SENATE AMENDED
PRIOR PRINTER'S NOS. 2321, 3341, 3428, PRINTER'S NO. 3585
3558
No. 1852 Session of 1987
INTRODUCED BY GEORGE, MANDERINO, FREEMAN, ARGALL, JAROLIN,
BOWLEY, LUCYK, WOZNIAK, FEE, LEVDANSKY, DOMBROWSKI, COLE,
KUKOVICH, COWELL, HAYDEN, HALUSKA, MORRIS, SHOWERS, McCALL,
PETRARCA, PRESSMANN, MURPHY, ARTY, LIVENGOOD, MRKONIC, ITKIN,
TRELLO, TIGUE, KOSINSKI, BELARDI, RYBAK, VAN HORNE, BATTISTO,
McHALE AND BROUJOS, OCTOBER 14, 1987
SENATOR TILGHMAN, APPROPRIATIONS, IN SENATE, RE-REPORTED AS
AMENDED, JUNE 29, 1988
AN ACT
1 Providing for the cleanup of hazardous waste sites; providing
2 further powers and duties of the Department of Environmental
3 Resources and the Environmental Quality Board; providing for
4 response and investigations for liability and cost recovery;
5 establishing the Hazardous Sites Cleanup Fund; PROVIDING A <--
6 TAX CREDIT; providing for certain fees and for enforcement,
7 remedies and penalties; making an appropriation; and
8 repealing certain provisions relating to the rate of the
9 capital stock franchise tax.
10 TABLE OF CONTENTS
11 Chapter 1. Preliminary Provisions
12 Section 101. Short title.
13 Section 102. Declaration of policy.
14 Section 103. Definitions.
15 Section 104. Construction.
16 Chapter 3. Powers and Duties
17 Section 301. Powers and duties of department.
18 Section 302. Special science and technology resources.
1 Section 303. Powers and duties of Environmental Quality Board.
2 SECTION 304. HOST MUNICIPALITY INCENTIVES AND GUARANTEES. <--
3 SECTION 305. HAZARDOUS WASTE FACILITY SITING COMMISSION.
4 SECTION 306. POWERS AND DUTIES OF COMMISSION.
5 Chapter 5. Response and Investigation
6 Section 501. Response authorities.
7 Section 502. Priorities.
8 Section 503. Information gathering and access.
9 Section 504. Cleanup standards.
10 Section 505. Development and implementation of response
11 actions.
12 Section 506. Administrative record.
13 Section 507. Recovery of response costs.
14 Section 508. Administrative and judicial review of response
15 actions.
16 Section 509. Private cause of action. <--
17 Section 510. Superlien.
18 SECTION 509. LIEN. <--
19 Section 511 510. Evaluation grant. <--
20 Section 512 511. Acquisition of real property. <--
21 Section 513 512. After closure and conveyance of property. <--
22 Section 514 513. Contracting. <--
23 Chapter 7. Liability and Cost Recovery
24 Section 701. Responsible person.
25 Section 702. Scope of liability.
26 Section 703. Defenses to liability.
27 Section 704. Subrogation and insurance.
28 Section 705. Contribution.
29 Section 706. De minimis settlements.
30 Section 707. Nonbinding allocation of liability.
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1 Section 708. Voluntary acceptance of responsibility.
2 Section 709. Mediation.
3 Chapter 9. Fund
4 Section 901. Fund.
5 Section 902. Expenditures from fund.
6 Section 903. Hazardous waste transportation and management
7 fees.
8 Section 904. Contingency surcharge. <--
9 Section 905 904. Loan fund. <--
10 SECTION 905. RECYCLING EQUIPMENT TAX CREDIT. <--
11 Chapter 11. Enforcement and Remedies
12 Section 1101. Public nuisances.
13 Section 1102. Enforcement orders.
14 Section 1103. Restraining violations.
15 Section 1104. Civil penalties.
16 Section 1105. Criminal penalties.
17 Section 1106. Search warrants.
18 Section 1107. Existing and cumulative rights and remedies.
19 Section 1108. Unlawful conduct.
20 Section 1109. Presumption of law for civil and administrative
21 proceedings.
22 Section 1110. Collection of fines and penalties.
23 Section 1111. Right of citizen to intervene in proceedings.
24 Section 1112. Whistleblower provisions.
25 Section 1113. Notice of proposed settlement.
26 Section 1114. Limitation on action.
27 Section 1115. Citizen suits.
28 Chapter 13. Miscellaneous
29 Section 1301. Studies.
30 Section 1302. Repeals. <--
19870H1852B3585 - 3 -
1 Section 1303 1302. Effective date. <--
2 The General Assembly of the Commonwealth of Pennsylvania
3 hereby enacts as follows:
4 CHAPTER 1
5 PRELIMINARY PROVISIONS
6 Section 101. Short title.
7 This act shall be known and may be cited as the Hazardous
8 Sites Cleanup Act.
9 Section 102. Declaration of policy.
10 The General Assembly finds and declares as follows:
11 (1) The citizens of this Commonwealth have a right to
12 clean water and a healthy environment, and the General
13 Assembly has a responsibility to insure the protection of
14 that right.
15 (2) Hazardous substances which have been released into
16 the environment through improper disposal or other means pose
17 a real and substantial threat to the public health and
18 welfare of the residents of this Commonwealth and to the
19 natural resources upon which they rely.
20 (3) The cleanup of sites that are releasing or
21 threatening the release of hazardous substances into the
22 environment and the replacement of contaminated water
23 supplies protects the public health, preserves and restores
24 natural resources and is vital to the economic development of
25 this Commonwealth.
26 (4) When releases of hazardous substances contaminate
27 public water supplies, the replacement of those water
28 supplies is frequently beyond the resources of the people
29 affected.
30 (5) Traditional legal remedies have not proved adequate
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1 for preventing the release of hazardous substances into the
2 environment or for preventing the contamination of water
3 supplies. It is necessary, therefore, to clarify the
4 responsibility of persons who own, possess, control or
5 dispose of hazardous substances; to provide new remedies to
6 protect the citizens of this Commonwealth against the release
7 of hazardous substances; and to assure the replacement of
8 water supplies.
9 (6) Traditional methods of administrative and judicial
10 review have interfered with responses to the release of
11 hazardous substances into the environment. It is, therefore,
12 necessary to provide a special procedure which will postpone
13 both administrative and judicial review until after the
14 completion of the response action.
15 (7) The Federal Superfund Act provides numerous
16 opportunities for states to participate in the cleanup of
17 hazardous sites. It is in the interest of the citizens of
18 this Commonwealth that the Commonwealth be authorized to
19 participate in such cleanups and related activities to the
20 fullest extent.
21 (8) Many of the hazardous sites in this Commonwealth
22 which do not qualify for cleanup under the Federal Superfund
23 Act pose a substantial threat to the public health and
24 environment. Therefore, an independent site cleanup program
25 is necessary to promptly and comprehensively address the
26 problem of hazardous substance releases in this Commonwealth,
27 whether or not these sites qualify for cleanup under the
28 Federal Superfund Act.
29 (9) Extraordinary enforcement remedies and procedures
30 are necessary and appropriate to encourage responsible
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1 persons to cleanup hazardous sites and to deter persons in
2 possession of hazardous substances from careless or haphazard
3 management.
4 (10) Persons engaged in the transportation and
5 management of hazardous waste should contribute to the fund
6 through a hazardous waste management fee that is designed to
7 encourage and reward sound waste management practices such as
8 source reduction, recycling and on-site treatment.
9 (11) It is the intent of the General Assembly that the
10 department shall undertake such measures and steps as are
11 necessary to expedite the siting, review, permitting and
12 development of hazardous waste treatment and disposal
13 facilities within this Commonwealth, in order to protect
14 public health and safety, foster economic growth and protect
15 the environment.
16 (12) The following are the purposes of this act:
17 (i) Authorize the department to participate in the
18 investigation, assessment and cleanup of sites under the
19 Federal Superfund Act to the full extent provided by that
20 act.
21 (ii) Establish independent authority for the
22 department to conduct site investigations and
23 assessments; to provide for the cleanup of sites in this
24 Commonwealth that are releasing or threatening the
25 release of hazardous substances or contaminants into the
26 environment; to require the replacement of water supplies
27 contaminated by these substances; to take other
28 appropriate response actions and recover from responsible
29 persons its costs for conducting the responses.
30 (iii) Establish the fund to provide to the
19870H1852B3585 - 6 -
1 department the financial resources needed to plan and
2 implement a timely and effective response to the release
3 of hazardous substances and contaminants, including
4 emergency response actions, studies and investigations,
5 planning, remedial response, maintenance and monitoring
6 activities, replacement of water supplies and protection
7 of the public from the hazardous site.
