PRIOR PRINTER'S NOS. 2321, 3341 PRINTER'S NO. 3428
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
AND McHALE, OCTOBER 14, 1987
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
JUNE 7, 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 for
6 certain fees and for enforcement, remedies and penalties; and <--
7 making an appropriation; AND REPEALING CERTAIN PROVISIONS <--
8 RELATING TO THE RATE OF THE CAPITAL STOCK FRANCHISE TAX.
9 TABLE OF CONTENTS
10 Chapter 1. Preliminary Provisions
11 Section 101. Short title.
12 Section 102. Declaration of policy.
13 Section 103. Definitions.
14 Section 104. Construction.
15 Chapter 3. Powers and Duties
16 Section 301. Powers and duties of department.
17 Section 302. Special science and technology resources.
18 Section 303. Powers and duties of Environmental Quality Board.
1 Chapter 5. Response and Investigation
2 Section 501. Response authorities.
3 Section 502. Priorities.
4 Section 503. Information gathering and access.
5 Section 504. Cleanup standards.
6 Section 505. Development and implementation of response
7 actions.
8 Section 506. Administrative record.
9 Section 507. Recovery of response costs.
10 Section 508. Administrative and judicial review of response
11 actions.
12 Section 509. Private cause of action.
13 Section 510. Superlien.
14 Section 511. Evaluation grant.
15 Section 512. Acquisition of real property.
16 Section 513. After closure and conveyance of property.
17 Section 514. Contracting.
18 Chapter 7. Liability and Cost Recovery
19 Section 701. Responsible person.
20 Section 702. Scope of liability.
21 Section 703. Defenses to liability.
22 Section 704. Subrogation and insurance.
23 Section 705. Contribution.
24 SECTION 706. DE MINIMIS SETTLEMENTS. <--
25 SECTION 707. NONBINDING ALLOCATION OF LIABILITY.
26 SECTION 708. VOLUNTARY ACCEPTANCE OF RESPONSIBILITY.
27 SECTION 709. MEDIATION.
28 Chapter 9. Fund
29 Section 901. Fund.
30 Section 902. Expenditures from fund.
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1 Section 903. Hazardous waste transportation and management
2 fees.
3 Section 904. Continuing cleanup costs CONTINGENCY SURCHARGE. <--
4 Section 905. Proof of payment required LOAN FUND. <--
5 Chapter 11. Enforcement and Remedies
6 Section 1101. Public nuisances.
7 Section 1102. Enforcement orders.
8 Section 1103. Restraining violations.
9 Section 1104. Civil penalties.
10 Section 1105. Criminal penalties.
11 Section 1106. Search warrants.
12 Section 1107. Existing and cumulative rights and remedies.
13 Section 1108. Unlawful conduct.
14 Section 1109. Presumption of law for civil and administrative
15 proceedings.
16 Section 1110. Collection of fines and penalties.
17 Section 1111. Right of citizen to intervene in proceedings.
18 Section 1112. Whistleblower provisions.
19 Section 1113. Notice of proposed settlement.
20 Section 1114. Limitation on action.
21 Section 1115. Citizen suits.
22 Chapter 13. Miscellaneous
23 SECTION 1301. STUDIES. <--
24 SECTION 1302. REPEALS.
25 Section 1301 1303. Effective date. <--
26 The General Assembly of the Commonwealth of Pennsylvania
27 hereby enacts as follows:
28 CHAPTER 1
29 PRELIMINARY PROVISIONS
30 Section 101. Short title.
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1 This act shall be known and may be cited as the Hazardous
2 Sites Cleanup Act.
3 Section 102. Declaration of policy.
4 The General Assembly finds and declares as follows:
5 (1) The citizens of this Commonwealth have a right to
6 clean water and a healthy environment, and the General
7 Assembly has a responsibility to insure the protection of
8 that right.
9 (2) Hazardous substances which have been released into
10 the environment through improper disposal or other means pose
11 a real and substantial threat to the public health and
12 welfare of the residents of this Commonwealth and to the
13 natural resources upon which they rely.
14 (3) The cleanup of sites that are releasing or
15 threatening the release of hazardous substances into the
16 environment and the replacement of contaminated water
17 supplies protects the public health, preserves and restores
18 natural resources and is vital to the economic development of
19 this Commonwealth.
20 (4) When releases of hazardous substances contaminate
21 public water supplies, the replacement of those water
22 supplies is frequently beyond the resources of the people
23 affected.
24 (5) Traditional legal remedies have not proved adequate
25 for preventing the release of hazardous substances into the
26 environment or for preventing the contamination of water
27 supplies. It is necessary, therefore, to clarify the
28 responsibility of persons who own, possess, control or
29 dispose of hazardous substances; to provide new remedies to
30 protect the citizens of this Commonwealth against the release
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1 of hazardous substances; and to assure the replacement of
2 water supplies.
3 (6) Traditional methods of administrative and judicial
4 review have interfered with responses to the release of
5 hazardous substances into the environment. It is, therefore,
6 necessary to provide a special procedure which will postpone
7 both administrative and judicial review until after the
8 completion of the response action.
9 (7) The Federal Superfund Act provides numerous
10 opportunities for states to participate in the cleanup of
11 hazardous sites. It is in the interest of the citizens of
12 this Commonwealth that the Commonwealth be authorized to
13 participate in such cleanups and related activities to the
14 fullest extent.
15 (8) Many of the hazardous sites in this Commonwealth
16 which do not qualify for cleanup under the Federal Superfund
17 Act pose a substantial threat to the public health and
18 environment. Therefore, an independent site cleanup program
19 is necessary to promptly and comprehensively address the
20 problem of hazardous substance releases in this Commonwealth,
21 whether or not these sites qualify for cleanup under the
22 Federal Superfund Act.
23 (9) Extraordinary enforcement remedies and procedures
24 are necessary and appropriate to encourage responsible
25 persons to cleanup hazardous sites and to deter persons in
26 possession of hazardous substances from careless or haphazard
27 management.
28 (10) Persons engaged in the transportation and
29 management of hazardous waste should contribute to the fund
30 through a hazardous waste management fee that is designed to
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1 encourage and reward sound waste management practices such as
2 source reduction, recycling and on-site treatment.
3 (11) IT IS THE INTENT OF THE GENERAL ASSEMBLY THAT THE <--
4 DEPARTMENT SHALL UNDERTAKE SUCH MEASURES AND STEPS AS ARE
5 NECESSARY TO EXPEDITE THE SITING, REVIEW, PERMITTING AND
6 DEVELOPMENT OF HAZARDOUS WASTE TREATMENT AND DISPOSAL
7 FACILITIES WITHIN THIS COMMONWEALTH, IN ORDER TO PROTECT
8 PUBLIC HEALTH AND SAFETY, FOSTER ECONOMIC GROWTH AND PROTECT
9 THE ENVIRONMENT.
10 (11) (12) The following are the purposes of this act: <--
11 (i) Authorize the department to participate in the
12 investigation, assessment and cleanup of sites under the
13 Federal Superfund Act to the full extent provided by that
14 act.
15 (ii) Establish independent authority for the
16 department to conduct site investigations and
17 assessments; to provide for the cleanup of sites in this
18 Commonwealth that are releasing or threatening the
19 release of hazardous substances or contaminants into the
20 environment; to require the replacement of water supplies
21 contaminated by these substances; to take other
22 appropriate response actions and recover from responsible
23 persons its costs for conducting the responses.
24 (iii) Establish the fund to provide to the
25 department the financial resources needed to plan and
26 implement a timely and effective response to the release
27 of hazardous substances and contaminants, including
28 emergency response actions, studies and investigations,
29 planning, remedial response, maintenance and monitoring
30 activities, replacement of water supplies and protection
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1 of the public from the hazardous site.
2 (iv) Establish hazardous waste transportation and
3 management fees to encourage preferred hazardous waste
4 management practices and implement the hazardous waste
5 management hierarchy described in the hazardous waste
6 facilities plan and to generate revenues for the fund.
7 (v) Establish and maintain a cooperative State and
8 Federal program for the investigation and cleanup of
9 sites containing hazardous substances or contaminants and
10 for the replacement of affected water supplies and to
11 take other appropriate response actions.
12 (vi) Protect the public health, safety and welfare
13 and the natural resources of this Commonwealth from the
14 short-term and long-term effects of the release of
15 hazardous substances and contaminants into the
16 environment.
17 (vii) Provide a flexible and effective means to
18 implement and enforce the provisions of this act.
19 (viii) Encourage the siting of new hazardous waste
20 management facilities to properly store, treat and
21 dispose of hazardous materials.
22 (ix) Encourage responsible persons to voluntarily
23 perform response activities BY ENABLING THE DEPARTMENT TO <--
24 ENTER INTO SETTLEMENT AGREEMENTS WITH RESPONSIBLE PERSONS
25 TO PERFORM RESPONSE ACTIVITIES THAT PROTECT HUMAN HEALTH
26 AND THE ENVIRONMENT; BY ENABLING THE DEPARTMENT TO ENTER
27 INTO SETTLEMENT AGREEMENTS WITH RESPONSIBLE PERSONS TO
28 SETTLE A MINOR PORTION OF RESPONSE COSTS; AND BY
29 AUTHORIZING THE DEPARTMENT TO UTILIZE MONEYS FROM THE
30 FUND ESTABLISHED BY THIS ACT TO ENTER INTO SETTLEMENT
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1 AGREEMENTS THAT ALLOW THE DEPARTMENT, WHEN NECESSARY TO
2 ACHIEVE A CLEANUP, TO PAY FOR A PORTION OF THE COSTS
3 ASSOCIATED WITH RESPONSE ACTIVITIES.
4 Section 103. Definitions.
5 The following words and phrases when used in this act shall
6 have the meanings given to them in this section unless the
7 context clearly indicates otherwise:
8 "Act of God." An unanticipated grave natural disaster or
9 other natural phenomenon of an exceptional, inevitable and
10 irresistible character the effects of which could not have been
11 prevented or avoided by the exercise of due care or foresight.
12 "Alternative water supplies." Includes but is not limited to
13 drinking water and household water supplies.
14 "Board." The Environmental Hearing Board of the
15 Commonwealth.
16 "Captive facility." A facility which is located upon lands
17 owned by a generator of hazardous waste and which is operated to
18 provide for the treatment or disposal solely of that generator's
19 hazardous waste.
20 "Claim." A demand in writing for a sum certain.
21 "Contaminant." Includes but is not limited to a substance
22 whose release is regulated under a statute administered by the
23 department or an element, substance, compound or mixture,
24 including disease-causing agents, which, after release into the
25 environment, may cause either of the following:
26 (1) In humans or other organisms or their offspring,
27 death; disease; behavioral abnormalities; cancer; genetic
28 mutation; physiological malfunctions, including malfunctions
29 in reproductions; or physical deformations.
30 (2) Damage to natural resources.
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1 THE TERM SHALL NOT INCLUDE AN ELEMENT, SUBSTANCE, COMPOUND OR <--
2 MIXTURE FROM A COAL MINING OPERATION UNDER THE JURISDICTION OF
3 THE DEPARTMENT OR FROM A SITE ELIGIBLE FOR FUNDING UNDER TITLE
4 IV OF THE SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977
5 (PUBLIC LAW 95-87, 30 U.S.C. § 1201 ET SEQ.), NOR SHALL THE TERM
6 INCLUDE NATURAL GAS, NATURAL GAS LIQUIDS, LIQUIFIED NATURAL GAS
7 OR SYNTHETIC GAS USABLE FOR FUEL OR MIXTURES OF NATURAL GAS AND
8 SYNTHETIC GAS USABLE FOR FUEL, EXCEPT FOR THE PURPOSES OF AN
9 EMERGENCY RESPONSE.
10 "Department." The Department of Environmental Resources of
11 the Commonwealth.
12 "Disposal." The incineration, combustion, evaporation, air
13 stripping, deposition, injection, dumping, spilling, leaking,
14 mixing or placing of a hazardous substance or contaminant into
15 the air, water or land in a manner which allows it to enter the
16 environment.
17 "Drinking water supply." A raw or finished water source that
18 is or may be used by a public water system, as defined in the
19 Safe Drinking Water Act (Public Law 95-323, 21 U.S.C. § 349 and
20 42 U.S.C. §§ 201 and 300f et seq), or as drinking water by one
21 or more individuals.
22 "Environment." Surface water, groundwater, drinking water
23 supply, land surface or subsurface strata or ambient air within
24 this Commonwealth.
25 "Federal Superfund Act." The Comprehensive Environmental
26 Response Compensation and Liability Act of 1980 (Public Law 96-
27 510, 94 Stat.2767).
28 "Federal Superfund Program." The hazardous waste site
29 cleanup program provided for in the Federal Superfund Act.
30 "Fund." The Hazardous Sites Cleanup Fund established by
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1 section 901.
2 "Groundwater." Water occurring in a saturated zone or
3 stratum or percolating beneath the surface of land.
4 "Hazardous substance."
5 (1) Any element, compound or material which can pose a
6 threat to the public health or the environment when released
7 into the environment. The term includes, but is not limited
8 to:
9 (i) A hazardous waste designated under the act of
10 July 7, 1980 (P.L.380, No.97), known as the Solid Waste
11 Management Act.
12 (ii) A hazardous substance designated pursuant to
13 the Federal Superfund Act.
14 (iii) A hazardous material designated under the
15 Hazardous Materials Transportation Act (Public law 93-
16 633, 88 Stat.2156).
17 (iv) An object or material which is contaminated
18 with a hazardous substance.
19 (v) Other substances designated by the department as <--
20 detrimental to public health, safety and the environment
21 by regulation.
22 (vi) Waste oil.
23 (V) OTHER SUBSTANCES DESIGNATED BY THE DEPARTMENT AS <--
24 DETRIMENTAL TO PUBLIC HEALTH, SAFETY AND THE ENVIRONMENT
25 BY REGULATIONS PROMULGATED UNDER THIS ACT.
26 (2) The term does not include petroleum products,
27 including crude oil or any fraction thereof, which are not
28 otherwise specifically listed or designated as a hazardous
29 substance under paragraph (1) nor natural gas, natural gas
30 liquids, liquefied natural gas or synthetic gas usable for
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1 fuel or mixtures of natural gas and synthetic gas usable for
2 fuel OR AN ELEMENT, SUBSTANCE, COMPOUND OR MIXTURE FROM A <--
3 COAL MINING OPERATION UNDER THE JURISDICTION OF THE
4 DEPARTMENT OR FROM A SITE ELIGIBLE FOR FUNDING UNDER TITLE IV
5 OF THE SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977
6 (PUBLIC LAW 95-87, 30 U.S.C. § 1201 ET SEQ.).
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 "Interim response." Response which does not exceed 12 months
11 in duration or $2,000,000 in cost. An interim response may
12 exceed these limitations only where one of the following
13 applies:
14 (1) Continued response actions are immediately required
15 to prevent, limit or mitigate an emergency.
16 (2) There is an immediate risk to public health, safety,
17 welfare or the environment.
18 (3) Assistance will not otherwise be provided on a
19 timely basis.
20 (4) Continued response action is otherwise appropriate
21 and consistent with future remedial response to be taken.
22 "Natural resources." Land, fish, wildlife, biota, air,
23 water, groundwater, drinking water supplies and other resources
24 belonging to, managed by, held in trust by, appertaining to or
25 otherwise controlled by the United States, the Commonwealth or a
26 political subdivision. The term includes resources protected by
27 section 27 of Article I of the Constitution of Pennsylvania.
28 "Owner or operator." A person who owns or operates or has
29 owned or operated a site, or otherwise controlled activities at
30 a site. The term does not include a person who, without
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1 participating in the management of a site, holds indicia of
2 ownership primarily to protect a security interest in the site
3 nor a unit of State or local government which acquired ownership
4 or control involuntarily through bankruptcy, tax delinquency,
5 abandonment, or other circumstances in which the government
6 involuntarily acquires title by virtue of its function as
7 sovereign. This exclusion does not apply to a political
8 subdivision which has caused or contributed to the release or
9 threatened release of a hazardous substance from the facility.
