B3645 - 92 -
1 costs. 2 (B) LIMITATION OF LIABILITY.--IF A RELEASE OR THREATENED <-- 3 RELEASE IS PRIMARILY CAUSED BY A PERSON WHO OWNS OR OPERATES 4 EQUIPMENT FOR THE RECOVERY OR PROCESSING, INCLUDING 5 RECIRCULATION OF CONDENSATE, OF METHANE, THE PERSON'S LIABILITY 6 SHALL BE LIMITED TO COSTS AND DAMAGES PRIMARILY CAUSED BY THE 7 PERSON'S ACTIVITIES. 8 Section 1102. Enforcement orders. 9 (a) General rule.--The department shall issue orders to 10 persons as it deems necessary to aid in the enforcement of the 11 provisions of this act. Orders shall include but shall not be 12 limited to orders requiring response actions, studies and access 13 and orders modifying, suspending or ceasing a response action by 14 a responsible party even though the response may have been 15 initially approved by the department. An order issued under this 16 section shall take effect upon notice unless the order specifies 17 otherwise. The power of the department to issue an order under 18 this section is in addition to any other remedy which may be 19 afforded to the department under this act or any other statute. 20 (b) Types.--The department, when it deems necessary for the 21 response to a release or for the protection of public health, 22 safety or welfare or the environment, shall order, orally or in 23 writing, a person to immediately initiate, continue, suspend or 24 modify a response action; conduct investigations; or provide 25 access to property or information. The order shall be effective 26 upon issuance and may only be superseded by further department 27 action or, after an appeal has been perfected, by the board 28 after notice and hearing. The order may require whatever 29 alternative response actions are necessary for the abatement of 30 the release. Within two business days after the issuance of the 19870H1852B3645 - 93 -
1 oral order, the department shall issue a written order reciting 2 and modifying, where appropriate, the terms and conditions 3 contained in the oral order. 4 (c) Compliance.--It shall be the duty of any person to 5 proceed diligently to comply with an order issued under this 6 section. When the person fails to proceed diligently or fails to 7 comply with the order within the time specified, the person 8 shall be guilty of contempt and shall be punished by the court 9 in an appropriate manner. For this purpose, application may be 10 made by the department to the Commonwealth Court. 11 (d) Appeal.--An order issued under this section may be 12 appealed to the board under section 1921-A of the act of April 13 9, 1929 (P.L.177, No.175), known as The Administrative Code of 14 1929. An appeal to the board shall not act as a supersedeas. 15 Section 1103. Restraining violations. 16 (a) Department.--In addition to any other remedy provided in 17 this act, the department may institute a suit in equity in the 18 name of the Commonwealth, where a violation of law or nuisance 19 exists, for an injunction to restrain a violation of this act or 20 the regulations, standards or orders promulgated or issued 21 hereunder and to restrain the maintenance or threat of a public 22 nuisance. In a proceeding under this subsection, the court 23 shall, upon motion of the Commonwealth, issue a prohibitory or 24 mandatory preliminary injunction when it finds that the 25 defendant is engaging in unlawful conduct as defined by this act 26 or is engaged in conduct which is causing immediate and 27 irreparable harm to the public. The Commonwealth shall not be 28 required to furnish bond or other security in connection with 29 the proceedings. In addition to an injunction, the court may 30 levy civil penalties under section 1104. 19870H1852B3645 - 94 -
1 (b) Local government.--In addition to any other remedies 2 provided for in this act, upon relation of a district attorney 3 of an affected county or upon relation of the solicitor of an 4 affected municipality, an action in equity may be brought in a 5 court of competent jurisdiction for an injunction to restrain 6 any and all violations of this act or regulations promulgated 7 under it or to restrain a public nuisance or detriment to public 8 health, safety or welfare or the environment. 9 (c) Concurrent remedies.--The penalties and remedies 10 prescribed by this act shall be deemed concurrent. The existence 11 of or exercise of one remedy shall not prevent the department 12 from exercising any other remedy under this act, at law or in 13 equity. 14 (d) Jurisdiction.--Actions instituted under this section may 15 be filed in the appropriate court of common pleas or in the 16 Commonwealth Court. Actions may also be filed in a Federal Court 17 or administrative tribunal having jurisdiction over the matter. 18 Section 1104. Civil penalties. 19 (a) General rule.--In addition to proceeding with any other 20 remedy available at law or in equity for a violation of a 21 provision of this act, a regulation or order of the department 22 or a term or condition of a response approved by the department, 23 the department may assess a civil penalty upon a person for the 24 violation. A penalty may be assessed whether or not the 25 violation was willful or negligent. In determining the amount of 26 the penalty, the department shall consider the willfulness of 27 the violation; damage to air, water, land or other natural 28 resources of this Commonwealth or their uses; cost of 29 restoration and abatement; savings resulting to the person in 30 consequence of such violation; and other relevant factors. 19870H1852B3645 - 95 -