8 (iv) Establish hazardous waste transportation and
9 management fees to encourage preferred hazardous waste
10 management practices and implement the hazardous waste
11 management hierarchy described in the hazardous waste
12 facilities plan and to generate revenues for the fund.
13 (v) Establish and maintain a cooperative State and
14 Federal program for the investigation and cleanup of
15 sites containing hazardous substances or contaminants and
16 for the replacement of affected water supplies and to
17 take other appropriate response actions.
18 (vi) Protect the public health, safety and welfare
19 and the natural resources of this Commonwealth from the
20 short-term and long-term effects of the release of
21 hazardous substances and contaminants into the
22 environment.
23 (vii) Provide a flexible and effective means to
24 implement and enforce the provisions of this act.
25 (viii) Encourage the siting of new hazardous waste
26 management facilities to properly store, treat and
27 dispose of hazardous materials.
28 (ix) Encourage responsible persons to voluntarily
29 perform response activities by enabling the department to
30 enter into settlement agreements with responsible persons
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1 to perform response activities that protect human health
2 and the environment; by enabling the department to enter
3 into settlement agreements with responsible persons to
4 settle a minor portion of response costs; and by
5 authorizing the department to utilize moneys from the
6 fund established by this act to enter into settlement
7 agreements that allow the department, when necessary to
8 achieve a cleanup, to pay for a portion of the costs
9 associated with response activities.
10 (X) IT IS IN THE PUBLIC INTEREST TO ELIMINATE <--
11 HAZARDOUS WASTE BY ENCOURAGING AND PROVIDING INCENTIVES
12 TO TAXPAYERS TO REDUCE THE VOLUME OF HAZARDOUS WASTE
13 MATERIALS PRODUCED, TRANSPORTED AND DISPOSED OF IN THIS
14 COMMONWEALTH BY PROVIDING TAX CREDITS TO TAXPAYERS WHO
15 PURCHASE OR LEASE AND INSTALL RECYCLING EQUIPMENT WHICH
16 IS USED EXCLUSIVELY FOR THE ELIMINATION OF SUCH MATERIALS
17 BY RECLAIMING THEM ON SITE AND CONVERTING THEM INTO
18 NONHAZARDOUS REUSABLE, RAW MATERIAL PRODUCTS.
19 Section 103. Definitions.
20 The following words and phrases when used in this act shall
21 have the meanings given to them in this section unless the
22 context clearly indicates otherwise:
23 "Act of God." An unanticipated grave natural disaster or
24 other natural phenomenon of an exceptional, inevitable and
25 irresistible character the effects of which could not have been
26 prevented or avoided by the exercise of due care or foresight.
27 "Alternative water supplies." Includes but is not limited to
28 drinking water and household water supplies.
29 "Board." The Environmental Hearing Board of the
30 Commonwealth.
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1 "Captive facility." A facility which is located upon lands
2 owned by a generator of hazardous waste and which is operated to
3 provide for the treatment or disposal solely of that generator's
4 hazardous waste.
5 "Claim." A demand in writing for a sum certain.
6 "Contaminant." Includes but is not limited to a substance <--
7 whose release is regulated under a statute administered by the
8 department or an element, substance, compound or mixture,
9 including disease-causing agents, which, after release into the
10 environment, may cause either of the following:
11 (1) In humans or other organisms or their offspring,
12 death; disease; behavioral abnormalities; cancer; genetic
13 mutation; physiological malfunctions, including malfunctions
14 in reproductions; or physical deformations.
15 (2) Damage to natural resources.
16 "CONTAMINANT." AN ELEMENT, SUBSTANCE, COMPOUND OR MIXTURE <--
17 WHICH IS DEFINED AS A POLLUTANT OR CONTAMINANT PURSUANT TO THE
18 FEDERAL SUPERFUND ACT.
19 The term shall not include an element, substance, compound or
20 mixture from a coal mining operation under the jurisdiction of
21 the department or from a site eligible for funding under Title
22 IV of the Surface Mining Control and Reclamation Act of 1977
23 (Public Law 95-87, 30 U.S.C. § 1201 et seq.), nor shall the term
24 include natural gas, natural gas liquids, liquified natural gas
25 or synthetic gas usable for fuel or mixtures of natural gas and
26 synthetic gas usable for fuel, except for the purposes of an
27 emergency response, NOR SHALL THE TERM INCLUDE FLY ASH WASTE, <--
28 BOTTOM ASH WASTE, SLAG WASTE OR FLUE GAS EMISSION CONTROL WASTE
29 GENERATED PRIMARILY FROM THE COMBUSTION OF COAL OR OTHER FOSSIL
30 FUELS FOR THE PRODUCTION OF ELECTRICITY.
19870H1852B3585 - 9 -
1 "Department." The Department of Environmental Resources of
2 the Commonwealth.
3 "Disposal." The incineration, combustion, evaporation, air
4 stripping, deposition, injection, dumping, spilling, leaking,
5 mixing or placing of a hazardous substance or contaminant into
6 the air, water or land in a manner which allows it to enter the
7 environment.
8 "Drinking water supply." A raw or finished water source that
9 is or may be used by a public water system, as defined in the
10 Safe Drinking Water Act (Public Law 95-323, 21 U.S.C. § 349 and
11 42 U.S.C. §§ 201 and 300f et seq), or as drinking water by one
12 or more individuals.
13 "Environment." Surface water, groundwater, drinking water
14 supply, land surface or subsurface strata or ambient air within
15 this Commonwealth.
16 "Federal Superfund Act." The Comprehensive Environmental
17 Response Compensation and Liability Act of 1980 (Public Law 96-
18 510, 94 Stat.2767).
19 "Federal Superfund Program." The hazardous waste site
20 cleanup program provided for in the Federal Superfund Act.
21 "Fund." The Hazardous Sites Cleanup Fund established by
22 section 901.
23 "Groundwater." Water occurring in a saturated zone or
24 stratum or percolating beneath the surface of land.
25 "Hazardous substance." <--
26 (1) Any element, compound or material which can pose a
27 threat to the public health or the environment when released
28 into the environment. The term includes, but is not limited
29 to:
30 (i) A hazardous waste designated under the act of
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1 July 7, 1980 (P.L.380, No.97), known as the Solid Waste
2 Management Act.
3 (ii) A hazardous substance designated pursuant to
4 the Federal Superfund Act.
5 (iii) A hazardous material designated under the
6 Hazardous Materials Transportation Act (Public law 93-
7 633, 88 Stat.2156).
8 (iv) An object or material which is contaminated
9 with a hazardous substance.
10 (v) Other substances designated by the department as
11 detrimental to public health, safety and the environment
12 by regulations promulgated under this act.
13 "HAZARDOUS SUBSTANCE." <--
14 (1) ANY SUBSTANCE, ELEMENT, COMPOUND OR MATERIAL WHICH
15 IS:
16 (I) DESIGNATED AS A HAZARDOUS WASTE UNDER THE ACT OF
17 JULY 7, 1980 (P.L.380, NO.97), KNOWN AS THE SOLID WASTE
18 MANAGEMENT ACT.
19 (II) DEFINED OR DESIGNATED AS A HAZARDOUS SUBSTANCE
20 PURSUANT TO THE FEDERAL SUPERFUND ACT.
21 (2) The term does not include petroleum products,
22 including crude oil or any fraction thereof, which are not
23 otherwise specifically listed or designated as a hazardous
24 substance under paragraph (1) nor natural gas, natural gas
25 liquids, liquefied natural gas or synthetic gas usable for
26 fuel or mixtures of natural gas and synthetic gas usable for
27 fuel or, NOR an element, substance, compound or mixture from <--
28 a coal mining operation under the jurisdiction of the
29 department or from a site eligible for funding under Title IV
30 of the Surface Mining Control and Reclamation Act of 1977
19870H1852B3585 - 11 -
1 (Public Law 95-87, 30 U.S.C. § 1201 et seq.), NOR SHALL THE <--
2 TERM INCLUDE FLY ASH WASTE, BOTTOM ASH WASTE, SLAG WASTE OR
3 FLUE GAS EMISSION CONTROL WASTE GENERATED PRIMARILY FROM THE
4 COMBUSTION OF COAL OR OTHER FOSSIL FUELS FOR THE PRODUCTION
5 OF ELECTRICITY.
6 "Hazardous waste." Any waste defined as hazardous under the
7 act of July 7, 1980 (P.L.380, No.97), known as the Solid Waste
8 Management Act, and any regulations promulgated under that act.
9 "HAZARDOUS WASTE FACILITY." A FACILITY WHICH PROVIDES FOR <--
10 THE TREATMENT OR DISPOSAL OF HAZARDOUS WASTE.
11 "Interim response." Response which does not exceed 12 months
12 in duration or $2,000,000 in cost. An interim response may
13 exceed these limitations only where one of the following
14 applies:
15 (1) Continued response actions are immediately required
16 to prevent, limit or mitigate an emergency.