10 "Person." An individual, firm, corporation, association,
11 partnership, consortium, joint venture, commercial entity,
12 authority, interstate body or other legal entity which is
13 recognized by law as the subject of rights and duties. The term <--
14 includes the officers and directors of any corporation or other
15 legal entities having officers, supervisors, councilmen or
16 directors. The term includes the Federal Government, state
17 governments and political subdivisions.
18 "Release." Spilling, leaking, pumping, pouring, emitting,
19 emptying, discharging, injecting, escaping, leaching, dumping or
20 disposal into the environment. The term includes the abandonment
21 or discarding of barrels, containers, vessels and other
22 receptacles containing a hazardous substance or contaminant, AND <--
23 EXCLUDES THE APPLICATION OF FERTILIZER IN AGRICULTURAL USES IN
24 ACCORDANCE WITH PROPER APPLICATION PROCEDURES, CONTROLS AND
25 LOADINGS.
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
19870H1852B3428 - 12 -
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
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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.
17 "Secretary." The Secretary of Environmental Resources of the
18 Commonwealth.
19 "SERVICE STATION OPERATOR." A PERSON WHO OWNS OR OPERATES A <--
20 MOTOR VEHICLE SERVICE STATION, FILLING STATION, GARAGE OR
21 SIMILAR OPERATION ENGAGED IN SELLING, REPAIRING OR SERVICING
22 MOTOR VEHICLES WHO ACCEPTS OR UNDERTAKES THE COLLECTION,
23 ACCUMULATION AND DELIVERY TO AN OIL RECYCLING FACILITY OF
24 RECYCLED OIL THAT HAS BEEN REMOVED FROM THE ENGINE OF A MOTOR
25 VEHICLE OR APPLIANCE AND THAT IS PRESENTED FOR COLLECTION,
26 ACCUMULATION AND DELIVERY TO AN OIL RECYCLING FACILITY. THE TERM
27 INCLUDES A GOVERNMENT AGENCY THAT ESTABLISHES A FACILITY SOLELY
28 FOR THE PURPOSE OF ACCEPTING RECYCLED OIL AND OWNERS OR
29 OPERATORS OF REFUSE COLLECTION SERVICES WHO ARE COMPELLED BY LAW
30 TO COLLECT, ACCUMULATE AND DELIVER RECYCLED OIL TO AN OIL
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1 RECYCLING FACILITY.
2 "Site." Any building; structure; installation; equipment;
3 pipe or pipeline, including any pipe into a sewer or publicly-
4 owned treatment works; well; pit; pond; lagoon; impoundment;
5 ditch; landfill; storage container; tank; vehicle; rolling
6 stock; aircraft; vessel; or area where a contaminant or
7 hazardous substance has been deposited, stored, treated,
8 released, disposed of, placed, or otherwise come to be located.
9 The term does not include a location where the hazardous
10 substance or contaminant is a consumer product in normal
11 consumer use or where pesticides and fertilizers are in normal
12 appropriate agricultural use.
13 "Transportation." The conveyance of a hazardous substance or
14 contaminant by any mode, including pipeline.
15 "Treatment." A method, technique or process, including
16 neutralization, designed to change the physical, chemical or
17 biological character or composition of a hazardous substance so
18 as to neutralize the hazardous substance or to render the
19 hazardous substance nonhazardous, safer for transport, suitable
20 for recovery, suitable for storage or reduced in volume. The
21 term includes activity or processing designed to change the
22 physical form or chemical composition of hazardous substance so
23 as to render it neutral or nonhazardous.
24 "Vessel." A watercraft or other artificial contrivance used,
25 or capable of being used, as a means of transportation on water.
26 Section 104. Construction.
27 Nothing in this act shall be construed to affect, impair or
28 repeal any provision of any other statute. No action by the
29 department under this act shall be understood or construed as
30 precluding the department from taking any action authorized by
19870H1852B3428 - 15 -
1 this act or any other statute administered by the department.
2 CHAPTER 3
3 POWERS AND DUTIES
4 Section 301. Powers and duties of department.
5 The department has the following powers and duties:
6 (1) Develop, administer and enforce a program to provide
7 for the investigation, assessment and cleanup of hazardous
8 sites in this Commonwealth pursuant to the provisions of this
9 act and regulations adopted under this act.
10 (2) Undertake activities necessary or proper to
11 cooperate with and fully participate in the Federal Superfund
12 Program, including serving as the agency of the Commonwealth
13 for the receipt of moneys from the Federal Government or
14 other public or private agencies.
15 (3) Develop, administer and enforce an independent State
16 response program for the investigation, assessment and
17 cleanup of hazardous sites and replacement of water supplies
18 and the protection of the citizens and natural resources of
19 this Commonwealth from the dangers of hazardous substances
20 and contaminants that have been released or are threatened to
21 be released into the environment.
22 (4) Cooperate with appropriate Federal, State,
23 interstate and local government agencies in carrying out its
24 duties under this act by, among other things, accepting an
25 appropriate delegation or agency relationship from such an
26 agency to facilitate the cleanup of hazardous sites in this
27 Commonwealth.
28 (5) Administer the fund and any fund for hazardous waste
29 facilities siting and expend money from the funds in
30 accordance with this act.
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1 (6) Administer and expend funds appropriated to the
2 department or granted to the Commonwealth under the Federal
3 Superfund Act or other authority for the protection of the
4 public and the natural resources of this Commonwealth from
5 releases of hazardous substances or contaminants.
6 (7) Promulgate the State standards and requirements
7 applicable, relevant or appropriate for the cleanup of
8 hazardous sites under this act and the Federal Superfund Act.
9 (8) Develop a program for public participation in the
10 assessment of sites and selection of appropriate remedial
11 responses.
12 (9) Issue orders to enforce provisions of this act and
13 regulations promulgated under it.
14 (10) Institute, in a court of competent jurisdiction,
15 proceedings to compel compliance with this act, regulations
16 promulgated under it or an order of the department.
17 (11) Institute prosecutions under this act.
18 (12) Appoint advisory committees as the secretary deems
19 necessary and proper to assist the department in carrying out
20 this act. The secretary is authorized to pay reasonable and
21 necessary expenses incurred by the members of advisory
22 committees in carrying out their functions.
23 (13) Acquire special scientific and technical staff
24 resources to provide specialized expertise in areas related
25 to the evaluation of sites and selection of responses to
26 advise the department regarding standards, technologies, risk
27 assessments and other matters related to the cleanup of
28 hazardous sites; the regulation of hazardous substances and
29 contaminants; and the enforcement of this act.
30 (14) Act as trustee of this Commonwealth's natural
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1 resources. The department may assess and collect damages to
2 natural resources for the purposes of this act and the
3 Federal Superfund Act for those natural resources under its
4 trusteeship.
5 (15) Provide for emergency response capability for
6 spills, accidents and other releases of hazardous substances
7 and contaminants.
8 (16) Implement section 27 of Article 1 of the
9 Constitution of Pennsylvania.
10 (17) Do any and all other acts and things not
11 inconsistent with any provision of this act which it may deem
12 necessary or proper for the effective enforcement of this act
13 and the regulations promulgated under it.
14 Section 302. Special science and technology resources.
15 (a) Establishment.--The department shall establish an
16 additional complement of individuals with expertise and advanced
17 degrees in specialized fields of science and technology relevant
18 to administration and enforcement of this act.
19 (b) Expertise.--The special science and technology staff
20 shall have expertise in fields relating to the identification,
21 analysis, assessment, prevention or abatement of hazards to the
22 public health or the environment resulting from the release of
23 hazardous substances or contaminants into the environment. The
24 special science and technology staff may include, without
25 limitation, individuals trained in toxicology, hydrogeology,
26 chemistry, biology, soil science, biochemistry, environmental
27 engineering, epidemiology, value engineering and risk assessment
28 sciences.
29 (c) Availability.--The special science and technology staff
30 shall be available to review consultants' contracts, reports and
19870H1852B3428 - 18 -
1 feasibility studies; prepare and review environmental
2 assessments, serve as expert witnesses in department litigation;
3 provide scientific analysis or studies to support rulemaking
4 activities of the department; and perform other duties as
5 assigned by the secretary in furtherance of this act or other
6 environmental protection laws administered by the department.
7 (d) Civil service.--In order to obtain the most highly
8 qualified individuals for the special science and technology
9 staff, the secretary may hire the staff without regard to the
10 provisions of the act of August 5, 1941 (P.L.752, No.286), known
11 as the Civil Service Act.
12 Section 303. Powers and duties of Environmental Quality Board.
13 The board, exercising its powers and duties under section
14 1920 of the act of April 9, 1929 (P.L. 177, No.175), known as
15 The Administrative Code of 1929, has the power and duty to
16 promulgate the regulations of the department to accomplish the
17 purposes and to carry out the provisions of this act, including
18 but not limited to regulations relating to the protection, from
19 the release of hazardous substances, of the safety, health,
20 welfare and property of the public and of the air, water, land
21 and other natural resources of this Commonwealth.
22 CHAPTER 5
23 RESPONSE AND INVESTIGATION
24 Section 501. Response authorities.
25 (a) General rule.--Where there is a release or threat of
26 release from a site of a contaminant which presents a hazard to
27 the public health or safety or the environment or where a
28 hazardous substance is released or threatened to be released,
29 the department shall investigate and, IF FURTHER RESPONSE ACTION <--
30 IS DEEMED APPROPRIATE, THE DEPARTMENT MAY NOTIFY THE OWNER,
19870H1852B3428 - 19 -
1 OPERATOR OR ANY OTHER RESPONSIBLE PARTY OF SUCH RELEASE OR
2 THREAT OF A RELEASE AND ALLOW SUCH PERSON OR PERSONS TO
3 INVESTIGATE AND UNDERTAKE AN APPROPRIATE RESPONSE, OR may
4 undertake any further investigation, interim response or
5 remedial response relating to the contaminant or hazardous
6 substance which the department deems necessary or appropriate to
7 protect the public health, safety or welfare or the environment.
8 (b) Effect on liability.--No response action taken by any
9 person shall be construed as an admission of liability for a
10 release or threatened release.
11 (c) Exclusion.--
12 (1) The department shall not provide for an interim
13 response or remedial response under this section in response
14 to a release or threat of release:
15 (i) of a naturally occurring substance in its
16 unaltered form, or altered solely through naturally
17 occurring processes or phenomena, from a location where
18 it is naturally found;
19 (ii) from products which are part of the structure
20 of, and result in exposure within, residential buildings
21 or business or community structures; or <--
22 (iii) into public or private drinking water supplies
23 due to deterioration of the system through ordinary use; <--
24 OR
25 (IV) FROM A COAL MINING OPERATION UNDER THE
26 JURISDICTION OF THE DEPARTMENT OR FROM A SITE ELIGIBLE
27 FOR FUNDING UNDER TITLE IV OF THE SURFACE MINING CONTROL
28 AND RECLAMATION ACT OF 1977 (PUBLIC LAW 95-87, 30 U.S.C.
29 § 1201 ET SEQ.).
30 (2) Notwithstanding paragraph (1), to the extent
19870H1852B3428 - 20 -
1 authorized by this section, the department may respond to a
2 release or threat of release when, in the department's
3 discretion, it determines that the release or threat of
4 release constitutes a public health, safety, or environmental
5 emergency and that no other person with the authority and
6 capability to respond to the emergency will do so in a timely
7 manner.
8 (d) Investigations.--The department shall undertake
9 investigations, monitoring, surveys, testing and other similar
10 activities necessary or appropriate to identify the existence
11 and extent of the release or threat of release, the source and
12 nature of the hazardous substances or contaminants and the
13 extent of danger to the public health or welfare or the
14 environment. The department may also undertake planning, legal,
15 fiscal, economic, engineering, architectural and other studies
16 or investigations necessary or appropriate to plan and direct a
17 response action, to recover the costs of the response action and
18 to enforce the provisions of this act. The department shall
19 undertake the activities described in this subsection in one or
20 more of the following circumstances:
21 (1) When the department is authorized to act under
22 subsection (a).
23 (2) When the department has reason to believe that a
24 release of a hazardous substance or a contaminant has
25 occurred or is about to occur.
26 (3) When the department determines that illness or
27 disease or complaints of illness or disease may be
28 attributable to exposure to a hazardous substance or
29 contaminant.
30 (E) NOTICE OF INVESTIGATIONS.--THE DEPARTMENT, UPON <--
19870H1852B3428 - 21 -
1 UNDERTAKING ANY INVESTIGATION, INTERIM RESPONSE OR REMEDIAL
2 RESPONSE UNDER THIS SECTION, SHALL GIVE PROMPT WRITTEN NOTICE
3 THEREOF TO THE OWNER AND OPERATOR OF THE SITE AND TO THE FIRST
4 MORTGAGEE HOLDING A MORTGAGE ON THE PREMISES ON WHICH THE SITE
5 IS LOCATED.
6 (e) (F) Bidding for remedial or removal actions.-- <--
7 (1) The department may prequalify bidders for remedial
8 or removal actions taken under subsection (b). The department
9 may reject the bid of a prospective bidder who has not been
10 prequalified.
11 (2) To prequalify bidders, the department shall adopt,
12 by regulation, and apply a uniform system of rating bidders.
13 In order to obtain information for rating, the department may
14 require from prospective bidders answers to questions,
15 including, but not limited to, questions about the bidder's
16 financial ability; the bidder's experience in removal and
17 remedial action involving hazardous substances; the bidder's
18 past safety record; and the bidder's past performance on
19 Federal, State or local government projects. The department
20 may also require prospective bidders to submit financial
21 statements.
22 (3) The department shall utilize the business financial
23 data and information submitted by a bidder under this section
24 only for the purposes of prequalifying bidders and shall not
25 otherwise disclose this data or information.
26 Section 502. Priorities.
27 (a) List.--The department shall establish a temporary list <--
28 (1) THE DEPARTMENT SHALL ESTABLISH A TEMPORARY LIST of <--
29 priorities among sites with releases or threatened releases
30 for the purpose of taking remedial response. The temporary
19870H1852B3428 - 22 -
1 list, with necessary modifications, shall remain in effect
2 until the department promulgates regulations establishing
3 criteria for determining priorities among releases and
4 threatened releases. After regulations are promulgated, a
5 permanent priority list shall be established and may be
6 modified according to the criteria set forth in the
7 regulations. Before a list is established under this
8 subsection, the department shall publish the list in the
9 Pennsylvania Bulletin and allow 30 days for comments on the
10 list by the public. Remedial responses may be on-going at
11 more than one site at any given time.
12 (2) THE TEMPORARY LIST SHALL BE COMPOSED OF THE SITES <--
13 FOLLOWING IN PRIORITY THOSE SITES MEETING THE REQUIREMENTS OF
14 THE NATIONAL PRIORITY LISTING OF APPENDIX A OF 40 CFR PART
15 300, BUT WHICH DO NOT QUALIFY FOR NATIONAL PRIORITY LISTING.
16 (3) THE DEPARTMENT, WHEN IT DEEMS NECESSARY FOR THE
17 RESPONSE TO A RELEASE OR FOR THE PROTECTION OF PUBLIC HEALTH,
18 SAFETY OR WELFARE OR THE ENVIRONMENT, MAY INCLUDE ADDITIONAL
19 SITES TO THE TEMPORARY LIST.
20 (b) Criteria.--The temporary list and the regulations
21 required by subsection (a) shall be based upon the relative risk
22 or danger to public health and welfare or the environment,
23 taking into account, to the extent possible, the population at
24 risk, the hazardous potential of the hazardous substances or
25 contaminants at the sites, the potential for contamination of
26 drinking water supplies, the potential for direct human contact,
27 the potential for destruction of sensitive ecosystems, THE <--
28 MAXIMUM USAGE OF AVAILABLE FEDERAL FUNDS FOR SITES WHICH QUALIFY
29 FOR THE NATIONAL PRIORITY LIST, the administrative and financial
30 capabilities of the department and other appropriate factors.