1 (b) Procedure.--When the department proposes to assess a 2 civil penalty, it shall inform the person of the proposed amount 3 of the penalty. The person charged with the penalty shall then 4 have 30 days to pay the proposed penalty in full. When the 5 person wishes to contest either the amount of the penalty or the 6 fact of the violation, the person must, within the 30-day 7 period, file an appeal of the action with the board. Failure to 8 appeal within 30 days shall result in a waiver of all legal 9 rights to contest the violation or the amount of the penalty. 10 (c) Amount.--The maximum civil penalty which may be assessed 11 under this section is $25,000 per offense. Each violation for 12 each separate day and each violation of a provision of this act, 13 a regulation under this act, an order of the department or any 14 term or condition of an approved response shall constitute a 15 separate and distinct offense under this section. 16 (d) Minimum.--A person who fails to comply with an order 17 issued under section 503 shall be subject to a minimum penalty 18 of $5,000 for each day the order is violated. 19 (e) Additional penalties.--The Environmental Quality Board 20 shall have the authority to establish, by regulation, specific 21 major violations and additional mandatory minimum civil 22 penalties. 23 Section 1105. Criminal penalties. 24 (a) Falsity.-- 25 (1) A person may not knowingly make a false statement or 26 representation in an application, record, report, plan, 27 proposal or other document which: 28 (i) relates to the actual or threatened release of a 29 hazardous substance or to a response to the actual or 30 threatened release of a hazardous substance; or 19870H1852B3645 - 96 -
1 (ii) is filed, submitted, maintained or used for 2 purposes of compliance with this act. 3 (2) A person who violates paragraph (1) commits a 4 misdemeanor of the third degree and shall, upon conviction, 5 be sentenced to pay a fine of not less that $1,000 and not 6 more than $25,000 per day for each violation or to 7 imprisonment for a period of not more than one year, or both. 8 (b) Altering response action.--A person who, without written 9 authorization from the department, alters or modifies a response 10 action approved or undertaken by the department commits a 11 summary offense and shall, upon conviction, be sentenced to pay 12 a fine of not less than $100 and not more than $1,000 for each 13 day on which the offense occurs or, in default of payment of the 14 fine, to imprisonment for not more than 90 days. 15 (c) Obstruction.--A person who refuses, hinders, obstructs, 16 delays or threatens any agent or employee of the department in 17 the course of performance of a duty under this act, including 18 but not limited to entry and inspection under any circumstances, 19 commits a summary offense and shall, upon conviction, be 20 sentenced to pay a fine of not less than $100 and not more than 21 $1,000 for each day on which the offense occurs or, in default 22 of payment of the fine, to undergo imprisonment for not more 23 than 90 days. 24 (d) Intentional or negligent.--A person who intentionally or 25 negligently commits an offense under subsection (b) or (c) 26 commits a misdemeanor of the third degree and shall, upon 27 conviction, be sentenced to pay a fine of not less than $1,000 28 and not more than $25,000 for each day on which the offense 29 occurred or to undergo imprisonment for not more than one year, 30 or both. 19870H1852B3645 - 97 -
1 Section 1106. Search warrants. 2 An agent or employee of the department may apply to any 3 Commonwealth official authorized to issue a search warrant for 4 the purposes of searching any property, building, premise, or 5 place, of seizing any book, record or other physical evidence, 6 of conducting tests, or of taking samples of any solid waste. 7 Such warrant shall be issued upon probable cause. It shall be 8 sufficient probable cause to show any of the following: 9 (1) The search, seizure, test or sampling is pursuant to 10 a general administrative plan to determine compliance with 11 this act. 12 (2) The agent or employee has reason to believe that a 13 violation of this act has occurred or may occur. 14 (3) The agent or employee has been refused access to the 15 property, building, premises or place, has been refused 16 possession of any book, record or physical evidence, or has 17 been prevented from conducting tests or taking samples. 18 (4) The employee has reason to believe that a release or 19 a threat of a release of a hazardous substance or contaminant 20 exists on the property or on a nearby property and that 21 testing and sampling are needed for determining the nature or 22 extent of the release. 23 (5) The employee has reason to believe that there are 24 containers or impoundments on the property which are typical 25 of those used for containing or impounding hazardous 26 substances and that testing, sampling or the review of 27 records is necessary to determine whether hazardous 28 substances are present. 29 Section 1107. Existing and cumulative rights and remedies. 30 Nothing in this act shall be construed as estopping the 19870H1852B3645 - 98 -
1 Commonwealth, a district attorney or solicitor or a municipality 2 from proceeding in courts of law or equity to abate releases 3 forbidden under this act, or to abate nuisances under existing 4 law. It is declared to be the purpose of this act to provide 5 additional and cumulative remedies to control the release of 6 hazardous substances within this Commonwealth. Nothing contained 7 in this act shall abridge or alter rights of action or remedies 8 in law or equity. No provision of this act, the granting of 9 approval under this act, nor an act done by virtue of this act 10 shall be construed as estopping the Commonwealth, persons or 11 municipalities in the exercise of their rights in law or in 12 equity; from proceeding in courts of law or equity to suppress 13 nuisances or to abate a pollution; or from enforcing common law 14 or statutory rights. No courts of this Commonwealth having 15 jurisdiction to abate public or private nuisances shall be 16 deprived of jurisdiction in an action to abate any private or 17 public nuisance because the nuisance constitutes pollution of 18 air or water or soil. 19 Section 1108. Unlawful conduct. 20 It shall be unlawful for a person to do any of the following: 21 (1) Cause or allow a release of a hazardous substance. 22 (2) Alter or modify any response action which has been 23 approved by the department unless authorized in writing by 24 the department. 25 (3) Refuse, hinder, obstruct, delay or threaten an agent 26 or employee of the department in the course of performance of 27 a duty under this act, including, but not limited to, entry 28 and inspection under any circumstances. 29 (4) Cause or assist in the violation of any provision of 30 this act, a regulation of the department or an order of the 19870H1852B3645 - 99 -
1 department.