17 (2) There is an immediate risk to public health, safety,
18 welfare or the environment.
19 (3) Assistance will not otherwise be provided on a
20 timely basis.
21 (4) Continued response action is otherwise appropriate
22 and consistent with future remedial response to be taken.
23 "Natural resources." Land, fish, wildlife, biota, air,
24 water, groundwater, drinking water supplies and other resources
25 belonging to, managed by, held in trust by, appertaining to or
26 otherwise controlled by the United States, the Commonwealth or a
27 political subdivision. The term includes resources protected by
28 section 27 of Article I of the Constitution of Pennsylvania.
29 "Owner or operator." A person who owns or operates or has
30 owned or operated a site, or otherwise controlled activities at
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1 a site. The term does not include a person who, without
2 participating in the management of a site, holds indicia of
3 ownership primarily to protect a security interest in the site
4 nor a unit of State or local government which acquired ownership
5 or control involuntarily through bankruptcy, tax delinquency,
6 abandonment, or other circumstances in which the government
7 involuntarily acquires title by virtue of its function as
8 sovereign NOR A FINANCIAL INSTITUTION OR ITS AFFILIATES NOR A <--
9 CORPORATE INSTRUMENTALITY OF THE FEDERAL GOVERNMENT. This
10 exclusion does not apply to a political subdivision which has
11 caused or contributed to the release or threatened release of a
12 hazardous substance from the facility.
13 "Person." An individual, firm, corporation, association,
14 partnership, consortium, joint venture, commercial entity,
15 authority, interstate body or other legal entity which is
16 recognized by law as the subject of rights and duties. The term
17 includes the Federal Government, state governments and political
18 subdivisions.
19 "RECYCLING EQUIPMENT." MACHINERY OR APPARATUS USED <--
20 EXCLUSIVELY TO PROCESS HAZARDOUS WASTE MATERIAL AND
21 MANUFACTURING MACHINERY USED EXCLUSIVELY TO RECLAIM SUCH
22 MATERIALS INTO NONHAZARDOUS, REUSABLE, RAW-MATERIAL PRODUCTS,
23 THEREBY REDUCING THE AMOUNT OF HAZARDOUS MATERIAL PRODUCED.
24 "Release." Spilling, leaking, pumping, pouring, emitting,
25 emptying, discharging, injecting, escaping, leaching, dumping or
26 disposal into the environment. The term includes the abandonment
27 or discarding of barrels, containers, vessels and other
28 receptacles containing a hazardous substance or contaminant., <--
29 and excludes the application of fertilizer in agricultural uses
30 in accordance with proper application procedures, controls and
19870H1852B3585 - 13 -
1 loadings. THE TERM DOES NOT INCLUDE: <--
2 (1) ANY RELEASE WHICH RESULTS IN EXPOSURE TO PERSONS
3 SOLELY WITHIN A WORKPLACE, WITH RESPECT TO A CLAIM WHICH SUCH
4 PERSONS MAY ASSERT AGAINST THE EMPLOYER OF SUCH PERSONS;
5 (2) EMISSIONS FROM THE ENGINE EXHAUST OF A MOTOR
6 VEHICLE, ROLLING STOCK, AIRCRAFT, VESSEL OR PIPELINE PUMPING
7 STATION ENGINE;
8 (3) RELEASE OF SOURCE, BY-PRODUCT OR SPECIAL NUCLEAR
9 MATERIAL FROM A NUCLEAR INCIDENT, AS THOSE TERMS ARE DEFINED
10 IN THE ATOMIC ENERGY ACT OF 1954 (68 STAT. 921, 28 U.S.C. §§
11 2341(3)(A)-(C) AND 2342(1)-(4) AND 42 U.S.C. § 2201 ET SEQ.),
12 IF SUCH RELEASE IS SUBJECT TO REQUIREMENTS WITH RESPECT TO
13 FINANCIAL PROTECTION ESTABLISHED BY THE NUCLEAR REGULATORY
14 COMMISSION UNDER SECTION 170 OF THE ATOMIC ENERGY ACT OF
15 1954, OR, FOR THE PURPOSE OF SECTION 104 OF THIS ACT OR ANY
16 OTHER RESPONSE ACTION, ANY RELEASE OF SOURCE BY-PRODUCT, OR
17 SPECIAL NUCLEAR MATERIAL FROM ANY PROCESSING SITE DESIGNATED
18 UNDER SECTION 102(A)(1) OR 302(A) OF THE URANIUM MILL
19 TAILINGS RADIATION CONTROL ACT OF 1978 (PUBLIC LAW 95-604, 42
20 U.S.C. § 7901 ET SEQ.); AND
21 (4) THE NORMAL APPLICATION OF FERTILIZER.
22 "Remedial response or remedy." Any response which is not an
23 interim response.
24 "Response." Action taken in the event of a release or
25 threatened release of a hazardous substance or a contaminant
26 into the environment to study, assess, prevent, minimize or
27 eliminate the release in order to protect the present or future
28 public health, safety or welfare or the environment. The term
29 includes but is not limited to:
30 (1) Emergency response to the release of hazardous
19870H1852B3585 - 14 -
1 substances or contaminants.
2 (2) Actions at or near the location of the release, such
3 as studies; health assessments; storage; confinement;
4 perimeter protection using dikes, trenches, or ditches; clay
5 cover; neutralization; cleanup or removal of released
6 hazardous substances, contaminants or contaminated materials;
7 recycling or reuse, diversion, destruction, segregation of
8 reactive wastes; dredging or excavations; repair or
9 replacement of leaking containers; collection of leachate and
10 runoff; onsite treatment or incineration; offsite transport
11 and offsite storage; treatment, destruction, or secure
12 disposition of hazardous substances and contaminants;
13 treatment of groundwater, provision of alternative water
14 supplies, fencing or other security measures; and monitoring
15 and maintenance reasonably required to assure that these
16 actions protect the public health, safety, and welfare and
17 the environment.
18 (3) Costs of relocation of residents and businesses and
19 community facilities when the department determines that,
20 alone or in combination with other measures, relocation is
21 more cost effective than and environmentally preferable to
22 the transportation, storage, treatment, destruction or secure
23 disposition offsite of hazardous substances or contaminants
24 or may otherwise be necessary to protect the public health or
25 welfare.
26 (4) Actions taken under section 104(b) of the Federal
27 Superfund Act, (42 U.S.C. § 9604(b)) and any emergency
28 assistance which may be provided under the Disaster Relief
29 Act of 1974 (Public Law 93-288, 88 Stat.43).
30 (5) Other actions necessary to assess, prevent,
19870H1852B3585 - 15 -
1 minimize, or mitigate damage to the public health, safety or
2 welfare or the environment which may otherwise result from a
3 release or threatened release of hazardous substances or
4 contaminants.
5 (6) Investigation, enforcement, abatement of nuisances,
6 and oversight and administrative activities related to
7 interim or remedial response enforcement, abatement of
8 nuisances, and oversight and administrative activities
9 related to interim or remedial response.
10 "Responsible person." A person responsible for the release
11 or threatened release of a hazardous substance as described in
12 section 701. IN NO CASE SHALL A FINANCIAL INSTITUTION OR ITS <--
13 AFFILIATE OR A CORPORATE INSTRUMENTALITY OF THE FEDERAL
14 GOVERNMENT BE DEEMED TO BE A RESPONSIBLE PERSON OR TO BE JOINTLY
15 OR CONTINGENTLY LIABLE FOR THE ACTIONS OF A RESPONSIBLE PERSON
16 BY VIRTUE OF SUPERVISION OF, OR OTHER INVOLVEMENT WITH, THE
17 FINANCES AND OPERATIONS OF A RESPONSIBLE PERSON IN CONNECTION
18 WITH A LOAN, OBLIGATION OR OTHER SERVICE PROVIDED.
19 "Secretary." The Secretary of Environmental Resources of the
20 Commonwealth.
21 "Service station operator." A person who owns or operates a
22 motor vehicle service station, filling station, garage or
23 similar operation engaged in selling, repairing or servicing
24 motor vehicles who accepts or undertakes the collection,
25 accumulation and delivery to an oil recycling facility of
26 recycled oil that has been removed from the engine of a motor
27 vehicle or appliance and that is presented for collection,
28 accumulation and delivery to an oil recycling facility. The term
29 includes a government agency that establishes a facility solely
30 for the purpose of accepting recycled oil and owners or
19870H1852B3585 - 16 -
1 operators of refuse collection services who are compelled by law
2 to collect, accumulate and deliver recycled oil to an oil
3 recycling facility.