19870H1852B3428 - 23 -
1 (c) Status.--The placement OR REMOVAL of a site with a <--
2 release or threatened release upon either the temporary priority
3 list or the permanent priority list shall not be deemed to be a
4 final action subject to review under Title 2 of the Pennsylvania
5 Consolidated Statutes (relating to administrative law and
6 procedure) or section 1921-A of the act of April 9, 1929
7 (P.L.177, No.175), known as The Administrative Code of 1929, nor
8 shall it confer a right or duty upon the department or any
9 person, NOR SHALL THE PLACEMENT OF THE SITE UPON EITHER THE <--
10 TEMPORARY OR PERMANENT PRIORITY LIST PRECLUDE ANY RESPONSIBLE
11 PERSON FROM UNDERTAKING A VOLUNTARY CLEANUP PURSUANT TO THIS
12 ACT.
13 (D) LISTING.--NINETY DAYS PRIOR TO THE PLACEMENT OF A SITE
14 UPON THE PERMANENT LIST, THE DEPARTMENT SHALL NOTIFY THE KNOWN
15 RESPONSIBLE PERSONS OF THE PROPOSED LISTING. THE SITE SHALL NOT
16 BE PLACED UPON THE LIST IF A RESPONSIBLE PERSON ENTERS INTO A
17 SETTLEMENT WITH THE DEPARTMENT WHICH PROVIDES FOR THE ABATEMENT
18 OF THE RELEASE OR THREATENED RELEASE. ONCE A SITE HAS BEEN
19 PLACED UPON THE LIST, IT SHALL BE REMOVED UPON THE DETERMINATION
20 BY THE DEPARTMENT THAT THE RESPONSIBLE PERSON HAS COMPLIED WITH
21 THE TERMS OF THE SETTLEMENT AND HAS INITIATED A CLEANUP.
22 (E) RIGHTS PRESERVED.--NOTHING IN THIS ACT SHALL BE
23 INTERPRETED TO DEPRIVE ANY INTERESTED OR AGGRIEVED PERSON OF HIS
24 INHERENT RIGHT TO BRING AN ACTION IN MANDAMUS TO CORRECT
25 DEPARTMENT ACTIONS UNDER THE STANDARDS CURRENTLY RECOGNIZED IN
26 PENNSYLVANIA EQUITY PRACTICE.
27 Section 503. Information gathering and access.
28 (a) Authority.--The authority of this section shall be
29 exercised when there is a reasonable basis to believe there may
30 be a release or threat of release of a hazardous substance or
19870H1852B3428 - 24 -
1 contaminant. The authority of this section shall be exercised
2 for the purposes of determining the need for response, choosing
3 or taking a response action under this act or otherwise
4 enforcing the provisions of this act.
5 (b) Information.--
6 (1) The department shall have access to information
7 relevant to any of the following:
8 (i) The identification, nature and quantity of
9 materials which have been or are generated, treated,
10 stored or disposed of at a site or transported to a site.
11 (ii) The nature or extent of a release or threatened
12 release of a hazardous substance or pollutant or
13 contaminant at or from a site.
14 (iii) Information relating to the ability of a
15 person to pay for or to perform a response action.
16 (2) A person who has or may have information under
17 paragraph (1) shall, upon reasonable notice, either:
18 (i) grant the department access at all reasonable
19 times to a site or other place or property to inspect and
20 copy all documents or records relating to the matter; or
21 (ii) copy and furnish to the department all the
22 documents or records.
23 (c) Right of entry.--The department may enter at reasonable
24 times a site or other place or property in one or more of the
25 following circumstances:
26 (1) A hazardous substance or contaminant may be or has
27 been generated at, stored at, treated at, disposed of at or
28 transported from the place.
29 (2) A hazardous substance or contaminant has been or is
30 being or threatens to be released.
19870H1852B3428 - 25 -
1 (3) Entry is needed to determine the need for response
2 to hazardous substance or contaminant or the appropriate
3 response or to effectuate a response action under this act.
4 (4) A release of a hazardous substance or contaminant
5 has occurred on a nearby property, and entry is required to
6 determine the extent of the release.
7 (5) There is a container or impoundment which is typical
8 of those used to contain or impound hazardous substances and
9 entry is needed to determine the existence of a hazardous
10 substance.
11 (d) Inspection.--
12 (1) The department may inspect and obtain samples from a
13 site or other place or property referred to in subsection (c)
14 or from a location of a suspected hazardous substance or
15 contaminant. The department's right of inspection shall
16 include the sampling of solids, liquids and gases;
17 excavations for soil sampling; drilling and maintenance of
18 wells to monitor groundwater; and the installation and
19 maintenance of other equipment to monitor the nature or
20 extent of a release of a suspected hazardous substance or
21 contaminant. The department may inspect and obtain samples of
22 containers or labeling for suspected hazardous substances or
23 contaminants. Each inspection shall be completed with
24 reasonable promptness.
25 (2) When the department obtains samples, before leaving
26 the premises, it shall give to the owner, operator, tenant or
27 other person in charge of the place from which the samples
28 were obtained a receipt describing the sample obtained and,
29 when requested, a portion of the sample. A copy of the
30 results of an analysis made of the samples shall be furnished
19870H1852B3428 - 26 -
1 promptly to the owner, operator, tenant or other person in
2 charge when the person can be located.
3 (e) Duty to cooperate with response action.--
4 (1) The following persons shall allow the department
5 access or right of entry and inspection as may be reasonably
6 necessary to determine the nature and extent of a release of
7 a hazardous substance or contaminant:
8 (i) A person who owns or occupies land on which
9 there is a release or threat of a release of a hazardous
10 substance or contaminant.
11 (ii) A person who owns or occupies land which is
12 near the site of a release or threatened release.
13 (iii) A person who owns or occupies land on which
14 there is a container or impoundment typical of those used
15 to contain or impound hazardous substances.
16 (iv) A person who is a responsible person under
17 section 701.
18 (2) The following persons shall allow the department
19 access or right of entry and inspection as may be reasonably
20 necessary to perform a response under section 501:
21 (i) A person who owns or occupies land on which
22 there is a release or a threat of release of a hazardous
23 substance or contaminant.
24 (ii) A person who owns or occupies land which may be
25 affected by the release of a hazardous substance or
26 contaminant.
27 (iii) A person who is a responsible person under
28 section 701.
29 (f) Remedies.--
30 (1) In addition to any other remedy provided by this
19870H1852B3428 - 27 -
1 act, the department may enforce the provisions of this
2 section by issuing orders requiring access to information,
3 requiring entry onto property and restraining interference
4 with any response action. An order issued under this section
5 may be appealed to the board under section 1921-A of the act
6 of April 9, 1929 (P.L.177, No.175), known as The
7 Administrative Code of 1929.
8 (2) The department may immediately apply to a court of
9 competent jurisdiction to enforce its order, unless the board
10 has issued a supersedeas. The court shall immediately enforce
11 the department's order upon finding all of the following:
12 (i) The order is authorized by this act.
13 (ii) There has not been full compliance with the
14 order.
15 (3) In lieu of issuing an order under paragraph (1), the
16 department may apply immediately to a court of competent
17 jurisdiction for the same relief.
18 (4) When the board reviews an order issued under
19 paragraph (1), or when a court reviews the department's
20 request for immediate relief under paragraph (3), the board
21 shall uphold the department's order and the court shall grant
22 the requested relief where all of the following are
23 established:
24 (i) The department has a reasonable basis to believe
25 that there may be a release or a threat of a release of a
26 hazardous substance or contaminant.
27 (ii) The order or relief requested is reasonably
28 related to determining the need for a response, to
29 choosing or taking any response or to otherwise enforcing
30 the provisions of this act.
19870H1852B3428 - 28 -
1 (5) Except as provided in this subsection, there shall
2 be no administrative or judicial review of action by the
3 department or its agents to obtain access to information, to
4 obtain entry onto property or to perform work on the property
5 in connection with a response action. Neither the board nor
6 any court may restrain action of the department under this
7 section unless all of the following apply:
8 (i) The person seeking to restrain the department
9 has given the department a 30-day written notice of his
10 intent to do so.
11 (ii) The department has failed to issue an order
12 within the 30-day period.
13 (6) The minimum civil penalty assessed under section
14 1104 for a violation of an order issued under this section
15 shall be $5,000 for each day the order is violated.
16 (g) Other remedies.--Nothing in this subsection shall
17 preclude the department from securing access or obtaining
18 information in any other lawful manner.
19 (h) Public records.--
20 (1) Except as provided in this subsection, records,
21 reports or other information obtained under this act shall be
22 available to the public for inspection or copying during
23 regular business hours. The department may, upon request,
24 designate records, reports or information as confidential
25 when the person providing the information demonstrates all of
26 the following:
27 (i) The information contains the trade secrets,
28 processes, operations, style of work or apparatus of a
29 person or is otherwise confidential business information, <--
30 INCLUDING INFORMATION OBTAINED UNDER SUBSECTION
19870H1852B3428 - 29 -
1 (B)(1)(III).
2 (ii) The information does not relate to health or
3 safety effects of a hazardous substance or contaminant.
4 (2) When submitting information to the department under
5 this act, a person shall designate the information which the
6 person believes is confidential or shall submit that
7 information separately from other information being
8 submitted.
9 (i) Use of force.--When a person refuses to allow the
10 department to have access to information under subsection (c) or
11 entry onto property under subsection (d), the department shall
12 not use force to obtain the information or entry unless one of
13 the following applies:
14 (1) The department has obtained a search warrant or
15 initiated an action under subsection (f).
16 (2) Immediate action is needed to protect the public
17 health or safety or the environment.
18 Section 504. Cleanup standards.
19 (a) General rule.--Final remedial responses under this act
20 shall meet all standards, requirements, criteria or limitations
21 which are legally applicable or relevant and appropriate under
22 the circumstances presented by the release or threatened release
23 of the hazardous substance or contaminant. Cleanup standards
24 promulgated or ordered under this act shall be at least as
25 stringent as those promulgated under the Federal Superfund Act.
26 (b) Rulemaking.--The department may SHALL promulgate the <--
27 standards, requirements, criteria or limitations that are
28 generally applicable to remedial responses to releases of
29 hazardous substances or contaminants by regulation, by policy <--
30 statement or by providing actual notice to a responsible person
19870H1852B3428 - 30 -
1 of the applicable, or relevant and appropriate, requirements.
2 (c) Form.--The department's standards for remedial responses
3 may include, but are not limited to, regulations, policies,
4 guidelines, design manuals, plans, executive orders, forms and
5 modules and other documents used in environmental programs
6 administered by the department.
7 (d) Special standards.--In addition to the promulgation of
8 State standards, requirements, criteria or limitations which are
9 generally applicable, the department may add special standards
10 on a case-by-case basis in order to assure protection of human
11 health and the environment.
12 (e) Modification.--The department may modify otherwise
13 applicable requirements when any of the following apply:
14 (1) Compliance with a requirement at a site will result
15 in greater risk to the public health and the environment than
16 alternative options.
17 (2) Compliance with a requirement at a site is
18 technically infeasible from an engineering perspective.
19 (3) The remedial response selected will attain a
20 standard of performance that is equivalent to that required
21 under the otherwise applicable requirement, through use of
22 another method or approach WHICH IS MORE COST EFFECTIVE. <--
23 (f) Fund money.--In addition to the provisions of subsection
24 (e), when the response action is to be done using only fund
25 money, the department may waive requirements that might
26 otherwise be applicable to a response at the site undertaken by
27 a responsible person if it determines the waiver to be in the
28 public interest.
29 (g) Permits.--When prior written approval is obtained from
30 the department, no State or local permits shall be required for
19870H1852B3428 - 31 -
1 a response action conducted entirely on the site, provided that
2 the response action complies with standards pursuant to this
3 section.
4 (h) Review.--Any action taken by the department under this
5 section shall be subject to judicial or administrative review
6 only as provided in section 508.
7 Section 505. Development and implementation of response
8 actions.
9 (a) Basis.--The selection of a remedial response shall be
10 based upon the administrative record developed under section
11 506.
12 (b) Interim response.--An interim response may be taken
13 before the development of an administrative record when, upon
14 the basis of the information available to the department at the
15 time of the interim response, there is a reasonable basis to
16 believe that prompt action is required to protect the public
17 health or safety or the environment. When the department takes
18 an interim response before the development of an administrative
19 record, it shall provide the notice required by section 506(b)
20 within 30 days of initiating the response action. In addition to
21 the information required by section 506(b), the notice shall
22 describe the actions which have already been taken and any
23 additional actions to be taken prior to the close of the public
24 comment period under section 506(c).
25 (c) Implementation of action.--After the selection of an
26 interim response or a remedial response, the department may
27 implement all or any part of the selected action by doing any of
28 the following:
29 (1) Issuing an order to a responsible person. This
30 paragraph does not prohibit action under paragraph (2).
19870H1852B3428 - 32 -
1 (2) Taking the action itself. This paragraph does not
2 prohibit action under paragraph (1).
3 (d) Orders.--Orders issued under this section include, but
4 are not limited to:
5 (1) Orders requiring a responsible person to take a
6 response action.
7 (2) Orders restraining a person from interfering with a
8 response action.
9 (3) Orders modifying a response action, including
10 response actions which had been previously approved by the
11 department.
12 (e) Judicial action.--The department may file an action to
13 enforce an order issued under this section in Commonwealth Court
14 or in any other court of competent jurisdiction. The department
15 may include in the same action a civil penalty assessment under
16 section 1104. When the department files such an action, its
17 order shall be enforced and its civil penalty assessment shall
18 be upheld unless the person subject to the order or the civil
19 penalty can demonstrate that the department acted arbitrarily
20 and capriciously on the basis of the administrative record
21 developed under section 506.
22 (f) Costs.--
23 (1) When the department issues an order under this
24 section, a person subject to the order may seek to recover
25 from the fund the cost of complying with the order by filing
26 an action with the board after completion of the response
27 action. The action must be filed within 60 days after the
28 completion of the required action. To recover costs, the
29 person must demonstrate by a preponderance of the evidence,
30 upon the basis of the administrative record developed under
19870H1852B3428 - 33 -
1 section 506, all of the following:
2 (i) The person was not a responsible person under
3 this act.
4 (ii) The costs sought to be recovered are reasonable
5 in light of the action required by the order.
6 (2) A person subject to an order under this act may also
7 recover reasonable costs for that portion of the response
8 action ordered which the person can demonstrate to be
9 arbitrary and capricious on the basis of the administrative
10 record developed under section 506.
11 (G) VOLUNTARY SETTLEMENTS.--THE DEPARTMENT, IN ITS <--
12 DISCRETION, MAY ENTER INTO AN AGREEMENT WITH ANY PERSON,
13 INCLUDING A PERSON WHO MAY BE LIABLE UNDER SECTION 701, TO
14 PERFORM ANY RESPONSE ACTION WHEN THE DEPARTMENT DETERMINES THAT
15 SUCH ACTION WILL BE PROPERLY DONE IN ACCORDANCE WITH THE
16 DEPARTMENT'S STANDARDS AND AFTER SUCH PERSON HAS SUBMITTED A
17 PLAN AND OBTAINED THE DEPARTMENT'S APPROVAL OF SUCH PLAN.
18 WHENEVER PRACTICABLE AND IN THE PUBLIC INTEREST, THE DEPARTMENT
19 MAY ENTER INTO AGREEMENTS UNDER THIS SECTION IN ORDER TO
20 EXPEDITE EFFICIENT REMEDIAL ACTION AND MINIMIZE LITIGATION. THE
21 DECISION OF THE DEPARTMENT TO USE OR NOT TO USE THE PROCEDURES
22 OF THIS SUBSECTION IS NOT SUBJECT TO JUDICIAL REVIEW.
23 Section 506. Administrative record.
24 (a) Contents.--The administrative record upon which a
25 response action is based shall consist of all of the following:
26 (1) The notice issued under subsection (b).