2 (5) Fail to make a timely payment of the hazardous waste
3 transportation and management fee.
4 (6) Hinder, obstruct, prevent or interfere with host
5 municipalities or their personnel in the performance of any
6 duty related to the collection of the hazardous waste
7 transportation and management fees.
8 (7) Cause or allow release of a contaminant in a manner
9 that creates a public nuisance.
10 Section 1109. Presumption of law for civil and administrative
11 proceedings.
12 It shall be presumed as a rebuttable presumption of law that
13 a person who causes or allows the release of a hazardous
14 substance shall be liable, without proof of fault, negligence,
15 or causation, for all damages, contamination or pollution within
16 2,500 feet of the perimeter of the area where the release has
17 occurred. This presumption may be overcome by clear and
18 convincing evidence that the person so charged did not
19 contribute to the damage, contamination or pollution.
20 Section 1110. Collection of fines and penalties.
21 Fines and penalties under this act shall be collectible in
22 the manner provided by section 510 509. Upon collection they <--
23 shall be paid into the fund.
24 Section 1111. Right of citizen to intervene in proceedings.
25 A citizen of this Commonwealth having an interest which is or
26 may be adversely affected shall have the right, on his own
27 behalf, without posting bond, to intervene in any proceeding
28 brought under this act.
29 Section 1112. Whistleblower provisions.
30 (a) Adverse action prohibited.--No employer may discharge,
19870H1852B3645 - 100 -
1 threaten or otherwise discriminate or retaliate against an 2 employee regarding the employee's compensation or terms, 3 conditions, location or privileges of employment because the 4 employee makes or is about to make a good faith report, verbally 5 or in writing, to the employer or appropriate authority an 6 instance of wrong doing under this act. 7 (b) Remedies.--The remedies, penalties and enforcement 8 procedures for violations of this section shall be as provided 9 in the act of December 12, 1986 (P.L.1559, No.169), known as the 10 Whistleblower Law. 11 (c) Definitions.--As used in this section, the following 12 words and phrases shall have the meanings given to them in this 13 subsection: 14 "Appropriate authority." A Federal, State or local 15 government body, agency or organization having jurisdiction over 16 criminal law enforcement, regulatory violations, professional 17 conduct or ethics, or waste; or a member, officer, agent, 18 representative or supervisory employee of the body, agency or 19 organization. The term includes, but is not limited to, the 20 office of Attorney General, the Department of the Auditor 21 General, the Treasury Department, the General Assembly and 22 committees of the General Assembly having the power and duty to 23 investigate criminal law enforcement, regulatory violations, 24 professional conduct or ethics or waste. 25 "Employee." A person who performs a service for wages or 26 other renumeration under a contract of hire, written or oral, 27 express or implied, for an employer, whether or not the employer 28 is a public body. 29 "Employer." A person supervising one or more employees, 30 including the employee in question; a superior of that 19870H1852B3645 - 101 -
1 supervisor; or an agent of a public body. 2 "Good faith report." A report of conduct defined in this act 3 as wrongdoing or waste which is made without malice or 4 consideration of personal benefit and which the person making 5 the report has reasonable cause to believe is true. 6 "Public body." All of the following: 7 (1) A State officer, agency, department, division, 8 bureau, board, commission, council, authority or other body 9 in the executive branch of State government. 10 (2) A county, city, township, regional governing body, 11 council, school district, special district or municipal 12 corporation, or a board, department, commission, council or 13 agency. 14 (3) Any other body which is created by Commonwealth or 15 political subdivision authority or which is funded in any 16 amount by or through Commonwealth or political subdivision 17 authority or a member or employee of that body. 18 "Waste." An employer's conduct or omissions which result in 19 substantial abuse, misuse, destruction or loss of funds or 20 resources belonging to or derived from Commonwealth or political 21 subdivision sources. 22 "Whistleblower." A person who witnesses or has evidence of 23 wrongdoing or waste while employed and who makes a good faith 24 report of the wrongdoing or waste, verbally or in writing, to 25 one of the person's superiors, to an agent of the employer or to 26 an appropriate authority. 27 "Wrongdoing." A violation which is not of a merely technical 28 or minimal nature of a Federal or State statute or regulation, 29 of a political subdivision, ordinance or regulation or of a code 30 of conduct or ethics designed to protect the interest of the 19870H1852B3645 - 102 -