4 "Site." Any building; structure; installation; equipment; <--
5 pipe or pipeline, including any pipe into a sewer or publicly-
6 owned treatment works; well; pit; pond; lagoon; impoundment;
7 ditch; landfill; storage container; tank; vehicle; rolling
8 stock; aircraft; vessel; or area where a contaminant or
9 hazardous substance has been deposited, stored, treated,
10 released, disposed of, placed, or otherwise come to be located.
11 The term does not include a location where the hazardous
12 substance or contaminant is a consumer product in normal
13 consumer use or where pesticides and fertilizers are in normal
14 appropriate agricultural use.
15 "SITE." ANY BUILDING; STRUCTURE; INSTALLATION; EQUIPMENT; <--
16 PIPE OR PIPELINE, INCLUDING ANY PIPE INTO A SEWER OR PUBLICLY-
17 OWNED TREATMENT WORKS; WELL; PIT; POND; LAGOON; IMPOUNDMENT;
18 DITCH; LANDFILL; STORAGE CONTAINER; TANK; VEHICLE; ROLLING
19 STOCK; AIRCRAFT; VESSEL OR AREA WHERE A CONTAMINANT OR HAZARDOUS
20 SUBSTANCE HAS BEEN DEPOSITED, STORED, TREATED, RELEASED,
21 DISPOSED OF, PLACED OR OTHERWISE COME TO BE LOCATED. THE TERM
22 DOES NOT INCLUDE A LOCATION WHERE THE HAZARDOUS SUBSTANCE OR
23 CONTAMINANT IS A CONSUMER PRODUCT IN NORMAL CONSUMER USE OR
24 WHERE PESTICIDES AND FERTILIZERS ARE IN NORMAL APPROPRIATE
25 AGRICULTURAL USE, NOR SHALL THE TERM INCLUDE A LOCATION WHERE
26 HAZARDOUS SUBSTANCES ARE PRESENT WHEN SUCH LOCATION HAS A
27 PERMIT, INCLUDING INTERIM STATUS, UNDER THE SOLID WASTE DISPOSAL
28 ACT (PUBLIC LAW 89-272, 42 U.S.C. § 6901 ET SEQ.) OR THE ACT OF
29 JULY 7, 1980 (P.L.380, NO.97), KNOWN AS THE SOLID WASTE
30 MANAGEMENT ACT, OR, IF NOT REQUIRED TO HAVE SUCH PERMIT OR
19870H1852B3585 - 17 -
1 INTERIM STATUS, IS UNDER ACTIVE OPERATION OR MANAGEMENT BY AN
2 IDENTIFIED AND RESPONSIBLE OWNER OR OPERATOR.
3 "Transportation." The conveyance of a hazardous substance or
4 contaminant by any mode, including pipeline.
5 "Treatment." A method, technique or process, including
6 neutralization, designed to change the physical, chemical or
7 biological character or composition of a hazardous substance so
8 as to neutralize the hazardous substance or to render the
9 hazardous substance nonhazardous, safer for transport, suitable
10 for recovery, suitable for storage or reduced in volume. The
11 term includes activity or processing designed to change the
12 physical form or chemical composition of hazardous substance so
13 as to render it neutral or nonhazardous.
14 "Vessel." A watercraft or other artificial contrivance used,
15 or capable of being used, as a means of transportation on water.
16 Section 104. Construction.
17 Nothing in this act shall be construed to affect, impair or
18 repeal any provision of any other statute. No action by the
19 department under this act shall be understood or construed as
20 precluding the department from taking any action authorized by
21 this act or any other statute administered by the department.
22 CHAPTER 3
23 POWERS AND DUTIES
24 Section 301. Powers and duties of department.
25 The department has the following powers and duties:
26 (1) Develop, administer and enforce a program to provide
27 for the investigation, assessment and cleanup of hazardous
28 sites in this Commonwealth pursuant to the provisions of this
29 act and regulations adopted under this act.
30 (2) Undertake activities necessary or proper to
19870H1852B3585 - 18 -
1 cooperate with and fully participate in the Federal Superfund
2 Program, including serving as the agency of the Commonwealth
3 for the receipt of moneys from the Federal Government or
4 other public or private agencies.
5 (3) Develop, administer and enforce an independent State
6 response program for the investigation, assessment and
7 cleanup of hazardous sites and replacement of water supplies
8 and the protection of the citizens and natural resources of
9 this Commonwealth from the dangers of hazardous substances
10 and contaminants that have been released or are threatened to
11 be released into the environment.
12 (4) Cooperate with appropriate Federal, State,
13 interstate and local government agencies in carrying out its
14 duties under this act by, among other things, accepting an
15 appropriate delegation or agency relationship from such an
16 agency to facilitate the cleanup of hazardous sites in this
17 Commonwealth.
18 (5) Administer the fund and any fund for hazardous waste
19 facilities siting and expend money from the funds in
20 accordance with this act.
21 (6) Administer and expend funds appropriated to the
22 department or granted to the Commonwealth under the Federal
23 Superfund Act or other authority for the protection of the
24 public and the natural resources of this Commonwealth from
25 releases of hazardous substances or contaminants.
26 (7) Promulgate the State standards and requirements
27 applicable, relevant or appropriate for the cleanup of
28 hazardous sites under this act and the Federal Superfund Act.
29 (8) Develop a program for public participation in the
30 assessment of sites and selection of appropriate remedial
19870H1852B3585 - 19 -
1 responses.
2 (9) Issue orders to enforce provisions of this act and
3 regulations promulgated under it.
4 (10) Institute, in a court of competent jurisdiction,
5 proceedings to compel compliance with this act, regulations
6 promulgated under it or an order of the department.
7 (11) Institute prosecutions under this act.
8 (12) Appoint advisory committees as the secretary deems
9 necessary and proper to assist the department in carrying out
10 this act. The secretary is authorized to pay reasonable and
11 necessary expenses incurred by the members of advisory
12 committees in carrying out their functions.
13 (13) Acquire special scientific and technical staff
14 resources to provide specialized expertise in areas related
15 to the evaluation of sites and selection of responses to
16 advise the department regarding standards, technologies, risk
17 assessments and other matters related to the cleanup of
18 hazardous sites; the regulation of hazardous substances and
19 contaminants; and the enforcement of this act.
20 (14) Act as trustee of this Commonwealth's natural
21 resources. The department may assess and collect damages to
22 natural resources for the purposes of this act and the
23 Federal Superfund Act for those natural resources under its
24 trusteeship.
25 (15) Provide for emergency response capability for
26 spills, accidents and other releases of hazardous substances
27 and contaminants.
28 (16) Implement section 27 of Article 1 of the
29 Constitution of Pennsylvania.
30 (17) Do any and all other acts and things not
19870H1852B3585 - 20 -
1 inconsistent with any provision of this act which it may deem
2 necessary or proper for the effective enforcement of this act
3 and the regulations promulgated under it.
4 Section 302. Special science and technology resources.
5 (a) Establishment.--The department shall establish an
6 additional complement of individuals with expertise and advanced
7 degrees in specialized fields of science and technology relevant
8 to administration and enforcement of this act.
9 (b) Expertise.--The special science and technology staff
10 shall have expertise in fields relating to the identification,
11 analysis, assessment, prevention or abatement of hazards to the
12 public health or the environment resulting from the release of
13 hazardous substances or contaminants into the environment. The
14 special science and technology staff may include, without
15 limitation, individuals trained in toxicology, hydrogeology,
16 chemistry, biology, soil science, biochemistry, environmental
17 engineering, epidemiology, value engineering and risk assessment
18 sciences.
19 (c) Availability.--The special science and technology staff
20 shall be available to review consultants' contracts, reports and
21 feasibility studies; prepare and review environmental
22 assessments, serve as expert witnesses in department litigation;
23 provide scientific analysis or studies to support rulemaking
24 activities of the department; and perform other duties as
25 assigned by the secretary in furtherance of this act or other
26 environmental protection laws administered by the department.
27 (d) Civil service.--In order to obtain the most highly
28 qualified individuals for the special science and technology
29 staff, the secretary may hire the staff without regard to the
30 provisions of the act of August 5, 1941 (P.L.752, No.286), known
19870H1852B3585 - 21 -
1 as the Civil Service Act.
2 Section 303. Powers and duties of Environmental Quality Board.
3 The board, exercising its powers and duties under section
4 1920 of the act of April 9, 1929 (P.L. 177, No.175), known as
5 The Administrative Code of 1929, has the power and duty to
6 promulgate the regulations of the department to accomplish the
7 purposes and to carry out the provisions of this act, including
8 but not limited to regulations relating to the protection, from
9 the release of hazardous substances, of the safety, health,
10 welfare and property of the public and of the air, water, land
11 and other natural resources of this Commonwealth.