27 (2) The department's description of the action and the
28 information which supports the action.
29 (3) Written comments submitted during the public comment
30 period under subsection (c).
19870H1852B3428 - 34 -
1 (4) Transcripts of comments made at the public hearing
2 held under subsection (d).
3 (5) The department's statement of the basis and purpose
4 for its decision, INCLUDING FINDINGS OF FACT, AN ANALYSIS OF <--
5 THE ALTERNATIVES CONSIDERED AND THE REASONS FOR SELECTING THE
6 PROPOSED RESPONSE ACTION, and its response to significant
7 comments made during the public comment period.
8 (6) The docket maintained under subsection (f), listing
9 the contents of the administrative record.
10 (b) Notice.--
11 (1) The department shall issue a notice setting forth
12 all of the following:
13 (i) A brief analysis of the response action and
14 alternative actions that were considered.
15 (ii) The time and place during which the information
16 listed on the docket maintained under subsection (f) may
17 be inspected and copied.
18 (iii) A specified time and place for providing
19 written comments on the response action.
20 (iv) The time and place at which a public hearing
21 will be held to receive oral comments on the response
22 action.
23 (2) The notice shall be mailed to responsible persons
24 whose identities and addresses are known to the department.
25 The notice shall also be published in a newspaper of general
26 circulation in the area in which the release has occurred and
27 in the Pennsylvania Bulletin. The failure to provide this
28 notice does not affect a responsible person's liability under
29 this act.
30 (c) Public comment.--
19870H1852B3428 - 35 -
1 (1) The public comment period shall extend for at least
2 90 days from the date that notice is published in the
3 Pennsylvania Bulletin. During the public comment period the
4 department shall make available for inspection during normal
5 business hours all of the following:
6 (i) The department's description of the response
7 action.
8 (ii) The information supporting the response action.
9 (iii) Written comments submitted during the public
10 comment period.
11 (iv) The docket maintained under subsection (f).
12 (2) The public comment period shall extend at least 30
13 days after the public hearing to provide an opportunity for
14 the submission of rebuttal and supplementary information.
15 (d) Public hearing.--At least one public hearing shall be
16 conducted near the site of the response action to allow
17 interested persons to give oral or written comments. A
18 transcript shall be kept of oral presentations. The hearing
19 shall be scheduled at least 30 days after the publication of the
20 notice in the Pennsylvania Bulletin.
21 (e) Decision.--At the close of the public comment period,
22 the department shall file a statement of the basis and purpose
23 for its decision. It shall include an explanation of any major
24 changes in the response action from that described in the
25 notice. The department shall also file a response to each of the
26 significant comments, criticisms and new data submitted in oral
27 or written presentations during the public comment period.
28 (f) Docket.--The department shall maintain a docket listing
29 of all the items which form the administrative record, and it
30 shall notify a person submitting a comment that it has been
19870H1852B3428 - 36 -
1 entered on the docket. It shall be the responsibility of the
2 person submitting written comments to either verify that the
3 comments have been noted on the docket or to notify the
4 department, before the end of the public comment period, that
5 the docket does not note the submitted written comment.
6 (g) Closing.--The administrative record shall be closed,
7 once the department has filed its statement and response under
8 subsection (e). The department's decision may not be based, in
9 whole or in part, upon information which has not been noted on
10 the docket as of the date the administrative record is closed.
11 The administrative record may be reopened only for any of the
12 following reasons:
13 (1) Additional information which the department
14 determines to be of central relevance to the selected action
15 is obtained during the implementation of the response action.
16 (2) A person raising an objection to the response action
17 can demonstrate that it was impracticable to raise the
18 objection during the public comment period or that the
19 grounds for the objection arose after the public comment
20 period.
21 (3) The department wishes to document its response
22 costs.
23 (4) A case is remanded to the department under section
24 508.
25 (h) Reopening.--To reopen the administrative record, the
26 department shall provide a notice setting forth the purpose of
27 the reopening and the time and place for submitting written
28 comments during a 60-day public comment period. The department
29 may hold a public hearing if a written request is received
30 within 30 days of publication of the notice of reopening. The
19870H1852B3428 - 37 -
1 docket shall note additional information submitted by the
2 department, written comments, oral comments made at the public
3 hearing and the department's responses to the significant
4 comments. The department's decision not to reopen the
5 administrative record may only be reviewed as provided in
6 section 508.
7 Section 507. Recovery of response costs.
8 (a) General rule.--A responsible person under section 701 or
9 a person who causes a release or threat of a release of a
10 hazardous substance or causes a public nuisance shall be liable
11 for the response costs and for damages to natural resources. The
12 department, a Commonwealth agency, or a municipality which
13 undertakes to abate a public nuisance or take a response action
14 may recover those response costs and natural resource damages in
15 an action in equity brought before a court of competent
16 jurisdiction. In addition, the board is given jurisdiction over
17 actions by the department to recover response costs and damages
18 to natural resources.
19 (b) Amount.--In an action to recover response costs and
20 natural resource damages, the department shall include
21 administrative and legal costs incurred from its initial
22 investigation up to the time that it recovers its costs. The
23 amount attributable to administrative and legal costs shall be
24 10% of the amount paid for the response action or the actual
25 costs, whichever is greater.
26 (c) Punitive damages.--A person who fails to comply with an
27 order of the department requiring a response action or the
28 abatement of a public nuisance shall be liable for punitive
29 damages in an amount which is at least equal to but not more
30 than three times the costs recoverable under this section. A <--
19870H1852B3428 - 38 -
1 PARTY SHALL NOT BE LIABLE FOR PUNITIVE DAMAGES WHEN A COURT
2 REVIEWING THE ORDER UNDER SECTION 508 FINDS THAT THE
3 DEPARTMENT'S ORDER WAS INVALID AS TO THAT PARTY.
4 (d) Effect of damages assessment.--A determination or
5 assessment of damages to natural resources for the purposes of
6 this act, the Federal Superfund Act, or section 311 of the
7 Federal Water Pollution Control Act (62 Stat. 1155, 33 U.S.C. §
8 1321) made by the department or other trustee shall have the
9 force and effect of a rebuttable presumption on behalf of the
10 trustee in an administrative or judicial proceeding under this
11 act, the Federal Superfund Act or section 311 of the Federal
12 Water Pollution Act.
13 (e) Civil penalty.--When the department files an action to
14 recover its response costs and natural resources damage
15 assessment, it may also seek civil penalties under section 1104.
16 The department's entitlement to recover its response costs, its
17 assessment of natural resources' damages and its assessment of
18 civil penalties shall be reviewed solely upon the basis of the
19 administrative record developed under section 506. Its right to
20 recover response costs, natural resources' damages and civil
21 penalties shall be upheld unless the liable person can
22 demonstrate that the department acted arbitrarily and
23 capriciously on the basis of the administrative record developed
24 under section 506.
25 (F) RECYCLED OIL.-- <--
26 (1) WHEN RECYCLED OIL IS NOT MIXED WITH ANY OTHER
27 HAZARDOUS SUBSTANCE AND IS STORED, TREATED, TRANSPORTED AND
28 OTHERWISE MANAGED IN COMPLIANCE WITH REGULATIONS OR STANDARDS
29 PROMULGATED UNDER APPLICABLE STATE AND FEDERAL LAW RELATING
30 TO RECYCLED OIL, THEN ALL OF THE FOLLOWING APPLY:
19870H1852B3428 - 39 -
1 (I) NO PERSON MAY RECOVER FROM A SERVICE STATION
2 OPERATOR, UNDER SECTION 702(A)(2) OR (3), RESPONSE COSTS
3 OR DAMAGES RESULTING FROM A RELEASE OR THREATENED RELEASE
4 OF RECYCLED OIL.
5 (II) SECTION 1102 DOES NOT APPLY AGAINST A SERVICE
6 STATION OPERATOR OTHER THAN A SERVICE STATION OPERATOR
7 DESCRIBED IN SECTION 702(A)(1).
8 (2) FOR PURPOSES OF THIS SUBSECTION, A SERVICE STATION
9 OPERATOR MAY PRESUME THAT A SMALL QUANTITY OF USED OIL IS NOT
10 MIXED WITH OTHER HAZARDOUS SUBSTANCES WHEN IT HAS BEEN
11 REMOVED FROM THE ENGINE OF A MOTOR VEHICLE OR APPLIANCE BY
12 THE OWNER OF THE VEHICLE OR APPLIANCE AND IS PRESENTED TO THE
13 OPERATOR FOR COLLECTION, ACCUMULATION AND DELIVERY TO AN OIL
14 RECYCLING FACILITY.
15 Section 508. Administrative and judicial review of response
16 actions.
17 (a) General rule.--Notwithstanding any other provision of
18 law, the provisions of this section shall provide the exclusive
19 method of challenging either the administrative record developed
20 under section 506 or a decision of the department based upon the
21 administrative record.
22 (b) Timing of review.--Neither the board nor a court shall
23 have jurisdiction to review a response action taken by the
24 department or ordered by the department under section 505 until
25 the department files an action to enforce the order or to
26 recover its response costs.
27 (c) Grounds.--A challenge to a response action shall be
28 limited to the administrative record developed under section
29 506. In a challenge to a response action, an objection shall be
30 waived unless it was raised during the public comment period
19870H1852B3428 - 40 -
1 provided under section 506(c). Notwithstanding any provision of
2 section 1921-A of the act of April 9, 1929 (P.L.177, No.175),
3 known as The Administrative Code of 1929, the record for
4 judicial or administrative review shall consist exclusively of
5 the material referred to in section 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
19870H1852B3428 - 41 -
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 (a) (B) Establishment.--An award of response costs, <--
11 assessment of natural resources' damages or assessment of civil
12 penalties shall constitute a judgment against the party found
13 liable. This judgment may be collected in any manner provided by
14 law. The department shall send a notice of lien to the
15 prothonotary or equivalent official of the county in which the
16 responsible party has real or personal property, setting forth
17 the amount of the award of costs, of the assessment of damages
18 and of the assessment of penalties. The prothonotary or
19 equivalent official shall promptly enter upon the civil judgment
20 or order docket the name and address of the responsible party
21 and the amount of the lien as set forth in the notice of lien.
22 Upon entry by the prothonotary, the lien shall attach to the
23 revenue and all real and personal property of the responsible
24 party, whether or not the responsible party is insolvent.
25 (b) (C) Registry.--There is established a central registry <--
26 of all liens filed under this act in the Department of State.
27 The Commonwealth shall file a notice of lien with the Secretary
28 of the Commonwealth in addition to filings with a prothonotary
29 or equivalent official.
30 (c) Priority for affected property.--The notice of lien <--
19870H1852B3428 - 42 -
1 filed under this section affecting property subject to a
2 response action shall create a lien with priority over all other
3 claims or liens filed against the property. If the property
4 comprises six dwelling units or less and is used exclusively for
5 residential purposes, this notice of lien shall not affect a
6 valid lien, right or interest in the property filed in
7 accordance with established procedure prior to the filing of
8 this notice of lien.
9 (D) PRIORITY.--THE NOTICE OF LIEN FILED UNDER THIS SECTION <--
10 SHALL CREATE A LIEN WITH PRIORITY OVER ALL OTHER CLAIMS OR LIENS
11 FILED. WHEN THE PROPERTY IS USED FOR RESIDENTIAL PURPOSES, THIS
12 NOTICE OF LIEN SHALL NOT AFFECT A VALID LIEN, RIGHT OR INTEREST
13 IN THE PROPERTY FILED IN ACCORDANCE WITH ESTABLISHED PROCEDURES
14 PRIOR TO THE FILING OF THIS NOTICE OF LIEN. FOR PURPOSES OF THIS
15 SECTION, RESIDENTIAL PURPOSES INCLUDE ALL MORTGAGES ELIGIBLE FOR
16 PURCHASE BY A CORPORATE INSTRUMENTALITY OF THE UNITED STATES
17 GOVERNMENT.
18 (E) CERTAIN INTERESTS NOT AFFECTED.--THE NOTICE OF LIEN
19 SHALL NOT AFFECT A LIEN, MORTGAGE OR SECURITY INTEREST IN THE
20 PROPERTY WHICH SECURES A LOAN OR EXTENSION OF CREDIT IF THE LOAN
21 OR EXTENSION OF CREDIT, OR THE COMMITMENT TO MAKE THE LOAN OR
22 EXTENSION OF CREDIT, WAS MADE IN GOOD FAITH AND WITHOUT
23 KNOWLEDGE THAT THERE WERE HAZARDOUS SUBSTANCES ON THE PROPERTY
24 AND IF PRIOR TO THE TIME THE LOAN OR COMMITMENT WAS MADE THE
25 LENDER RECEIVED A WRITTEN REPORT OF AN ACTUAL INSPECTION OF THE
26 PROPERTY, WITHIN A REASONABLE TIME IMMEDIATELY PRIOR TO THE DATE
27 OF THE LOAN OR COMMITMENT, WHICH DID NOT REVEAL ANY INDICATION
28 OF THE PRESENCE OF HAZARDOUS SUBSTANCES.
29 (d) Priority for other property (F) TIME.--The notice of <--
30 lien filed under this section affecting property of a
19870H1852B3428 - 43 -
1 responsible person which is not the subject of a response action
2 shall have priority from the day of the filing of the notice of
3 the lien over all other claims and liens filed against the
4 property; but it shall not affect any valid lien, right, or
5 interest in the property filed in accordance with established
6 procedure prior to the filing of a notice of lien under this
7 subsection.
8 (G) NOTICE.--NOTICE SHALL BE MAILED TO ALL KNOWN HOLDERS OF <--
9 LIENS OF RECORD FILED AGAINST PARTIES SUBJECT TO THIS SECTION.
10 Section 511. Evaluation grant.
11 The department may make available a reasonable sum as a grant
12 to the governing body of the host municipality of a site where
13 the department is considering a remedial response. The host
14 municipality shall use this sum solely to conduct an independent
15 technical evaluation of the proposed remedial response. The
16 grant shall not exceed $50,000 unless the department promulgates
17 regulations establishing a schedule for grants.
18 Section 512. Acquisition of real property.
19 (a) General rule.--The department may acquire, by purchase,
20 lease, condemnation, donation or otherwise, real property or an
21 interest in real property that the department, in its
22 discretion, determines is needed to conduct a response action
23 under this act. The department has no duty to acquire any
24 interest in real property under this act.
25 (b) Sovereign immunity.--The Commonwealth shall not be
26 liable under this act as a result of acquiring an interest in
27 real estate under this section, nor shall anything in this act
28 be construed as a waiver of sovereign immunity or a waiver under
29 42 Pa.C.S. § 8522 (relating to exceptions to sovereign
30 immunity).
19870H1852B3428 - 44 -
1 Section 513. After closure and conveyance of property.
2 (a) General rule.--A site at which hazardous substances
3 remain after completion of a response action shall not be put to
4 a use which would disturb or be inconsistent with the response
5 action implemented. The department shall have the authority to
6 issue an order precluding or requiring cessation of activity at
7 a facility which the department finds would disturb or be
8 inconsistent with the response action implemented. A person
9 adversely affected by the order may file an appeal with the
10 board. The department shall require the recorder of deeds to
11 record an order under this subsection in a manner which will
12 assure its disclosure in the ordinary course of a title search
13 of the subject property. An order under this subsection, when
14 recorded, shall be binding upon subsequent purchasers.
15 (b) Acknowledgment.--The grantor, in every deed for the
16 conveyance of property on which a hazardous substance is either
17 presently being disposed or has ever been disposed by the
18 grantor or to the grantor's actual knowledge, shall include in
19 the property description section of the deed an acknowledgment
20 of the hazardous substance disposal. The acknowledgment shall
21 include, but not be limited to, the extent the information is
22 available, the surface area size and exact location of the
23 disposed substances and a description of the types of hazardous
24 substances contained. This property description shall be made a
25 part of the deed for all future conveyances or transfers of the
26 subject property.