1 public or the employer. 2 Section 1113. Notice of proposed settlement. 3 When a settlement is proposed in any proceeding brought under 4 this act, notice of the proposed settlement shall be sent to all 5 known responsible persons and published in the Pennsylvania 6 Bulletin and in a newspaper of general circulation in the area 7 of the release. The notice shall include the terms of the 8 settlement and the manner of submitting written comments during 9 a 60-day public comment period. The settlement shall become 10 final upon the filing of the department's response to the 11 significant written comments. The notice, the written comments 12 and the department's response shall constitute the written 13 record upon which the settlement will be reviewed. A person 14 adversely affected by the settlement may file an appeal to the 15 board. The settlement shall be upheld unless it is found to be 16 arbitrary and capricious on the basis of the administrative 17 record. 18 Section 1114. Limitation on action. 19 Notwithstanding the provisions of any other statute to the 20 contrary, actions for civil or criminal penalties under this act 21 or civil actions for releases of hazardous substances may be 22 commenced at any time within a period of 20 years from the date 23 the unlawful conduct or release is discovered. Actions to 24 recover response costs may be commenced within six years of the 25 date those costs are incurred. The initial action to recover 26 response costs shall be controlling as to liability in all 27 subsequent actions. 28 Section 1115. Citizen suits. 29 (a) General rule.--A person who has experienced or is 30 threatened with personal injury or property damage as a result 19870H1852B3645 - 103 -
1 of a release of a hazardous substance may file a civil action 2 against any person to prevent or abate a violation of this act 3 or of any order, regulation, standard or approval issued under 4 this act. 5 (b) Jurisdiction.--The courts of common pleas shall have 6 jurisdiction over any actions authorized under this section. No 7 action may be commenced under this section prior to 60 days 8 after the plaintiff has given notice to the department, to the 9 host municipality and to the alleged violator of this act, or of 10 any regulations or orders of the department under this act; nor 11 may such action be commenced when the department has commenced 12 and is diligently prosecuting a civil or criminal action in a 13 court of the United States or a state to require compliance with 14 the statute, permit, standard, regulation, condition, 15 requirement, prohibition or order. In any such civil action 16 commenced by the department, any person may intervene as a 17 plaintiff as a matter of right. The court may grant any 18 equitable relief; may impose a civil penalty under section 1104; 19 and may award litigation costs, including reasonable attorney 20 and witness fees, to the prevailing or substantially prevailing 21 party whenever the court determines such an award is 22 appropriate. 23 (c) Departmental intervention.--The department may intervene 24 as a matter of right in any action authorized under this 25 section. 26 CHAPTER 13 27 MISCELLANEOUS 28 Section 1301. Studies. 29 The Department of Commerce shall within one year of the 30 effective date of the act complete a study to investigate the 19870H1852B3645 - 104 -
1 use of the Pennsylvania Industrial Development Authority, the 2 Pennsylvania Economic Revitalization Fund and other economic 3 development grants and loans to encourage the reuse, recycling, 4 recovery, minimization and treatment which results in 5 detoxification of hazardous waste. 6 Section 1302. Repeals. <-- 7 As much of subsection (a) as reads: "....through calendar 8 year 1991 and fiscal years beginning in 1991, and at the rate of 9 nine mills upon each dollar of the capital stock value as 10 defined in section 601(a) for the calendar year 1992 and fiscal 11 years beginning in 1992...." (2 occasions) and as much of 12 subsections (b)(1) and (e) as reads: "....through calendar year 13 1991 and fiscal years beginning in 1991, and at the rate of nine 14 mills for calendar year 1992 and fiscal years beginning in 15 1992...." of section 602 of the act of March 4, 1971 (P.L.6, 16 No.2), known as the Tax Reform Code of 1971, are repealed. 17 Section 1303 1302. Effective date. <-- 18 This act shall take effect in 60 days. J9L35VDL/19870H1852B3645 - 105 -