12 SECTION 304. HOST MUNICIPALITY INCENTIVES AND GUARANTEES. <--
13 (A) INFORMATION TO HOST MUNICIPALITY.--THE DEPARTMENT SHALL
14 PROVIDE ALL OF THE FOLLOWING INFORMATION TO THE GOVERNING BODY
15 OF A HOST MUNICIPALITY FOR A COMMERCIAL HAZARDOUS WASTE STORAGE,
16 TREATMENT OR DISPOSAL FACILITY PERMITTED BY THE DEPARTMENT UNDER
17 THIS ACT AND LOCATED WITHIN THAT MUNICIPALITY:
18 (1) COPIES OF DEPARTMENT INSPECTION REPORTS FOR THE
19 FACILITY UNDER THIS ACT, THE ACT OF JUNE 22, 1937 (P.L.1987,
20 NO.394), KNOWN AS THE CLEAN STREAMS LAW, THE ACT OF JANUARY
21 8, 1960 (1959 P.L.2119, NO.787), KNOWN AS THE AIR POLLUTION
22 CONTROL ACT, AND THE ACT OF NOVEMBER 26, 1978 (P.L.1375,
23 NO.325), KNOWN AS THE DAM SAFETY AND ENCROACHMENTS ACT,
24 WITHIN FIVE WORKING DAYS AFTER THE PREPARATION OF THE
25 REPORTS.
26 (2) PROMPT NOTIFICATION OF ALL DEPARTMENT ENFORCEMENT OR
27 EMERGENCY ACTIONS FOR FACILITIES, INCLUDING, BUT NOT LIMITED
28 TO, ABATEMENT ORDERS, CESSATION ORDERS, PROPOSED AND FINAL
29 CIVIL PENALTY ASSESSMENTS AND NOTICES OF VIOLATION.
30 (3) COPIES OF AIR AND WATER QUALITY MONITORING DATA
19870H1852B3585 - 22 -
1 COLLECTED BY THE DEPARTMENT AT FACILITIES, AFTER COMPLETE
2 LABORATORY ANALYSIS OF THE DATA BECOMES AVAILABLE TO THE
3 DEPARTMENT.
4 (B) TRAINING OF INSPECTORS.--
5 (1) THE DEPARTMENT SHALL ESTABLISH AND CONDUCT A
6 TRAINING PROGRAM TO CERTIFY HOST MUNICIPALITY INSPECTORS FOR
7 HAZARDOUS WASTE STORAGE, TREATMENT OR DISPOSAL FACILITIES. NO
8 MORE THAN TWO PERSONS FROM EACH HOST MUNICIPALITY SHALL BE
9 ELIGIBLE FOR THE PROGRAM. EACH HOST MUNICIPALITY SHALL INFORM
10 THE DEPARTMENT, IN WRITING, OF THE PERSONS IT HAS DESIGNATED
11 TO PARTICIPATE IN THE TRAINING PROGRAM. THE DEPARTMENT SHALL
12 HOLD TRAINING SESSIONS AT LEAST TWICE A YEAR. THE DEPARTMENT
13 SHALL CERTIFY HOST MUNICIPALITY INSPECTORS UPON COMPLETION OF
14 THE TRAINING PROGRAM AND SATISFACTORY PERFORMANCE IN AN
15 EXAMINATION ADMINISTERED BY THE DEPARTMENT.
16 (2) CERTIFIED MUNICIPAL INSPECTORS SHALL BE AUTHORIZED
17 TO ENTER PROPERTY, INSPECT RECORDS, TAKE SAMPLES AND CONDUCT
18 INSPECTIONS. CERTIFIED MUNICIPAL INSPECTORS MAY NOT ISSUE
19 ORDERS. UPON THE COMPLETION OF AN INSPECTION, CERTIFIED
20 MUNICIPAL INSPECTORS SHALL TRANSMIT ALL FINDINGS FROM THE
21 INSPECTION TO THE DEPARTMENT. THE DEPARTMENT SHALL NOTIFY
22 CERTIFIED MUNICIPAL INSPECTORS OF REGULAR INSPECTIONS OF
23 PERMITTED FACILITIES WITHIN THEIR JURISDICTION AND SHALL
24 PROVIDE OPPORTUNITY FOR THE INSPECTORS TO ACCOMPANY
25 DEPARTMENT INSPECTORS ON INSPECTIONS.
26 (3) THE DEPARTMENT SHALL REIMBURSE HOST MUNICIPALITIES
27 FOR 50% OF THE APPROVED COST OF EMPLOYING CERTIFIED HOST
28 MUNICIPALITY INSPECTORS FOR A PERIOD NOT TO EXCEED FIVE
29 YEARS.
30 (4) THE DEPARTMENT SHALL PROMPTLY INSPECT A FACILITY
19870H1852B3585 - 23 -
1 WHEN A HOST MUNICIPALITY PRESENTS INFORMATION TO THE
2 DEPARTMENT WHICH GIVES THE DEPARTMENT REASON TO BELIEVE THAT
3 A HAZARDOUS WASTE STORAGE, TREATMENT OR DISPOSAL FACILITY IS
4 IN VIOLATION OF ANY REQUIREMENT OF THE CLEAN STREAMS LAW, THE
5 AIR POLLUTION CONTROL ACT, THE DAM SAFETY AND ENCROACHMENTS
6 ACT, OR THIS ACT; A REGULATION PROMULGATED UNDER THESE
7 STATUTES; OR THE CONDITION OF A PERMIT ISSUED UNDER THESE
8 STATUTES.
9 (I) THE DEPARTMENT SHALL NOTIFY THE HOST MUNICIPALITY OF
10 THIS INSPECTION AND SHALL PERMIT A CERTIFIED MUNICIPAL
11 INSPECTOR FROM THE HOST MUNICIPALITY TO ACCOMPANY THE
12 DEPARTMENT INSPECTOR DURING THE INSPECTION.
13 (II) WHEN THE DEPARTMENT DETERMINES THAT THERE IS NOT
14 SUFFICIENT INFORMATION TO GIVE THE DEPARTMENT REASON TO
15 BELIEVE THAT A VIOLATION IS OCCURRING OR HAS OCCURRED, THE
16 DEPARTMENT SHALL PROVIDE A WRITTEN EXPLANATION TO THE HOST
17 MUNICIPALITY OF ITS DECISION NOT TO CONDUCT AN INSPECTION
18 WITHIN 30 DAYS OF THE REQUEST FOR INSPECTION.
19 (C) FINANCIAL ASSISTANCE FOR THE REVIEW OF PERMIT
20 APPLICATIONS.--THE DEPARTMENT SHALL REIMBURSE HOST COUNTIES FOR
21 COSTS INCURRED BY HOST MUNICIPALITIES FOR PROFESSIONAL TECHNICAL
22 REVIEW OF A PERMIT APPLICATION UNDER THIS ACT FOR A HAZARDOUS
23 WASTE TREATMENT, STORAGE OR DISPOSAL FACILITY OR FOR A PERMIT
24 MODIFICATION THAT WOULD RESULT IN ADDITIONAL CAPACITY FOR THE
25 FACILITY. THE REIMBURSEMENT SHALL NOT EXCEED $50,000 PER
26 COMPLETE APPLICATION.
27 (D) SAMPLING AND ANALYSIS OF WATER.--
28 (1) UPON WRITTEN REQUEST FROM PERSONS OWNING PROPERTY
29 WITHIN 2,500 FEET OF A HAZARDOUS WASTE STORAGE, TREATMENT OR
30 DISPOSAL FACILITY, THE OPERATOR OF THE FACILITY SHALL HAVE
19870H1852B3585 - 24 -
1 QUARTERLY SAMPLING AND ANALYSIS CONDUCTED OF PRIVATE WATER
2 SUPPLIES USED BY THOSE PERSONS FOR DRINKING WATER. SAMPLING
3 AND ANALYSIS SHALL BE CONDUCTED BY A LABORATORY CERTIFIED
4 PURSUANT TO THE ACT OF MAY 1, 1984 (P.L.206, NO.43), KNOWN AS
5 THE PENNSYLVANIA SAFE DRINKING WATER ACT. THE LABORATORY
6 SHALL BE CHOSEN BY THE LANDOWNERS FROM A LIST OF REGIONAL
7 LABORATORIES SUPPLIED BY THE DEPARTMENT. SAMPLING AND
8 ANALYSIS SHALL BE AT THE EXPENSE OF THE FACILITY OPERATOR.
9 (2) WATER SUPPLIES SHALL BE ANALYZED BY THE DEPARTMENT.