27 Section 514. Contracting.
28 (a) Authority.--The department shall have the authority to
29 enter into a contract with any person or firm to have them
30 provide assistance to the department for the implementation of
19870H1852B3428 - 45 -
1 this act.
2 (b) Indemnification.--Any person who enters into a contract
3 with the department to assist the department in implementing
4 this chapter, shall not be required to indemnify the
5 Commonwealth or Commonwealth employees against claims arising
6 out of performance of the contract.
7 CHAPTER 7
8 LIABILITY AND COST RECOVERY
9 Section 701. Responsible person.
10 (a) General rule.--Except for releases of hazardous
11 substances expressly and specifically approved under a valid
12 Federal or State permit, a person shall be responsible for a
13 release or threatened release of a hazardous substance from a
14 site when any of the following apply:
15 (1) The person owns or operates the site:
16 (i) when a hazardous substance is placed or comes to
17 be located in or on a site;
18 (ii) when a hazardous substance is located in or on
19 the site, but before it is released; or
20 (iii) during the time of the release or threatened
21 release.
22 (2) The person generates, owns or possesses a hazardous
23 substance and arranges by contract, agreement or otherwise
24 for the disposal, treatment or transport for disposal or
25 treatment of the hazardous substance.
26 (3) The person accepts hazardous substances for
27 transport to disposal or treatment facilities, incineration
28 vessels or sites selected by such person from which there is
29 a release or a threatened release of a hazardous substance
30 which causes the incurrence of response costs.
19870H1852B3428 - 46 -
1 (b) Exception.--An owner of real property is not responsible <--
2 (B) EXCEPTIONS.-- <--
3 (1) AN OWNER OF REAL PROPERTY IS NOT RESPONSIBLE for the
4 release or threatened release of a hazardous substance from a
5 site in or on the property when the owner demonstrates to the
6 department that all of the following are true:
7 (1) (I) The real property on which the site concerned is <--
8 located was acquired by the owner after the disposal or
9 placement of a hazardous substance on, in or at the site.
10 (2) (II) The owner has exercised due care with respect <--
11 to the hazardous substances concerned, taking into
12 consideration the characteristics of such hazardous
13 substances, in light of all relevant facts and circumstances.
14 (3) (III) The owner took precautions against foreseeable <--
15 acts or omissions of any third party and the consequences
16 that could foreseeably result from such acts or omissions.
17 (4) (IV) When the owner obtained actual knowledge of the <--
18 release or threatened release of a hazardous substance at the
19 site when the owner owned the real property, and the owner
20 did not subsequently transfer ownership of the property to
21 another person without disclosing such knowledge.
22 (5) (V) The owner has not, by act or omission, caused or <--
23 contributed to the release or threatened release of a
24 hazardous substance which is the subject of the action
25 relating to the site.
26 (6) (VI) The owner meets one of these requirements: <--
27 (i) (A) At the time the owner acquired the site, the <--
28 owner did not know, and had no reason to know, that a
29 hazardous substance which is the subject of the release
30 or threatened release was disposed of on, in or at the
19870H1852B3428 - 47 -
1 site. For purposes of this subparagraph, the owner must
2 have undertaken, at the time of acquisition, all
3 appropriate inquiries into the previous ownership and
4 uses of the property consistent with good commercial or
5 customary practice in an effort to minimize liability.
6 The department shall take into account specialized
7 knowledge or experience on the part of the owner, the
8 relationship of the purchase price to the value of the
9 property if uncontaminated, commonly known or reasonably
10 ascertainable information about the property, the
11 obviousness of the presence or likely presence of
12 contamination at the property and the ability to detect
13 the contamination by appropriate inspection.
14 (ii) (B) The owner is a government entity which <--
15 acquired the site by escheat, through any other
16 involuntary transfer or acquisition or through the
17 exercise of eminent domain authority by purchase or
18 condemnation.
19 (iii) (C) The owner acquired the site by inheritance <--
20 or bequest.
21 (D) THE OWNER IS A FINANCIAL INSTITUTION, AN <--
22 AFFILIATE OF A FINANCIAL INSTITUTION OR A PARENT OWNER OF
23 A FINANCIAL INSTITUTION, WHICH ACQUIRED THE SITE, BY
24 FORECLOSURE OR BY DEED IN LIEU OF FORECLOSURE BEFORE THE
25 SITE WAS INCLUDED ON A FEDERAL OR STATE SUPERFUND RANKING
26 LIST AND DID NOT MANAGE OR CONTROL ACTIVITIES OR
27 CONDITIONS AT THE SITE WHICH CONTRIBUTED TO THE RELEASE
28 OR THREATENED RELEASE OF A HAZARDOUS SUBSTANCE. FOR THE
29 PURPOSES OF THIS SUBSECTION, MANAGEMENT SHALL NOT INCLUDE
30 OPERATIONS BY VIRTUE OF SUPERVISION OF THE FINANCES OR
19870H1852B3428 - 48 -
1 FISCAL OPERATIONS OF A RESPONSIBLE PERSON IN CONNECTION
2 WITH A LOAN OR FISCAL OBLIGATION TO THAT RESPONSIBLE
3 PERSON.
4 (7) (VII) The only basis of liability for the landowner <--
5 is ownership of the land.
6 (2) THIS SUBSECTION SHALL NOT APPLY TO AN OWNER OF REAL <--
7 PROPERTY IF THAT REAL PROPERTY IS PRIMARILY USED OR IS UNDER
8 CONSTRUCTION AS SINGLE OR MULTI-FAMILY HOUSING, AND THAT
9 OWNER WAS NOT RESPONSIBLE FOR PLACING THE HAZARDOUS SUBSTANCE
10 ON THE PROPERTY.
11 (c) Employees.--When a person who is responsible for a
12 release or threatened release under subsection (a) is an
13 employee who is acting in the scope of employment:
14 (1) The employee is subject to liability under this
15 section only when the employee's conduct with respect to the
16 hazardous substance was negligent under circumstances in
17 which the employee knew that the substance was hazardous and
18 that the employee's conduct could result in serious harm.
19 (2) The employer shall be considered a person
20 responsible for the release or threatened release and is
21 subject to liability under this section regardless of the
22 degree of care exercised by the employee.
23 Section 702. Scope of liability.
24 (a) General rule.--A person who is responsible for a release
25 or threatened release of a hazardous substance from a site as
26 specified in section 701 is strictly liable for the following
27 response costs and damages which result from the release or
28 threatened release or to which the release or threatened release
29 significantly contributes:
30 (1) Costs of interim response which are reasonable in
19870H1852B3428 - 49 -
1 light of the information available to the department at the
2 time the interim response action was taken.
3 (2) Reasonable and necessary or appropriate costs of
4 remedial response incurred by the United States, the
5 Commonwealth or a political subdivision.
6 (3) Other reasonable and necessary or appropriate costs
7 of response incurred by any other person.
8 (4) Damages for injury to, destruction of, or loss of
9 natural resources within this Commonwealth or belonging to,
10 managed by, controlled by or appertaining to the United
11 States, the Commonwealth or a political subdivision. This
12 paragraph includes the reasonable costs of assessing injury,
13 destruction or loss resulting from such a release.
14 (5) The cost of a health assessment or health effects
15 study.
16 (b) Interest.--
17 (1) The amounts recoverable in an action under sections
18 507 and 1101 include interest on the amounts recoverable
19 under subsection (a). Interest shall accrue from the later
20 of:
21 (i) the date payment of a specified amount is
22 demanded in writing; or
23 (ii) the date of the expenditure concerned.
24 (2) The rate of interest on the outstanding unpaid
25 balance of the amounts recoverable under sections 507 and
26 1101 shall be 6% annually.
27 (c) Contractors.--A person or company who has entered into a
28 contract with the department to assist the department in
29 implementing this act, shall not be held liable under this act
30 for a release of a hazardous substance arising out of
19870H1852B3428 - 50 -
1 performance of the contract when the release is not caused by
2 the contractor's negligence.
3 (d) Commonwealth employees.--Persons employed by the
4 Commonwealth shall not be held liable for a release of a
5 hazardous substance or contaminant, or any other damages
6 incurred, as a result of actions or omissions occurring when
7 acting in their official capacity.
8 Section 703. Defenses to liability.
9 (a) Grounds.--There shall be no liability under section 701
10 for a person otherwise liable who can establish, that the
11 release or threat of release of a hazardous substance and the
12 damages resulting therefrom were caused solely by any of the
13 following:
14 (1) An act of God.
15 (2) An act of war.
16 (3) An act or omission of a third party other than an
17 employee, agent or contractor of the responsible person or
18 one whose act or omission occurs in connection with an
19 agreement or contractual relationship, if the responsible
20 person:
21 (i) exercised due care with respect to the hazardous
22 substance concerned, taking into consideration the
23 characteristics of such hazardous substance, in light of
24 all relevant facts and circumstances; and
25 (ii) took precautions against foreseeable acts or
26 omissions of any such third party and the consequences
27 that could foreseeably result from those acts or
28 omissions.
29 (b) Assistance.--Except as provided in subsection (c), no
30 person shall be liable under this act for costs or damages as a
19870H1852B3428 - 51 -
1 result of actions taken or omitted in the course of rendering
2 care, assistance or advice in accordance with this act or at the
3 direction of the department with respect to an incident creating
4 a danger to public health, safety or welfare or the environment
5 as a result of a release of a hazardous substance or contaminant
6 or the threat thereof. This subsection does not preclude
7 liability for costs or damages as the result of negligence on
8 the part of the person.
9 (c) Government action.--No State agency or political
10 subdivision shall be liable under this act for costs or damages
11 as a result of actions taken by the State agency or political
12 subdivision in response to a release or threatened release of a
13 hazardous substance generated by or from a site.
14 (d) Burden of proof.--A person claiming a defense provided
15 in this section has the burden to prove all elements of the
16 defense by a preponderance of the evidence.
17 Section 704. Subrogation and insurance.
18 (a) General rule.--An owner or operator of a facility or any
19 other person who may be liable under section 701 may not avoid
20 that liability by means of a conveyance of a right, title or
21 interest in real property, or by an indemnification, a hold
22 harmless agreement, or a similar agreement.
23 (b) Construction.--Nothing in this section shall be
24 construed to do any of the following:
25 (1) Prohibit a party who may be liable under section 701
26 from entering into an agreement by which that party is
27 insured, held harmless or indemnified for part or all of that
28 liability.
29 (2) Prohibit the enforcement of an insurance, a hold
30 harmless or an indemnification agreement.
19870H1852B3428 - 52 -
1 (3) Bar a cause of action brought by a party who may be
2 liable under section 701 or by an insurer or guarantor,
3 whether by right of subrogation or otherwise.
4 Section 705. Contribution.
5 (a) General rule.--A person may seek contribution from a
6 responsible person under section 701, during or following a
7 civil action under sections 507 or 1101. Claims for contribution
8 shall be brought in accordance with this section and the
9 Pennsylvania Rules of Civil Procedure. Nothing in this section
10 shall diminish the right of a person to bring an action for
11 contribution in the absence of a civil action under sections 507
12 or 1101. A liable party's right to contribution shall be limited
13 to the excess of consideration paid to the department over that
14 party's allocated share of liability as determined under this
15 section.
16 (b) Allocation.--In a civil action in which a liable party
17 seeks a contribution claim, the court, or the board in an action
18 brought under section 507 or 1101, shall enter judgment
19 allocating liability among the liable parties. Allocation shall
20 not affect the parties' liability to the department. The burden
21 is on each party to show how liability should be allocated. In
22 determining allocation under this section, the court or the
23 board may use such equitable factors as it deems appropriate.
24 The trier of fact shall consider the following factors:
25 (1) The extent to which each party's contribution to the
26 release of a hazardous substance can be distinguished.
27 (2) The amount of hazardous substance involved.
28 (3) The degree of toxicity of the hazardous substance
29 involved.
30 (4) The degree of involvement of and care exercised by
19870H1852B3428 - 53 -
1 each party in manufacturing, treating, transporting, and
2 disposing of the hazardous substance.
3 (5) The degree of cooperation by each party with
4 Federal, State, or local officials to prevent harm to the
5 public health or the environment.
6 (6) Knowledge by each party of the hazardous nature of
7 the substance.
8 (c) Settlements.--
9 (1) When the department enters into an administrative or
10 judicially approved settlement of a civil action brought
11 under sections 507 or 1101, the amount of the department's
12 claim under that civil action shall be reduced by the amount
13 of the consideration paid to the department or the allocated
14 amount of the settling party's liability, whichever is less.
15 A settlement shall not otherwise affect the department's
16 claim under sections 507 or 1101.
17 (2) A person who has resolved its liability to the
18 department in an administrative or judicially approved
19 settlement shall not be liable for claims for contribution
20 regarding matters addressed in the settlement unless the
21 terms of the settlement provide otherwise. The settling party
22 may seek contribution from a nonsettling party to recover the
23 consideration paid in excess of its allocated share of
24 liability as determined by the court or the board.
25 (3) When the department has obtained less than complete
26 relief from a person who has resolved its liability to the
27 department in an administrative or judicially approved
28 settlement, the department may bring an action against a
29 person who has not so resolved its liability. A nonsettling
30 party may seek contribution from any other nonsettling party
19870H1852B3428 - 54 -
1 or any settling party as allowed under this section.
2 (d) Federal funds; cooperative agreements.--The Commonwealth
3 shall actively seek to obtain Federal funds to which it is
4 entitled under the Federal Superfund Act and may take actions
5 necessary to enter into contractual or cooperative agreements
6 under section 104(c)(3) and (d)(1) of the Federal Superfund Act
7 (42 U.S.C. § 9604(c)(3) and (d)(a)).
8 SECTION 706. DE MINIMIS SETTLEMENTS. <--
9 (A) AUTHORIZATION.--THE DEPARTMENT MAY ENTER INTO A DE
10 MINIMIS SETTLEMENT WITH ANY PERSON OR GROUP OF PERSONS WHO HAVE
11 DEMONSTRATED TO THE DEPARTMENT'S SATISFACTION THAT THE FOLLOWING
12 CONDITIONS HAVE BEEN MET:
13 (1) THE VOLUME OF HAZARDOUS SUBSTANCES CONTRIBUTED BY
14 THAT PARTY TO THE SITE IS MINIMAL IN COMPARISON TO THE VOLUME
15 OF HAZARDOUS SUBSTANCES CONTRIBUTED AT THE SITE BY ALL KNOWN
16 AND FINANCIALLY VIABLE RESPONSIBLE PERSONS.
17 (2) THE REMAINING RESPONSIBLE PERSONS HAVE SUFFICIENT
18 RESOURCES TO IMPLEMENT THE RESPONSE ACTION PROPOSED BY THE
19 DEPARTMENT EITHER ALONE OR IN COMBINATION WITH FUNDS MADE
20 AVAILABLE BY THE DEPARTMENT UNDER SECTION 902(A)(3).
21 (3) THE PERSONS SEEKING THE DE MINIMIS SETTLEMENT
22 PROVIDE AN AMOUNT WHICH IS SIGNIFICANTLY GREATER THAN THE
23 COST OF THEIR INDIVIDUAL CONTRIBUTION AS A PERCENTAGE OF THE
24 VOLUME CONTRIBUTED TO THE SITE CLEANUP.
25 (4) THE ENTRY OF A DE MINIMIS SETTLEMENT WILL EXPEDITE
26 THE IMPLEMENTATION OF THE REMEDIAL RESPONSE. A DE MINIMIS
27 SETTLEMENT MAY PROVIDE THAT THE PARTIES TO THE SETTLEMENT
28 WILL HAVE NO FURTHER RESPONSIBILITY FOR THE RELEASE WHICH IS
29 ADDRESSED BY THE PROPOSED REMEDIAL ACTION.
30 (B) DISCRETION.--THE DECISION TO ENTER INTO A DE MINIMIS
19870H1852B3428 - 55 -
1 SETTLEMENT IS WITHIN THE SOLE DISCRETION OF THE DEPARTMENT. NO
2 PERSON HAS A RIGHT TO PARTICIPATE IN A DE MINIMIS SETTLEMENT AND
3 THE DEPARTMENT'S DECISION WHETHER OR NOT TO ENTER INTO A
4 SETTLEMENT SHALL NOT BE DEEMED TO BE A FINAL ACTION SUBJECT TO
5 REVIEW UNDER TITLE 2 OF THE PENNSYLVANIA CONSOLIDATED STATUTES
6 (RELATING TO ADMINISTRATIVE LAW AND PROCEDURE) OR SECTION 1921-A
7 OF THE ACT OF APRIL 9, 1929 (P.L.177, NO.175), KNOWN AS THE
8 ADMINISTRATIVE CODE OF 1929.
9 SECTION 707. NONBINDING ALLOCATION OF LIABILITY.
10 WITHIN 120 DAYS OF THE REQUEST OF ANY RESPONSIBLE PERSON, THE
11 DEPARTMENT SHALL MAKE A NONBINDING ALLOCATION OF RESPONSIBILITY
12 AMONG THE KNOWN RESPONSIBLE PERSONS. THE REQUEST SHALL NOT
13 PROHIBIT OR DELAY ANY ACTION AUTHORIZED UNDER THIS ACT. THE
14 DEPARTMENT'S NONBINDING ALLOCATION SHALL NOT BE DEEMED TO BE A
15 FINAL ACTION SUBJECT TO REVIEW UNDER TITLE 2 OF THE PENNSYLVANIA
16 CONSOLIDATED STATUTES (RELATING TO ADMINISTRATIVE LAW AND
17 PROCEDURE) OR SECTION 1921-A OF THE ACT OF APRIL 9, 1929
18 (P.L.177, NO.175), KNOWN AS THE ADMINISTRATIVE CODE OF 1929, NOR
19 SHALL IT CONFER A RIGHT OR DUTY UPON THE DEPARTMENT OR ANY
20 PERSON.
21 SECTION 708. VOLUNTARY ACCEPTANCE OF RESPONSIBILITY.
22 A RESPONSIBLE PERSON WHO VOLUNTARILY UNDERTAKES A RESPONSE
23 ACTION APPROVED BY THE DEPARTMENT SHALL NOT BE LIABLE FOR ANY
24 FURTHER RESPONSE ACTION PROVIDED THAT:
25 (1) THE RESPONSIBLE PERSON COMPLETES THE REMEDIAL
26 RESPONSE APPROVED BY THE DEPARTMENT.
27 (2) THE RESPONSIBLE PERSON DEMONSTRATES THAT THE
28 REMEDIAL RESPONSE TAKEN IS PREVENTING ANY RELEASE OF
29 HAZARDOUS SUBSTANCES FROM THE SITE.
30 SECTION 709. MEDIATION.
19870H1852B3428 - 56 -
1 UPON THE REQUEST OF ANY RESPONSIBLE PERSON, THE DEPARTMENT
2 MAY APPOINT AN INDEPENDENT MEDIATOR RECOGNIZED BY THE AMERICAN
3 ARBITRATION ASSOCIATION TO RESOLVE ANY DISPUTE AMONG THE
4 RESPONSIBLE PERSONS. THE EXPENSES OF THE MEDIATOR SHALL BE PAID
5 BY THE PARTIES TO THE MEDIATION. ANY AGREEMENT REACHED DURING
6 THE MEDIATION SHALL BE BINDING UPON THE PARTIES TO THE
7 AGREEMENT, AND SHALL CREATE A PRESUMPTION IN FAVOR OF THE
8 PARTIES AS TO ALL MATTERS ADDRESSED BY THE AGREEMENT. THIS
9 PRESUMPTION SHALL OPERATE AGAINST ANY RESPONSIBLE PERSON WHO
10 FAILS AFTER NOTICE, TO PARTICIPATE IN THE MEDIATION. THE
11 MEDIATION SHALL NOT PROHIBIT OR DELAY ANY ACTION AUTHORIZED BY
12 THIS ACT.
13 CHAPTER 9
14 FUND
15 Section 901. Fund.
16 (a) Establishment.--The Hazardous Sites Cleanup Fund, as
17 established in section 602.3 of the act of March 4, 1971 (P.L.6,
18 No.2), known as the Tax Reform Code of 1971, shall be a special
19 fund administered by the department and shall not be subject to
20 the act of July 13, 1987 (P.L.340, No.64), entitled "An act
21 providing for the establishment, funding and operation of a
22 special restricted receipt account within the General Fund to
23 support the establishment and operation of a Statewide judicial
24 computer system; providing for annual appropriations from the
25 restricted funds; and providing for the payment of a portion of
26 all fines, fees and costs collected by the judiciary into the
27 restricted receipt account."
28 (b) Appropriation.--Money placed in the fund is appropriated
29 to the department for the purposes set forth in this section.
30 The department shall annually submit to the Governor for
19870H1852B3428 - 57 -
1 approval estimates of amounts to be expended under this act.
2 (c) Funds.--Money from the following sources shall be
3 deposited in the fund:
4 (1) Proceeds from hazardous waste transportation and
5 management fees imposed by section 903, including interest
6 and penalties.
7 (2) Money recovered by the Commonwealth under sections
8 507 and 1101.
9 (3) Interest attributable to investment of money
10 deposited in the fund.
11 (4) Money appropriated by the General Assembly for
12 implementation of this act.
13 (5) Money recovered by the Commonwealth pursuant to a
14 cost recovery action under the Federal Superfund Act.
15 (6) Money received from the Federal Government under the
16 Federal Superfund Act.
17 (7) All revenues collected pursuant to section 602.3 of
18 the Tax Reform Code of 1971.
19 (8) All fees collected under sections 903 and 904.
20 (9) Funds available from appropriations for the same and
21 similar purposes.
22 Section 902. Expenditures from fund.
23 (a) Purposes.--The department shall expend money in the fund
24 for purposes including, but not limited to:
25 (1) Preparation by the department or its agents for
26 taking response actions, which include emergency actions <--
27 RESPONSES, investigations, testing activities, contracting, <--
28 excavation, administrative costs and enforcement efforts
29 relating to the release or threatened release of hazardous
30 substances or contaminants.
19870H1852B3428 - 58 -
1 (2) Response actions taken or authorized by the
2 department, including related enforcement and compliance
3 efforts and the payment of the State share of the cost of
4 remedial actions RESPONSES which may be carried out under an <--
5 agreement or contract with the Federal Government pursuant to
6 the Federal Superfund Act.
7 (3) Participation in response activities to the extent
8 the department, in its discretion, finds necessary or
9 appropriate, to carry out the purposes of this act. The
10 department may also use the fund to promote voluntary
11 cleanups by participating in mixed funding settlements with
12 potentially responsible persons.
13 (4) Emergency actions RESPONSES, including response to <--
14 spills and other uncontrolled releases and their cleanup.
15 (5) Reimbursement to a private party for expenditures
16 made from the effective date of this act to provide
17 alternative water supplies deemed necessary by the department
18 to protect the public health from contamination resulting
19 from the release of a hazardous substance or contaminant.
20 (6) Replacement of public or private water supplies
21 deemed necessary by the department to protect the public
22 health from contamination resulting from the release of a
23 hazardous substance or contaminant.
24 (7) Rehabilitation, restoration or acquisition of
25 natural resources to remedy injuries or losses to natural
26 resources resulting from the release of a hazardous substance
27 or contaminant.
28 (8) Grants by the department to demonstrate alternatives
29 to land disposal of hazardous waste, including reduction,
30 separation, pretreatment, processing and resource recovery
19870H1852B3428 - 59 -
1 for education of persons involved in regulating and handling
2 hazardous substances.
3 (9) Intervention and environmental mediation to
4 facilitate cleanup of hazardous sites.
5 (10) State matching funds required under the Federal
6 Superfund Act for the response of a site on the National
7 Priority List established under the Federal Superfund Act.
8 (11) Studies of potential or actual human health effects
9 from the release or potential release of hazardous substances
10 at individual sites, including, but not limited to, studies
11 of potential pathways of human exposure, the size and
12 potential susceptibility of the community within the likely
13 pathways of exposure, the comparison of expected health
14 effects associated with identified hazardous substances and
15 available recommended exposure or tolerance limits for the
16 hazardous substances, the comparison of existing morbidity
17 and mortality data on diseases that may be associated with
18 the observed levels of exposure and epidemiological and
19 clinical studies.
20 (12) Grants provided to municipalities under section 510 <--
21 511.
22 (13) Reimbursement of expenses under section 505(f).
23 (b) Annual report.--Beginning October 1, 1988, and annually
24 thereafter, the secretary shall transmit to the General Assembly
25 a report concerning activities and expenditures made pursuant to
26 this chapter for the preceding State fiscal year. Included in
27 this report shall be information concerning all revenues and
28 receipts deposited into the Hazardous Site Cleanup Fund, all
29 expenditures, including, but not limited to, expenditures for
30 personnel, operating expenses, the purchase of fixed assets,
19870H1852B3428 - 60 -
1 grants and subsidies, other major objects of expenditures where
2 appropriate, and information detailing the department's efforts
3 to obtain contributions for response actions from potentially
4 responsible parties AND A LISTING OF SITES WHERE MIXED FUNDING <--
5 AS DESCRIBED IN SECTION 902(A)(3) WAS UTILIZED FOR CLEANUP. The
6 secretary shall also supply information on both authorized and
7 filled complement and information concerning program activities,
8 including, but not limited to:
9 (1) The number of response actions initiated and
10 completed, and the costs incurred, in the aggregate and for
11 each action.
12 (2) The number of public or private water supply
13 replacements, and the costs incurred.
14 (3) Expenditures for the rehabilitation, restorations or
15 acquisition of natural resources.
16 (4) Expenditures for intervention and environmental
17 mediation.
18 (5) The number of Federal Superfund sites in which the
19 Commonwealth participates in response activities, and the
20 State matching costs incurred.
21 (6) The number of health effect studies undertaken, and
22 the costs incurred.
23 (7) The number of grants provided to municipalities
24 under section 510 511, and the amounts granted. <--
25 (8) The number of reimbursements of expenses under
26 section 505(f), and the amounts reimbursed.
27 (c) Health study report.--Upon completion of health effect
28 studies performed pursuant to subsection (a)(11), copies of the
29 findings and any recommendations of such studies shall be
30 transmitted to the General Assembly and the governing bodies of
19870H1852B3428 - 61 -
1 the affected communities. Except for personal health records of
2 individuals, such studies shall be public information, and the
3 department shall provide copies to any person upon request.
4 Section 903. Hazardous waste transportation and management fees.
5 (a) Assessment.--Fees shall be assessed for the
6 transportation and management of hazardous waste in accordance
7 with this section.
8 (b) Transportation fee.--A transporter of hazardous waste
9 shall be assessed a transportation fee for hazardous waste
10 transported within this Commonwealth, whether originating in-
11 State or out-of-State. For purposes of computing the fee, each
12 shipment, requiring the use of a hazardous waste manifest, to or
13 from a hazardous waste facility, or between two hazardous waste
14 facilities, shall be considered a discrete transportation
15 activity and shall be subject to the fee.
16 (c) Management fee.--
17 (1) The operator of a hazardous waste management
18 facility shall be assessed a management fee for hazardous
19 waste stored, treated or disposed of at a facility. No
20 management fee shall be charged for hazardous wastes which
21 are reused or recycled in accordance with department
22 regulations. For purposes of this paragraph, incineration
23 shall be considered a form of treatment rather than disposal.
24 (2) A generator who disposes of hazardous waste at the
25 site at which it was generated or at a captive disposal
26 facility shall be assessed a fee for all hazardous waste
27 disposed.
28 (3) No management fee shall be assessed for hazardous
29 waste storage or treatment at the site at which it was
30 generated or at a captive facility.
19870H1852B3428 - 62 -
1 (4) No management fee shall be charged for waste stored
2 prior to recycling at a legitimate commercial recycling
3 facility.
4 (d) Rates.--The following rates shall apply unless the
5 secretary adjusts the fee schedule in accordance with subsection
6 (g):
7 (1) Transportation of hazardous waste - $3 per ton.
8 (2) Storage of hazardous waste at a commercial hazardous
9 waste management facility - $2 per ton.
10 (3) Treatment or incineration of hazardous waste at a
11 commercial hazardous waste management facility - $5 per ton.
12 (4) Disposal of hazardous waste at a commercial disposal
13 facility - $12 per ton.
14 (5) Disposal of hazardous waste on the site at which it
15 was generated or at a captive facility - $8 per ton.
16 (e) Conversion.--In the event that any hazardous waste is
17 measured in units other than tonnage, the fee shall be levied on
18 a conversion to tonnage determined by the department.
19 (f) Cumulative nature.--
20 (1) The transportation and management fees are
21 cumulative.
22 (2) When several management activities occur at the same
23 facility, the operator shall be assessed only one management
24 fee, which shall be the highest rate of the management
25 activities involved.
26 (3) However, when treatment or incineration prior to
27 disposal results in a reduction in the tonnage of waste
28 requiring disposal, the operator shall be assessed the
29 disposal management fee for the waste requiring disposal
30 after treatment or incineration and the treatment management
19870H1852B3428 - 63 -
1 fee for the rest of the waste which underwent treatment.
2 (g) Adjustments.--The secretary may, by regulation, adjust
3 the rates as appropriate in accordance with the following
4 formula:
5 (1) The fees shall be calculated and rates adjusted to
6 collect projected annual revenues of $5,000,000 plus the
7 reasonably projected administrative cost of collecting the
8 fee.
9 (2) Management fee rates shall encourage preferred
10 hazardous waste management practices by establishing four fee
11 categories with graduated fee schedule. The fee categories
12 from lowest rate per ton to highest rate per ton shall be:
13 (i) Hazardous waste stored at a hazardous waste
14 management facility.
15 (ii) Hazardous waste treated or incinerated at a
16 hazardous waste management facility.
17 (iii) Hazardous waste disposed of at a hazardous
18 waste disposal facility at the site where the waste was
19 generated or at a captive disposal facility.
20 (iv) Hazardous waste disposed of at a commercial
21 hazardous waste disposal facility.
22 (3) No fee shall be charged for hazardous wastes which
23 are recycled or reused in accordance with the department's
24 regulations.
25 (4) The department may exclude small quantity generators
26 from the fees.
27 (h) Annual disposal report.--
28 (1) By March 1, 1989, and by March 1 of each year
29 thereafter, a person who submitted for off-site disposal or
30 who disposed of on site more than 500 pounds of hazardous
19870H1852B3428 - 64 -
1 waste in this Commonwealth during the preceding calendar year
2 shall report to the department the total amount of hazardous
3 waste which that person has submitted for disposal or
4 disposed of in this Commonwealth during the preceding
5 calendar year. This subsection does not apply to a person who
6 is already providing this information to the department.
7 (2) The total amount of hazardous waste reported under
8 this subsection shall be the total weight, measured in tons,
9 of all components of the waste in the form in which the waste
10 existed at the time of submission for disposal or at the time
11 of disposal.
12 (3) A person who fails to file the report required by
13 this subsection shall be liable for a civil penalty not to
14 exceed $500 for each day the violation continues. A person
15 who knowingly fails to file the report commits a misdemeanor
16 of the third degree and shall, upon conviction, be sentenced
17 to pay a fine of not more than $25,000 or to imprisonment for
18 not more than one year, or both.
19 Section 904. Continuing cleanup costs. <--
20 (a) Levy.--Beginning in the 1991-1992 State fiscal year, the
21 secretary shall levy a fee on every ton of hazardous waste
22 generated within this Commonwealth. For the 1991-1992 State
23 fiscal year, the secretary shall develop a fee structure
24 designed to produce total revenue equal to one-half of the
25 amount collected during the 1990-1991 State fiscal year under
26 section 602.3 of the act of March 4, 1971 (P.L.6, No.2), known
27 as the Tax Reform Code of 1971. Beginning in the 1992-1993 State
28 fiscal year, the secretary shall develop a fee structure
29 designed to produce total revenue equal to 100% of the amount
30 collected during 1990-1991 State fiscal year under section 602.3
19870H1852B3428 - 65 -
1 of the Tax Reform Code of 1971. In the event that any hazardous
2 waste is measured in units other than tonnage, the fee shall be
3 levied on a conversion to tonnage determined by the department.