10 THE LABORATORY PERFORMING SAMPLING AND ANALYSIS SHALL PROVIDE
11 WRITTEN COPIES OF SAMPLE RESULTS TO THE LANDOWNER, THE
12 OPERATOR AND THE DEPARTMENT.
13 SECTION 305. HAZARDOUS WASTE FACILITY SITING COMMISSION.
14 (A) ESTABLISHMENT.--THERE IS HEREBY ESTABLISHED AN
15 INDEPENDENT AGENCY, KNOWN AS THE HAZARDOUS WASTE FACILITY SITING
16 COMMISSION, WHICH SHALL CONSIST OF SEVEN MEMBERS TO BE KNOWN AS
17 COMMISSIONERS. THREE MEMBERS OF THE COMMISSION SHALL BE
18 APPOINTED BY THE GOVERNOR, ONE OF WHOM SHALL BE DESIGNATED AS
19 CHAIRMAN, ONE BY THE PRESIDENT PRO TEMPORE OF THE SENATE, ONE BY
20 THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, ONE BY THE MINORITY
21 LEADER OF THE SENATE AND ONE BY THE MINORITY LEADER OF THE HOUSE
22 OF REPRESENTATIVES. THOSE PERSONS APPOINTED SHALL BE
23 KNOWLEDGEABLE IN THE FIELDS OF HAZARDOUS WASTE MANAGEMENT,
24 ENVIRONMENTAL PROTECTION, MUNICIPAL GOVERNMENT OR OTHER
25 PERTINENT FIELDS AND SHALL BE APPOINTED IN SUCH A MANNER AS TO
26 FAIRLY REPRESENT LOCAL GOVERNMENT, INDUSTRY AND PUBLIC INTEREST
27 GROUPS. NO MEMBER OF THE GENERAL ASSEMBLY OR ANY OFFICER OR
28 EMPLOYEE OF THE STATE GOVERNMENT SHALL SERVE AS A MEMBER OF THE
29 COMMISSION.
30 (B) TERMS OF MEMBERS.--EACH APPOINTMENT SHALL BE FOR A TERM
19870H1852B3585 - 25 -
1 OF THREE YEARS. ALL VACANCIES SHALL BE FILLED, FOR THE REMAINDER
2 OF THE UNEXPIRED TERM, BY THE RESPECTIVE APPOINTING AUTHORITY.
3 ANY COMMISSIONER, UPON THE EXPIRATION OF HIS TERM, SHALL
4 CONTINUE TO HOLD OFFICE UNTIL HIS SUCCESSOR SHALL BE APPOINTED.
5 NO COMMISSIONER MAY BE REMOVED FROM OFFICE DURING HIS TERM,
6 EXCEPT FOR CAUSE, BY THE RESPECTIVE APPOINTING AUTHORITY.
7 (C) COMPENSATION.--THE COMMISSIONERS SHALL RECEIVE $125 A
8 DAY AS COMPENSATION FOR THEIR SERVICES. THE COMMISSIONERS SHALL
9 BE ENTITLED TO REIMBURSEMENT FOR TRAVEL AND OTHER NECESSARY
10 EXPENSES INCURRED AS A RESULT OF THEIR DUTIES AS MEMBERS OF THE
11 COMMISSION. THE EXPENSES INCURRED BY THE COMMISSIONERS OR BY ANY
12 EMPLOYEES OF THE COMMISSION SHALL BE ALLOWED AND PAID ON THE
13 PRESENTATION OF ITEMIZED VOUCHERS THEREFOR, WHICH VOUCHERS SHALL
14 BE SUBJECT TO THE APPROVAL OF THE COMMISSION.
15 (D) MEETINGS.--THE COMMISSION SHALL MEET AS NECESSARY TO
16 CARRY OUT ITS BUSINESS, BUT NOT LESS THAN FOUR TIMES PER YEAR,
17 AT SUCH TIMES AND PLACES AS SHALL BE SET BY THE CHAIRMAN. FOR
18 PURPOSES OF CONDUCTING OFFICIAL BUSINESS, A QUORUM SHALL CONSIST
19 OF FOUR MEMBERS.
20 (E) ORGANIZATIONAL MEETING.--WITHIN TWO WEEKS FOLLOWING THE
21 APPOINTMENT OF THE COMMISSIONERS, THE CHAIRMAN SHALL CONVENE AN
22 ORGANIZATIONAL MEETING OF THE COMMISSION. WITHIN 60 DAYS, THE
23 COMMISSION SHALL APPOINT AND FIX THE COMPENSATION OF AN
24 EXECUTIVE DIRECTOR, WHO SHALL DEVOTE HIS FULL TIME TO THE
25 GENERAL SUPERVISION OF ALL THE AFFAIRS OF THE COMMISSION. IN
26 ADDITION, THE COMMISSION MAY APPOINT AND FIX THE COMPENSATION OF
27 SUCH OTHER EMPLOYEES AS THE COMMISSION MAY, FROM TIME TO TIME,
28 FIND NECESSARY FOR THE PROPER PERFORMANCE OF ITS FUNCTIONS.
29 SECTION 306. POWERS AND DUTIES OF COMMISSION.
30 (A) GENERAL RULE.--THE COMMISSION SHALL HAVE THE POWER AND
19870H1852B3585 - 26 -
1 ITS DUTIES SHALL BE TO:
2 (1) PROMULGATE SUCH REGULATIONS, NOT INCONSISTENT WITH
3 THIS ACT, AS MAY BE NECESSARY TO CARRY OUT ITS DUTIES.
4 (2) DEVELOP A COMPREHENSIVE PUBLIC EDUCATION PROGRAM TO
5 ACQUAINT THE PUBLIC WITH THE NATURE OF HAZARDOUS WASTE
6 GENERATION, MANAGEMENT AND DISPOSAL OF HOUSEHOLD HAZARDOUS
7 WASTE.
8 (3) COOPERATE WITH LOCAL GOVERNMENTS INTERESTED PERSONS <--
9 TO IDENTIFY AREAS SUITABLE FOR SITING HAZARDOUS WASTE
10 FACILITIES.
11 (4) DEVELOP, THROUGH REGULATION, CRITERIA FOR THE SITING <--
12 OF HAZARDOUS WASTE FACILITIES AND TO REVIEW AND APPROVE OR
13 DISAPPROVE SITING APPLICATIONS.
14 (4) REVIEW AND APPROVE OR DISAPPROVE APPLICATIONS FOR <--
15 HAZARDOUS WASTE FACILITY SITES BROUGHT BEFORE THE COMMISSION
16 TO DETERMINE CONFORMITY WITH DEPARTMENTAL SITING CRITERIA AS
17 FOUND IN 25 PA. CODE CH. 75, SUBCH. F (RELATING TO SITING
18 HAZARDOUS WASTE TREATMENT AND DISPOSAL FACILITIES).
19 (5) ASSIST LOCAL GOVERNMENTS IN PLANNING FOR THE SITING
20 OF HAZARDOUS WASTE FACILITIES OR IN REVIEWING SITING
21 APPLICATIONS FOR SUCH FACILITIES.
22 (6) ADMINISTER A GRANT PROGRAM TO ASSIST LOCAL
23 GOVERNMENTS IN SITE PLANNING OR REVIEW.
24 (7) ADOPT A HAZARDOUS WASTE FACILITY PLAN, TAKING INTO <--
25 CONSIDERATION SUCH HAZARDOUS WASTE FACILITIES PLANS AS MAY
26 PRESENTLY EXIST.
27 (B) SCHEDULE FOR FACILITIES.--WITHIN 90 DAYS FOLLOWING THE
28 COMMISSION'S ORGANIZATIONAL MEETING, THE COMMISSION SHALL
29 ESTABLISH A SCHEDULE THAT OUTLINES THE PROCESS FOR SITING NEW OR
30 EXPANDED HAZARDOUS WASTE DISPOSAL OR TREATMENT FACILITIES
19870H1852B3585 - 27 -
1 IDENTIFIED AS NECESSARY IN THE PENNSYLVANIA HAZARDOUS WASTE
2 FACILITIES PLAN. THE COMMISSION MAY AMEND SUCH SCHEDULE FROM
3 TIME TO TIME.
4 (C) CRITERIA.--THE COMMISSION SHALL ADOPT, BY REGULATION, <--
5 CRITERIA FOR THE SITING OF HAZARDOUS WASTE DISPOSAL OR TREATMENT
6 FACILITIES, WHICH CRITERIA SHALL SUPERSEDE ANY CRITERIA FOR THE
7 SITING OF SUCH FACILITIES HERETOFORE ESTABLISHED. IN ADOPTING
8 SUCH CRITERIA, THE COMMISSION SHALL CONSIDER:
9 (1) ANY CRITERIA WHICH MAY HAVE EXISTED HERETOFORE;
10 (2) THE PENNSYLVANIA HAZARDOUS WASTE FACILITIES PLAN;