4 Each generator of hazardous waste shall, on or before the 20th
5 day of the month following the close of each tax period, render
6 an accounting and record of the total waste generated in that
7 period on such forms as the department may require and make full
8 payment of the fee in a manner to be prescribed by the
9 department. Moneys collected pursuant to this fee shall be
10 deposited into the Hazardous Site Cleanup Fund.
11 (b) Applicability.--The fee levied under subsection (a)
12 shall not apply to waste specifically excluded as a hazardous
13 waste under 25 Pa. Code § 75.261(c) (relating to criteria,
14 identification, and listing of hazardous waste) of the
15 department's regulations and to waste for which disposal is
16 carried on as a point source discharge pursuant to and in
17 compliance with a valid permit issued under the act of June 22,
18 1937 (P.L.1987, No.394), known as The Clean Streams Law, and
19 under section 402 of the Federal Water Pollution Control Act, as
20 amended (62 Stat. 1155, 33 U.S.C. § 402 et seq.), nor shall the
21 fee apply to hazardous wastes which are recycled or reused in
22 accordance with the department's regulation. The department may
23 also exclude small quantity generators from the fees.
24 (c) Exception.--The fee levied under subsection (a) shall
25 not apply to hazardous waste retrieved or created and which must
26 be disposed of due to the remediation of an abandoned hazardous
27 waste site.
28 Section 905. Proof of payment required.
29 It shall be unlawful for any owner or operator of a hazardous
30 waste treatment or disposal facility to accept hazardous waste
19870H1852B3428 - 66 -
1 from a generator of hazardous waste whose generation occurs
2 outside the borders of this Commonwealth, unless such generator
3 can show proof of payment of the fee levied in section 904(a).
4 The department shall by regulation determine such proof of
5 payment. Any owner or operator of a hazardous waste treatment or
6 disposal facility who accepts hazardous waste from such
7 generator without proper proof of payment commits a misdemeanor
8 of the first degree.
9 SECTION 904. CONTINGENCY SURCHARGE. <--
10 IN THE EVENT THE TOTAL AMOUNT APPROPRIATED FROM THE GENERAL
11 FUND FOR THE HAZARDOUS WASTE CONTROL PROGRAM AND FEDERAL
12 SUPERFUND PROJECTS IS LESS THAN $25,000,000, ONE OF THE
13 SURCHARGES ESTABLISHED IN PARAGRAPHS (1) AND (2), IN ADDITION TO
14 OTHER FEES CONTAINED IN THIS SECTION, SHALL BE LEVIED.
15 (1) ON ALL HAZARDOUS WASTE GENERATED IN THIS
16 COMMONWEALTH, EXCEPT HAZARDOUS WASTE COVERED BY PARAGRAPH
17 (2), A SURCHARGE FEE IN THE AMOUNT OF $7.50 PER TON SHALL BE
18 PAID TO THE FUND. IN THE EVENT THAT ANY HAZARDOUS WASTE IS
19 MEASURED BY OTHER THAN TONNAGE, THE SURCHARGE SHALL BE LEVIED
20 ON THE EQUIVALENT THEREOF AS SHALL BE DETERMINED BY THE
21 DEPARTMENT. EACH GENERATOR OF HAZARDOUS WASTE SHALL, ON OR
22 BEFORE THE 20TH DAY OF THE MONTH FOLLOWING THE CLOSE OF EACH
23 TAX PERIOD, RENDER AN ACCOUNTING AND RECORD OF THE TOTAL
24 WASTE GENERATED AND STORED OR DISPOSED OF IN THAT PERIOD ON
25 SUCH FORMS AS THE DEPARTMENT MAY REQUIRE AND MAKE FULL
26 PAYMENT OF THE SURCHARGE IN A MANNER TO BE PRESCRIBED BY THE
27 DEPARTMENT.
28 (2) ON ALL HAZARDOUS WASTE GENERATED AND TREATED, REUSED
29 OR RECYCLED IN THIS COMMONWEALTH, A SURCHARGE FEE IN THE
30 AMOUNT OF $2.50 PER TON OF WASTE GENERATED AND TREATED,
19870H1852B3428 - 67 -
1 REUSED OR RECYCLED, SHALL BE PAID TO THE FUND. IN THE EVENT
2 THAT ANY HAZARDOUS WASTE IS MEASURED BY OTHER THAN TONNAGE,
3 THE SURCHARGE SHALL BE LEVIED ON THE EQUIVALENT THEREOF AS
4 SHALL BE DETERMINED BY THE DEPARTMENT. EACH GENERATOR OF
5 HAZARDOUS WASTE SHALL, ON OR BEFORE THE 20TH DAY OF THE MONTH
6 FOLLOWING THE CLOSE OF EACH TAX PERIOD, RENDER AN ACCOUNTING
7 AND RECORD OF THE TOTAL WASTE GENERATED AND TREATED, REUSED
8 OR RECYCLED IN THAT PERIOD ON SUCH FORMS AS THE DEPARTMENT
9 MAY REQUIRE AND MAKE FULL PAYMENT OF THE SURCHARGE IN A
10 MANNER TO BE PRESCRIBED BY THE DEPARTMENT.
11 (3) TO CARRY OUT THE PURPOSES OF THIS ACT AND IN ORDER
12 TO CARRY OUT THE NATIONAL AND STATE POLICIES TO MINIMIZE LAND
13 DISPOSAL OF HAZARDOUS WASTE BY ENCOURAGING PROPERLY CONDUCTED
14 RECYCLING AND REUSE, THE SURCHARGE FEE LEVIED UNDER PARAGRAPH
15 (2) SHALL BE LEVIED ON HAZARDOUS WASTE WHICH IS RECYCLABLE
16 MATERIAL UNDER 40 CFR § 261.6 AND SUCCESSOR FEDERAL AND STATE
17 REGULATIONS AND WHICH IS SENT BY THE GENERATOR TO A VERIFIED
18 RECYCLING FACILITY FOR RECYCLING OR REUSE; AND THE SURCHARGE
19 LEVIED UNDER PARAGRAPH (2) SHALL NOT APPLY TO WASTE GENERATED
20 IN THE PROCESS OF RECYCLING RECYCLABLE MATERIALS LISTED IN 40
21 CFR § 261.6(A)(2) AND (3) AND ITS SUCCESSOR FEDERAL AND STATE
22 REGULATIONS, AND SO VERIFIED BY THE DEPARTMENT: PROVIDED,
23 THAT ANY HAZARDOUS WASTE GENERATED IN THE RECYCLING PROCESS
24 IS DISPOSED OF AT A PERMITTED DISPOSAL FACILITY. ALL
25 VERIFICATIONS REFERRED TO IN THIS PARAGRAPH SHALL BE IN
26 WRITING AND APPROVED BY THE DEPARTMENT.
27 (4) THE SURCHARGE FEE LEVIED UNDER PARAGRAPHS (1) AND
28 (2) SHALL NOT APPLY TO WASTE SPECIFICALLY EXCLUDED AS A
29 HAZARDOUS WASTE UNDER 25 PA. CODE § 75.261(C) OF THE
30 DEPARTMENT'S REGULATIONS AND TO WASTE FOR WHICH DISPOSAL IS
19870H1852B3428 - 68 -
1 CARRIED ON AS A POINT SOURCE DISCHARGE PURSUANT TO AND IN
2 COMPLIANCE WITH A VALID PERMIT ISSUED UNDER THE ACT OF JUNE
3 22, 1937 (P.L.1987, NO.394), KNOWN AS THE CLEAN STREAMS LAW,
4 AND UNDER SECTION 402 OF THE FEDERAL WATER POLLUTION CONTROL
5 ACT, AS AMENDED (86 STAT. 880).
6 (5) THE SURCHARGE FEES LEVIED UNDER PARAGRAPHS (1) AND
7 (2) SHALL NOT APPLY TO HAZARDOUS WASTE RETRIEVED OR CREATED
8 AND WHICH MUST BE DISPOSED OF DUE TO THE REMEDIATION OF AN
9 ABANDONED HAZARDOUS WASTE SITE.
10 (6) FOLLOWING EACH QUARTERLY REPORTING DATE, THE
11 SECRETARY SHALL CERTIFY THE AMOUNT DEPOSITED IN THE FUND
12 DURING THE QUARTER AND THE CUMULATIVE AMOUNT COLLECTED SINCE
13 THE START OF THE CURRENT CALENDAR YEAR. IF THE SECRETARY
14 CERTIFIES THAT THE TOTAL ANNUAL AMOUNT COLLECTED AS OF THE
15 END OF ANY QUARTER EQUALS OR EXCEEDS $25,000,000, NO
16 SURCHARGE SHALL BE COLLECTED FOR THE REMAINDER OF THE YEAR.
17 Section 906 905. Loan fund. <--
18 (a) Establishment.--There is established a separate account
19 in the State Treasury to be known as the Hazardous Sites Loan
20 Fund, which shall be a special fund administered by the Economic
21 Development Partnership.
22 (b) Purpose.--In the case of a release or threatened release
23 of hazardous substances from a site for which the department has
24 identified no more than two persons as potentially liable under
25 section 702, such persons may be eligible, upon written
26 application to the Economic Development Partnership, to receive
27 long-term, low-interest loans in an amount sufficient to fund
28 all or a portion of the response costs at the site. The Economic
29 Development Partnership shall promulgate regulations
30 establishing eligibility criteria for the loans. As part of this
19870H1852B3428 - 69 -
1 effort, the Economic Development Partnership Board shall include
2 a determination of the availability of other sources of funds at
3 reasonable rates to finance all or a portion of the response
4 action and the need for board assistance to finance the response
5 action.
6 (c) Funds.--In addition to any funds as may be appropriated
7 by the General Assembly, at least 2% of the funds raised
8 annually by the assessments imposed by section 903 shall be
9 deposited into the loan fund.
10 (d) Annual report.--Beginning October 1, 1988, and annually
11 thereafter, the Economic Development Partnership shall transmit
12 to the General Assembly a report concerning activities and
13 expenditures made pursuant to this section for the preceding
14 State fiscal year. Included in this report shall be information
15 concerning all revenues and receipts deposits into the loan fund
16 and all loans extended to eligible applicants.
17 (e) Sunset.--The loan fund shall cease to exist on June 30,
18 1992, unless it is reestablished by action of the General
19 Assembly. Any funds remaining in the loan fund on June 30, 1992,
20 shall lapse to the Hazardous Sites Cleanup Fund. Money received
21 by the Economic Development Partnership as repayment of
22 outstanding loans after June 30, 1992, shall lapse to the
23 Hazardous Sites Cleanup Fund.
24 CHAPTER 11
25 ENFORCEMENT AND REMEDIES
26 Section 1101. Public nuisances.
27 A release of a hazardous substance or a violation of any
28 provision of this act, a regulation of the department, an order
29 of the department or a response approved by the department shall
30 constitute a public nuisance. Any person allowing such a release
19870H1852B3428 - 70 -
1 or committing such a violation shall be liable for the response
2 costs caused by the release or the violation. The board and any
3 court of competent jurisdiction is hereby given jurisdiction
4 over actions to recover the response costs.
5 Section 1102. Enforcement orders.
6 (a) General rule.--The department shall issue orders to
7 persons as it deems necessary to aid in the enforcement of the
8 provisions of this act. Orders shall include but shall not be
9 limited to orders requiring response actions, studies and access
10 and orders modifying, suspending or ceasing a response action by
11 a responsible party even though the response may have been
12 initially approved by the department. An order issued under this
13 section shall take effect upon notice unless the order specifies
14 otherwise. The power of the department to issue an order under
15 this section is in addition to any other remedy which may be
16 afforded to the department under this act or any other statute.
17 (b) Types.--The department, when it deems necessary for the
18 response to a release or for the protection of public health,
19 safety or welfare or the environment, shall order, orally or in
20 writing, a person to immediately initiate, continue, suspend or
21 modify a response action; conduct investigations; or provide
22 access to property or information. The order shall be effective
23 upon issuance and may only be superseded by further department
24 action or, after an appeal has been perfected, by the board
25 after notice and hearing. The order may require whatever
26 alternative response actions are necessary for the abatement of
27 the release. Within two business days after the issuance of the
28 oral order, the department shall issue a written order reciting
29 and modifying, where appropriate, the terms and conditions
30 contained in the oral order.
19870H1852B3428 - 71 -
1 (c) Compliance.--It shall be the duty of any person to
2 proceed diligently to comply with an order issued under this
3 section. When the person fails to proceed diligently or fails to
4 comply with the order within the time specified, the person
5 shall be guilty of contempt and shall be punished by the court
6 in an appropriate manner. For this purpose, application may be
7 made by the department to the Commonwealth Court.
8 (d) Appeal.--An order issued under this section may be
9 appealed to the board under section 1921-A of the act of April
10 9, 1929 (P.L.177, No.175), known as The Administrative Code of
11 1929. An appeal to the board shall not act as a supersedeas.
12 Section 1103. Restraining violations.
13 (a) Department.--In addition to any other remedy provided in
14 this act, the department may institute a suit in equity in the
15 name of the Commonwealth, where a violation of law or nuisance
16 exists, for an injunction to restrain a violation of this act or
17 the regulations, standards or orders promulgated or issued
18 hereunder and to restrain the maintenance or threat of a public
19 nuisance. In a proceeding under this subsection, the court
20 shall, upon motion of the Commonwealth, issue a prohibitory or
21 mandatory preliminary injunction when it finds that the
22 defendant is engaging in unlawful conduct as defined by this act
23 or is engaged in conduct which is causing immediate and
24 irreparable harm to the public. The Commonwealth shall not be
25 required to furnish bond or other security in connection with
26 the proceedings. In addition to an injunction, the court may
27 levy civil penalties under section 1104.
28 (b) Local government.--In addition to any other remedies
29 provided for in this act, upon relation of a district attorney
30 of an affected county or upon relation of the solicitor of an
19870H1852B3428 - 72 -
1 affected municipality, an action in equity may be brought in a
2 court of competent jurisdiction for an injunction to restrain
3 any and all violations of this act or regulations promulgated
4 under it or to restrain a public nuisance or detriment to public
5 health, safety or welfare or the environment.
6 (c) Concurrent remedies.--The penalties and remedies
7 prescribed by this act shall be deemed concurrent. The existence
8 of or exercise of one remedy shall not prevent the department
9 from exercising any other remedy under this act, at law or in
10 equity.
11 (d) Jurisdiction.--Actions instituted under this section may
12 be filed in the appropriate court of common pleas or in the
13 Commonwealth Court. Actions may also be filed in a Federal Court
14 or administrative tribunal having jurisdiction over the matter.
15 Section 1104. Civil penalties.
16 (a) General rule.--In addition to proceeding with any other
17 remedy available at law or in equity for a violation of a
18 provision of this act, a regulation or order of the department
19 or a term or condition of a response approved by the department,
20 the department may assess a civil penalty upon a person for the
21 violation. A penalty may be assessed whether or not the
22 violation was willful or negligent. In determining the amount of
23 the penalty, the department shall consider the willfulness of
24 the violation; damage to air, water, land or other natural
25 resources of this Commonwealth or their uses; cost of
26 restoration and abatement; savings resulting to the person in
27 consequence of such violation; and other relevant factors.
28 (b) Procedure.--When the department proposes to assess a
29 civil penalty, it shall inform the person of the proposed amount
30 of the penalty. The person charged with the penalty shall then
19870H1852B3428 - 73 -
1 have 30 days to pay the proposed penalty in full. When the
2 person wishes to contest either the amount of the penalty or the
3 fact of the violation, the person must, within the 30-day
4 period, file an appeal of the action with the board. Failure to
5 appeal within 30 days shall result in a waiver of all legal
6 rights to contest the violation or the amount of the penalty.