11 (3) SECTION 27 OF ARTICLE I OF THE CONSTITUTION OF
12 PENNSYLVANIA;
13 (4) PERTINENT ECONOMIC AND ENVIRONMENTAL FACTORS; AND
14 (5) SUCH OTHER CRITERIA AS THE COMMISSION DEEMS
15 APPROPRIATE.
16 THE COMMISSION SHALL ADOPT INTERIM GUIDELINES ON THE SITING OF
17 HAZARDOUS WASTE DISPOSAL OR TREATMENT FACILITIES. THESE
18 GUIDELINES SHALL REMAIN IN EFFECT UNTIL NO LATER THAN OCTOBER
19 17, 1989, BY WHICH TIME THE COMMISSION SHALL HAVE IN EFFECT
20 REGULATIONS FOR THE SITING OF HAZARDOUS WASTE DISPOSAL OR
21 TREATMENT FACILITIES.
22 (C) CRITERIA.--THE COMMISSION SHALL ADOPT EXISTING <--
23 DEPARTMENTAL REGULATIONS AS SET FORTH IN 25 PA. CODE CH. 75,
24 SUBCH. F.
25 (D) GRANT PROGRAM.--THE COMMISSION SHALL ESTABLISH A GRANT
26 PROGRAM, FROM FUNDS APPROPRIATED BY THE GENERAL ASSEMBLY FOR
27 THAT PURPOSE, TO ASSIST INTERESTED COUNTY GOVERNMENTS IN
28 UNDERTAKING A PLANNING PROCESS DESIGNED TO IDENTIFY POTENTIAL
29 HAZARDOUS WASTE FACILITY SITES BY APPLYING THE COMMISSION'S
30 SITING CRITERIA TO LAND WITHIN THE COUNTY.
19870H1852B3585 - 28 -
1 (E) APPLICATION.--ANY PERSON INTERESTED IN ESTABLISHING A
2 HAZARDOUS WASTE DISPOSAL OR TREATMENT FACILITY SHALL SUBMIT A
3 SITING APPLICATION TO THE COMMISSION. SUCH APPLICATION MAY
4 PRECEDE OR BE SIMULTANEOUS WITH THE SUBMISSION OF A PERMIT
5 APPLICATION TO THE DEPARTMENT. THE COMMISSION SHALL ESTABLISH, <--
6 BY REGULATION, PROCEDURES FOR THE PROCESSING AND REVIEW OF SUCH
7 APPLICATIONS. SUCH PROCEDURES SHALL INCLUDE AT LEAST ONE PUBLIC
8 HEARING AT A LOCATION NEAR THE PROPOSED SITE. THE COMMISSION
9 SHALL REVIEW THE APPLICATION FOR CONFORMITY WITH ITS EXISTING <--
10 DEPARTMENTAL SITING CRITERIA AND SHALL, AFTER SUCH REVIEW AND
11 PUBLIC HEARING, APPROVE OR DENY THE SITING APPLICATION. IF THE
12 APPLICATION IS APPROVED, THE COMMISSION SHALL CERTIFY TO THE
13 DEPARTMENT THAT SUCH SITE IS CONSISTENT WITH THE COMMISSION'S <--
14 SITING CRITERIA, WHICH CERTIFICATION SHALL BE BINDING UPON THE
15 DEPARTMENT AND SHALL NOT BE SUBJECT TO FURTHER REVIEW BY THE
16 DEPARTMENT OR BY THE BOARD.. THE COMMISSION REVIEW SHALL BE <--
17 COMPLETED WITHIN 120 DAYS OF SUBMISSION OF THE APPLICATION. ANY
18 PERSON, OTHER THAN THE STATE GOVERNMENT, THAT IS AGGRIEVED BY A
19 DECISION OF THE COMMISSION MAY APPEAL TO THE COMMONWEALTH COURT
20 IN ACCORDANCE WITH LAW.
21 (F) SELECTION OF SITE BY COMMISSION.--IN THE EVENT NO SITING
22 APPLICATION IS SUBMITTED TO THE COMMISSION BY OCTOBER 17, 1989,
23 THE COMMISSION SHALL APPLY ITS SITING CRITERIA TO THE ENTIRE
24 COMMONWEALTH AND SHALL IDENTIFY POTENTIALLY SUITABLE SITES FOR
25 HAZARDOUS WASTE FACILITIES THROUGHOUT THIS COMMONWEALTH. THE
26 COMMISSION MAY AT ANY TIME SOLICIT PROPOSALS FROM INTERESTED
27 PERSONS TO DEVELOP HAZARDOUS WASTE DISPOSAL OR TREATMENT
28 FACILITIES AT SUCH SITES AS MAY BE IDENTIFIED BY THE COMMISSION.
29 IF NO SUCH PROPOSALS ARE RECEIVED, OR IF THE COMMISSION IN ITS
30 DISCRETION DETERMINES THAT SOLICITING SUCH PROPOSALS IS NOT IN
19870H1852B3585 - 29 -
1 THE PUBLIC INTEREST, THE COMMISSION MAY MAKE APPLICATION TO THE
2 DEPARTMENT, IN THE NAME OF THE COMMONWEALTH, FOR THE NECESSARY
3 PERMITS TO ESTABLISH A STATE-OWNED HAZARDOUS WASTE DISPOSAL
4 FACILITY. IN CARRYING OUT ITS DUTIES UNDER THIS SUBSECTION, THE
5 COMMISSION SHALL HAVE THE POWER OF EMINENT DOMAIN TO ACQUIRE
6 SUCH SITE OR SITES AS MAY BE NECESSARY, AND THE ESTABLISHMENT OF
7 SUCH SITES UNDER THIS SUBSECTION SHALL NOT BE SUBJECT TO ANY
8 LOCAL LAWS WHICH WOULD PRECLUDE OR PROHIBIT THE ESTABLISHMENT OF
9 SUCH SITES, INCLUDING ZONING ORDINANCES, AND ALL SUCH LAWS ARE
10 HEREBY PREEMPTED.
11 (G) CERTIFICATES OF PUBLIC NECESSITY.--THE COMMISSION SHALL
12 HAVE THE POWER AND ITS DUTY SHALL BE TO ISSUE CERTIFICATES OF
13 PUBLIC NECESSITY FOR THE ESTABLISHMENT OF HAZARDOUS WASTE
14 DISPOSAL OR TREATMENT FACILITIES, AS MAY BE NECESSARY AND
15 APPROPRIATE. ANY PERSONS OR MUNICIPALITIES WHICH HAVE OBTAINED
16 ALL NECESSARY PERMITS FROM THE DEPARTMENT, OR OTHER APPROPRIATE
17 STATE OR FEDERAL AGENCIES, MAY APPLY TO THE COMMISSION FOR A
18 CERTIFICATE OF PUBLIC NECESSITY FOR A SITE PREVIOUSLY CERTIFIED
19 BY THE COMMISSION. IF GRANTED, SUCH CERTIFICATE SHALL SUSPEND
20 AND SUPERSEDE ANY AND ALL LOCAL LAWS WHICH WOULD PRECLUDE OR
21 PROHIBIT THE ESTABLISHMENT OF A HAZARDOUS WASTE TREATMENT OR
22 DISPOSAL FACILITY, INCLUDING ZONING ORDINANCES.
23 (H) TRANSFER OF DEPARTMENT POWER.--THE POWER OF THE BOARD TO
24 ISSUE CERTIFICATES OF PUBLIC NECESSITY AS PROVIDED IN SECTION
25 105(F) OF THE SOLID WASTE MANAGEMENT ACT, AND THE AUTHORITY OF
26 THE DEPARTMENT TO FACILITATE SITING AS PROVIDED IN SECTION 507
27 OF THE SOLID WASTE MANAGEMENT ACT ARE HEREBY TRANSFERRED TO THE
28 COMMISSION TO THE EXTENT THAT THEY RELATE TO HAZARDOUS WASTE
29 DISPOSAL OR TREATMENT FACILITIES.
30 CHAPTER 5
19870H1852B3585 - 30 -
1 RESPONSE AND INVESTIGATION
2 Section 501. Response authorities.
3 (a) General rule.--Where there is a release or threat of
4 release from a site of a contaminant which presents a hazard to
5 the public health or safety or the environment or where a
6 hazardous substance is released or threatened to be released,
7 the department shall investigate and, if further response action
8 is deemed appropriate, the department may SHALL notify the <--
9 owner, operator or any other responsible party of such release
10 or threat of a release and allow such person or persons to
11 investigate and undertake an appropriate response, or may
12 undertake any further investigation, interim response or
13 remedial response relating to the contaminant or hazardous
14 substance which the department deems necessary or appropriate to
15 protect the public health, safety or welfare or the environment.
16 (b) Effect on liability.--No response action taken by any
17 person shall be construed as an admission of liability for a
18 release or threatened release.