7 (c) Amount.--The maximum civil penalty which may be assessed
8 under this section is $25,000 per offense. Each violation for
9 each separate day and each violation of a provision of this act,
10 a regulation under this act, an order of the department or any
11 term or condition of an approved response shall constitute a
12 separate and distinct offense under this section.
13 (d) Minimum.--A person who fails to comply with an order
14 issued under section 503 shall be subject to a minimum penalty
15 of $5,000 for each day the order is violated.
16 (e) Additional penalties.--The Environmental Quality Board
17 shall have the authority to establish, by regulation, specific
18 major violations and additional mandatory minimum civil
19 penalties.
20 Section 1105. Criminal penalties.
21 (a) Falsity.--
22 (1) A person may not knowingly make a false statement or
23 representation in an application, record, report, plan,
24 proposal or other document which:
25 (i) relates to the actual or threatened release of a
26 hazardous substance or to a response to the actual or
27 threatened release of a hazardous substance; or
28 (ii) is filed, submitted, maintained or used for
29 purposes of compliance with this act.
30 (2) A person who violates paragraph (1) commits a
19870H1852B3428 - 74 -
1 misdemeanor of the third degree and shall, upon conviction,
2 be sentenced to pay a fine of not less that $1,000 and not
3 more than $25,000 per day for each violation or to
4 imprisonment for a period of not more than one year, or both.
5 (b) Altering response action.--A person who, without written
6 authorization from the department, alters or modifies a response
7 action approved or undertaken by the department commits a
8 summary offense and shall, upon conviction, be sentenced to pay
9 a fine of not less than $100 and not more than $1,000 for each
10 day on which the offense occurs or, in default of payment of the
11 fine, to imprisonment for not more than 90 days.
12 (c) Obstruction.--A person who refuses, hinders, obstructs,
13 delays or threatens any agent or employee of the department in
14 the course of performance of a duty under this act, including
15 but not limited to entry and inspection under any circumstances,
16 commits a summary offense and shall, upon conviction, be
17 sentenced to pay a fine of not less than $100 and not more than
18 $1,000 for each day on which the offense occurs or, in default
19 of payment of the fine, to undergo imprisonment for not more
20 than 90 days.
21 (d) Intentional or negligent.--A person who intentionally or
22 negligently commits an offense under subsection (b) or (c)
23 commits a misdemeanor of the third degree and shall, upon
24 conviction, be sentenced to pay a fine of not less than $1,000
25 and not more than $25,000 for each day on which the offense
26 occurred or to undergo imprisonment for not more than one year,
27 or both.
28 Section 1106. Search warrants.
29 An employee of the department may apply for a search warrant <--
30 to a Commonwealth official authorized to issue a search warrant
19870H1852B3428 - 75 -
1 for the purposes of inspecting or examining any property,
2 building, premise, place, book, record or other physical
3 evidence relating to the release or threatened release of a
4 hazardous substance and for the purpose of conducting tests or
5 of taking samples of any hazardous substance. The warrant shall
6 be issued upon probable cause. It shall be sufficient probable
7 cause to show any of the following:
8 (1) The inspection, examination, test or sampling is
9 pursuant to a general administrative plan to determine
10 compliance with this act.
11 (2) The employee has reason to believe that a violation
12 of this act has occurred or may occur.
13 (3) The employee has been refused access to the
14 property, building, premise, place, book, record or physical
15 evidence or has been prevented from conducting tests or
16 taking samples.
17 AN AGENT OR EMPLOYEE OF THE DEPARTMENT MAY APPLY TO ANY <--
18 COMMONWEALTH OFFICIAL AUTHORIZED TO ISSUE A SEARCH WARRANT FOR
19 THE PURPOSES OF SEARCHING ANY PROPERTY, BUILDING, PREMISE, OR
20 PLACE, OF SEIZING ANY BOOK, RECORD OR OTHER PHYSICAL EVIDENCE,
21 OF CONDUCTING TESTS, OR OF TAKING SAMPLES OF ANY SOLID WASTE.
22 SUCH WARRANT SHALL BE ISSUED UPON PROBABLE CAUSE. IT SHALL BE
23 SUFFICIENT PROBABLE CAUSE TO SHOW ANY OF THE FOLLOWING:
24 (1) THE SEARCH, SEIZURE, TEST OR SAMPLING IS PURSUANT TO
25 A GENERAL ADMINISTRATIVE PLAN TO DETERMINE COMPLIANCE WITH
26 THIS ACT.
27 (2) THE AGENT OR EMPLOYEE HAS REASON TO BELIEVE THAT A
28 VIOLATION OF THIS ACT HAS OCCURRED OR MAY OCCUR.
29 (3) THE AGENT OR EMPLOYEE HAS BEEN REFUSED ACCESS TO THE
30 PROPERTY, BUILDING, PREMISES OR PLACE, HAS BEEN REFUSED
19870H1852B3428 - 76 -
1 POSSESSION OF ANY BOOK, RECORD OR PHYSICAL EVIDENCE, OR HAS
2 BEEN PREVENTED FROM CONDUCTING TESTS OR TAKING SAMPLES.
3 (4) The employee has reason to believe that a release or
4 a threat of a release of a hazardous substance or contaminant
5 exists on the property or on a nearby property and that
6 testing and sampling are needed for determining the nature or
7 extent of the release.
8 (5) The employee has reason to believe that there are
9 containers or impoundments on the property which are typical
10 of those used for containing or impounding hazardous
11 substances and that testing, sampling or the review of
12 records is necessary to determine whether hazardous
13 substances are present.
14 Section 1107. Existing and cumulative rights and remedies.
15 Nothing in this act shall be construed as estopping the
16 Commonwealth, a district attorney or solicitor or a municipality
17 from proceeding in courts of law or equity to abate releases
18 forbidden under this act, or to abate nuisances under existing
19 law. It is declared to be the purpose of this act to provide
20 additional and cumulative remedies to control the release of
21 hazardous substances within this Commonwealth. Nothing contained
22 in this act shall abridge or alter rights of action or remedies
23 in law or equity. No provision of this act, the granting of
24 approval under this act, nor an act done by virtue of this act
25 shall be construed as estopping the Commonwealth, persons or
26 municipalities in the exercise of their rights in law or in
27 equity; from proceeding in courts of law or equity to suppress
28 nuisances or to abate a pollution; or from enforcing common law
29 or statutory rights. No courts of this Commonwealth having
30 jurisdiction to abate public or private nuisances shall be
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1 deprived of jurisdiction in an action to abate any private or
2 public nuisance because the nuisance constitutes pollution of
3 air or water or soil.
4 Section 1108. Unlawful conduct.
5 It shall be unlawful for a person to do any of the following:
6 (1) Cause or allow a release of a hazardous substance.
7 (2) Alter or modify any response action which has been
8 approved by the department unless authorized in writing by
9 the department.
10 (3) Refuse, hinder, obstruct, delay or threaten an agent
11 or employee of the department in the course of performance of
12 a duty under this act, including, but not limited to, entry
13 and inspection under any circumstances.
14 (4) Cause or assist in the violation of any provision of
15 this act, a regulation of the department or an order of the
16 department.
17 (5) Fail to make a timely payment of the hazardous waste
18 transportation and management fee.
19 (6) Hinder, obstruct, prevent or interfere with host
20 municipalities or their personnel in the performance of any
21 duty related to the collection of the hazardous waste
22 transportation and management fees.
23 (7) Cause or allow release of a contaminant in a manner
24 that creates a public nuisance.
25 Section 1109. Presumption of law for civil and administrative
26 proceedings.
27 It shall be presumed as a rebuttable presumption of law that
28 a person who causes or allows the release of a hazardous
29 substance shall be liable, without proof of fault, negligence,
30 or causation, for all damages, contamination or pollution within
19870H1852B3428 - 78 -
1 2,500 feet of the perimeter of the area where the release has
2 occurred. This presumption may be overcome by clear and
3 convincing evidence that the person so charged did not
4 contribute to the damage, contamination or pollution.
5 Section 1110. Collection of fines and penalties.
6 Fines and penalties under this act shall be collectible in
7 the manner provided by section 510. Upon collection they shall
8 be paid into the fund.
9 Section 1111. Right of citizen to intervene in proceedings.
10 A citizen of this Commonwealth having an interest which is or
11 may be adversely affected shall have the right, on his own
12 behalf, without posting bond, to intervene in any proceeding
13 brought under this act.
14 Section 1112. Whistleblower provisions.
15 (a) Adverse action prohibited.--No employer may discharge,
16 threaten or otherwise discriminate or retaliate against an
17 employee regarding the employee's compensation or terms,
18 conditions, location or privileges of employment because the
19 employee makes or is about to make a good faith report, verbally
20 or in writing, to the employer or appropriate authority an
21 instance of wrong doing under this act.
22 (b) Remedies.--The remedies, penalties and enforcement
23 procedures for violations of this section shall be as provided
24 in the act of December 12, 1986 (P.L.1559, No.169), known as the
25 Whistleblower Law.
26 (c) Definitions.--As used in this section, the following
27 words and phrases shall have the meanings given to them in this
28 subsection:
29 "Appropriate authority." A Federal, State or local
30 government body, agency or organization having jurisdiction over
19870H1852B3428 - 79 -
1 criminal law enforcement, regulatory violations, professional
2 conduct or ethics, or waste; or a member, officer, agent,
3 representative or supervisory employee of the body, agency or
4 organization. The term includes, but is not limited to, the
5 office of Attorney General, the Department of the Auditor
6 General, the Treasury Department, the General Assembly and
7 committees of the General Assembly having the power and duty to
8 investigate criminal law enforcement, regulatory violations,
9 professional conduct or ethics or waste.
10 "Employee." A person who performs a service for wages or
11 other renumeration under a contract of hire, written or oral,
12 express or implied, for an employer, whether or not the employer
13 is a public body.
14 "Employer." A person supervising one or more employees,
15 including the employee in question; a superior of that
16 supervisor; or an agent of a public body.
17 "Good faith report." A report of conduct defined in this act
18 as wrongdoing or waste which is made without malice or
19 consideration of personal benefit and which the person making
20 the report has reasonable cause to believe is true.
21 "Public body." All of the following:
22 (1) A State officer, agency, department, division,
23 bureau, board, commission, council, authority or other body
24 in the executive branch of State government.
25 (2) A county, city, township, regional governing body,
26 council, school district, special district or municipal
27 corporation, or a board, department, commission, council or
28 agency.
29 (3) Any other body which is created by Commonwealth or
30 political subdivision authority or which is funded in any
19870H1852B3428 - 80 -
1 amount by or through Commonwealth or political subdivision
2 authority or a member or employee of that body.
3 "Waste." An employer's conduct or omissions which result in
4 substantial abuse, misuse, destruction or loss of funds or
5 resources belonging to or derived from Commonwealth or political
6 subdivision sources.
7 "Whistleblower." A person who witnesses or has evidence of
8 wrongdoing or waste while employed and who makes a good faith
9 report of the wrongdoing or waste, verbally or in writing, to
10 one of the person's superiors, to an agent of the employer or to
11 an appropriate authority.
12 "Wrongdoing." A violation which is not of a merely technical
13 or minimal nature of a Federal or State statute or regulation,
14 of a political subdivision, ordinance or regulation or of a code
15 of conduct or ethics designed to protect the interest of the
16 public or the employer.
17 Section 1113. Notice of proposed settlement.
18 When a settlement is proposed in any proceeding brought under
19 this act, notice of the proposed settlement shall be sent to all
20 known responsible persons and published in the Pennsylvania
21 Bulletin and in a newspaper of general circulation in the area
22 of the release. The notice shall include the terms of the
23 settlement and the manner of submitting written comments during
24 a 60-day public comment period. The settlement shall become
25 final upon the filing of the department's response to the
26 significant written comments. The notice, the written comments
27 and the department's response shall constitute the written
28 record upon which the settlement will be reviewed. A person
29 adversely affected by the settlement may file an appeal to the
30 board. The settlement shall be upheld unless it is found to be
19870H1852B3428 - 81 -
1 arbitrary and capricious on the basis of the administrative
2 record.
3 Section 1114. Limitation on action.
4 Notwithstanding the provisions of any other statute to the
5 contrary, actions for civil or criminal penalties under this act
6 OR CIVIL ACTIONS FOR RELEASES OF HAZARDOUS SUBSTANCES may be <--
7 commenced at any time within a period of 20 years from the date
8 the unlawful conduct or release is discovered. Actions to
9 recover response costs may be commenced within six years of the
10 date those costs are incurred. The initial action to recover
11 response costs shall be controlling as to liability in all
12 subsequent actions.
13 Section 1115. Citizen suits.
14 (a) General rule.--A person who has experienced or is
15 threatened with personal injury or property damage as a result
16 of a release of a hazardous substance may file a civil action
17 against any person to prevent or abate a violation of this act
18 or of any order, regulation, standard or approval issued under
19 this act.
20 (b) Jurisdiction.--The courts of common pleas shall have
21 jurisdiction over any actions authorized under this section. No
22 action may be commenced under this section prior to 60 days
23 after the plaintiff has given notice to the department, to the
24 host municipality and to the alleged violator of this act, or of
25 any regulations or orders of the department under this act; nor
26 may such action be commenced when the department has commenced
27 and is diligently prosecuting a civil or criminal action in a
28 court of the United States or a state to require compliance with
29 the statute, permit, standard, regulation, condition,
30 requirement, prohibition or order. In any such civil action
19870H1852B3428 - 82 -
1 commenced by the department, any person may intervene as a
2 plaintiff as a matter of right. The court may grant any
3 equitable relief; may impose a civil penalty under section 1104;
4 and may award litigation costs, including reasonable attorney
5 and witness fees, to the prevailing or substantially prevailing
6 party whenever the court determines such an award is
7 appropriate.
8 (c) Departmental intervention.--The department may intervene
9 as a matter of right in any action authorized under this
10 section.
11 CHAPTER 13
12 MISCELLANEOUS
13 SECTION 1301. STUDIES. <--
14 THE DEPARTMENT OF COMMERCE SHALL WITHIN ONE YEAR OF THE
15 EFFECTIVE DATE OF THE ACT COMPLETE A STUDY TO INVESTIGATE THE
16 USE OF THE PENNSYLVANIA INDUSTRIAL DEVELOPMENT AUTHORITY, THE
17 PENNSYLVANIA ECONOMIC REVITALIZATION FUND AND OTHER ECONOMIC
18 DEVELOPMENT GRANTS AND LOANS TO ENCOURAGE THE REUSE, RECYCLING,
19 RECOVERY, MINIMIZATION AND TREATMENT WHICH RESULTS IN
20 DETOXIFICATION OF HAZARDOUS WASTE.
21 SECTION 1302. REPEALS.
22 AS MUCH OF SUBSECTION (A) AS READS: "....THROUGH CALENDAR
23 YEAR 1991 AND FISCAL YEARS BEGINNING IN 1991, AND AT THE RATE OF
24 NINE MILLS UPON EACH DOLLAR OF THE CAPITAL STOCK VALUE AS
25 DEFINED IN SECTION 601(A) FOR THE CALENDAR YEAR 1992 AND FISCAL
26 YEARS BEGINNING IN 1992...." (2 OCCASIONS) AND AS MUCH OF
27 SUBSECTIONS (B)(1) AND (E) AS READS: "....THROUGH CALENDAR YEAR
28 1991 AND FISCAL YEARS BEGINNING IN 1991, AND AT THE RATE OF NINE
29 MILLS FOR CALENDAR YEAR 1992 AND FISCAL YEARS BEGINNING IN
30 1992...." OF SECTION 602 OF THE ACT OF MARCH 4, 1971 (P.L.6,
19870H1852B3428 - 83 -
1 NO.2), KNOWN AS THE TAX REFORM CODE OF 1971, ARE REPEALED.
2 Section 1301 1303. Effective date. <--
3 This act shall take effect in 60 days.
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