19 (c) Exclusion.--
20 (1) The department shall not provide for an interim
21 response or remedial response under this section in response
22 to a release or threat of release:
23 (i) of a naturally occurring substance in its
24 unaltered form, or altered solely through naturally
25 occurring processes or phenomena, from a location where
26 it is naturally found;
27 (ii) from products which are part of the structure
28 of, and result in exposure within, residential buildings
29 or business or community structures;
30 (iii) into public or private drinking water supplies
19870H1852B3585 - 31 -
1 due to deterioration of the system through ordinary use;
2 or
3 (iv) from a coal mining operation under the
4 jurisdiction of the department or from a site eligible
5 for funding under Title IV of the Surface Mining Control
6 and Reclamation Act of 1977 (Public Law 95-87, 30 U.S.C.
7 § 1201 et seq.).
8 (2) Notwithstanding paragraph (1), to the extent
9 authorized by this section, the department may respond to a
10 release or threat of release when, in the department's
11 discretion, it determines that the release or threat of
12 release constitutes a public health, safety, or environmental
13 emergency and that no other person with the authority and
14 capability to respond to the emergency will do so in a timely
15 manner.
16 (d) Investigations.--The department shall undertake OR CAUSE <--
17 TO BE UNDERTAKEN BY THE OWNER, OPERATOR OR ANY OTHER RESPONSIBLE
18 PARTY, AS PERMITTED UNDER SUBSECTION (A), investigations,
19 monitoring, surveys, testing and other similar activities
20 necessary or appropriate to identify the existence and extent of
21 the release or threat of release, the source and nature of the
22 hazardous substances or contaminants and the extent of danger to
23 the public health or welfare or the environment. The department
24 may also undertake planning, legal, fiscal, economic,
25 engineering, architectural and other studies or investigations
26 necessary or appropriate to plan and direct a response action,
27 to recover the costs of the response action and to enforce the
28 provisions of this act. The department shall undertake the
29 activities described in this subsection in one or more of the
30 following circumstances:
19870H1852B3585 - 32 -
1 (1) When the department is authorized to act under
2 subsection (a).
3 (2) When the department has reason to believe that a
4 release of a hazardous substance or a contaminant has
5 occurred or is about to occur.
6 (3) When the department determines that illness or
7 disease or complaints of illness or disease may be
8 attributable to exposure to a hazardous substance or
9 contaminant.
10 (e) Notice of investigations.--The department, upon
11 undertaking any investigation, interim response or remedial
12 response under this section, shall give prompt written notice
13 thereof to the owner and operator of the site and to the first
14 mortgagee holding a mortgage on the premises on which the site
15 is located.
16 (f) Bidding for remedial or removal actions.--
17 (1) The department may prequalify bidders for remedial
18 or removal actions taken under subsection (b). The department
19 may reject the bid of a prospective bidder who has not been
20 prequalified.
21 (2) To prequalify bidders, the department shall adopt,
22 by regulation, and apply a uniform system of rating bidders.
23 In order to obtain information for rating, the department may
24 require from prospective bidders answers to questions,
25 including, but not limited to, questions about the bidder's
26 financial ability; the bidder's experience in removal and
27 remedial action involving hazardous substances; the bidder's
28 past safety record; and the bidder's past performance on
29 Federal, State or local government projects. The department
30 may also require prospective bidders to submit financial
19870H1852B3585 - 33 -
1 statements.
2 (3) The department shall utilize the business financial
3 data and information submitted by a bidder under this section
4 only for the purposes of prequalifying bidders and shall not
5 otherwise disclose this data or information.
6 Section 502. Priorities.
7 (a) List.--
8 (1) The department shall establish a temporary list of
9 priorities among sites with releases or threatened releases
10 for the purpose of taking remedial response. The temporary
11 list, with necessary modifications, shall remain in effect
12 until the department promulgates regulations establishing
13 criteria for determining priorities among releases and
14 threatened releases, OR UNTIL 12 MONTHS AFTER THE EFFECTIVE <--
15 DATE OF THIS ACT, WHICHEVER IS SOONER. After regulations are
16 promulgated, a permanent priority list shall be established
17 and may be modified according to the criteria set forth in
18 the regulations. Before a list is established under this
19 subsection, the department shall publish the list in the
20 Pennsylvania Bulletin and allow 30 days for comments on the
21 list by the public. Remedial responses may be on-going at
22 more than one site at any given time.
23 (2) The temporary list shall be composed of the sites
24 following in priority those sites meeting the requirements of
25 the national priority listing of Appendix A of 40 CFR Part
26 300, but which do not qualify for national priority listing.
27 (3) The department, when it deems necessary for the <--
28 response to a release or for the protection of public health,
29 safety or welfare or the environment, may include additional
30 sites to the temporary list.
19870H1852B3585 - 34 -
1 (3) THE TEMPORARY LIST SHALL LIST SITES IN DESCENDING <--
2 ORDER OF PRIORITY AND SHALL INCLUDE NO MORE THAN 20 SUCH
3 SITES.
4 (b) Criteria.--The temporary list and the regulations
5 required by subsection (a) shall be based upon the relative risk
6 or danger to public health and welfare or the environment,
7 taking into account, to the extent possible, the population at
8 risk, the hazardous potential of the hazardous substances or
9 contaminants at the sites, the potential for contamination of
10 drinking water supplies, the potential for direct human contact,
11 the potential for destruction of sensitive ecosystems, the
12 maximum usage of available Federal funds for sites which qualify
13 for the National Priority List, the administrative and financial
14 capabilities of the department and other appropriate factors AND <--
15 SHALL INCORPORATE THE HAZARD RANKING SYSTEM ESTABLISHED UNDER
16 THE FEDERAL SUPERFUND ACT.
17 (c) Status.--The placement or removal of a site with a
18 release or threatened release upon either the temporary priority
19 list or the permanent priority list shall not be deemed to be a
20 final action subject to review under Title 2 of the Pennsylvania
21 Consolidated Statutes (relating to administrative law and
22 procedure) or section 1921-A of the act of April 9, 1929
23 (P.L.177, No.175), known as The Administrative Code of 1929, nor
24 shall it confer a right or duty upon the department or any
25 person, nor shall the placement of the site upon either the
26 temporary or permanent priority list preclude any responsible
27 person from undertaking a voluntary cleanup pursuant to this
28 act.
29 (d) Listing.--Ninety days prior to the placement of a site
30 upon the permanent list, the department shall notify the known
19870H1852B3585 - 35 -
1 responsible persons of the proposed listing. The site shall not
2 be placed upon the list if a responsible person enters into a
3 settlement with the department which provides for the abatement
4 of the release or threatened release. Once a site has been
5 placed upon the list, it shall be removed upon the determination
6 by the department that the responsible person has complied with
7 the terms of the settlement and has initiated a cleanup.
8 (e) Rights preserved.--Nothing in this act shall be
9 interpreted to deprive any interested or aggrieved person of his
10 inherent right to bring an action in mandamus to correct
11 department actions under the standards currently recognized in
12 Pennsylvania equity practice.
13 Section 503. Information gathering and access.
14 (a) Authority.--The authority of this section shall be
15 exercised when there is a reasonable basis to believe there may
16 be a release or threat of release of a hazardous substance or
17 contaminant. The authority of this section shall be exercised
18 for the purposes of determining the need for response, choosing
19 or taking a response action under this act or otherwise
20 enforcing the provisions of this act.
21 (b) Information.--
22 (1) The department shall have access to information
23 relevant to any of the following:
24 (i) The identification, nature and quantity of
25 materials which have been or are generated, treated,
26 stored or disposed of at a site or transported to a site.
27 (ii) The nature or extent of a release or threatened
28 release of a hazardous substance or pollutant or
29 contaminant at or from a site.
30 (iii) Information relating to the ability of a
19870H1852B3585 - 36 -
1 person to pay for or to perform a response action.
2 (2) A person who has or may have information under
3 paragraph (1) shall, upon reasonable notice, either:
4 (i) grant the department access at all reasonable
5 times to a site or other place or property to inspect and
6 copy all documents or records relating to the matter; or
7 (ii) copy and furnish to the department all the
8 documents or records.
9 (c) Right of entry.--The department may enter at reasonable
10 times a site or other place or property in one or more of the
11 following circumstances:
12 (1) A hazardous substance or contaminant may be or has
13 been generated at, stored at, treated at, disposed of at or
14 transported from the place.
15 (2) A hazardous substance or contaminant has been or is
16 being or threatens to be released.
17 (3) Entry is needed to determine the need for response
18 to hazardous substance or contaminant or the appropriate
19 response or to effectuate a response action under this act.
20 (4) A release of a hazardous substance or contaminant
21 has occurred on a nearby property, and entry is required to
22 determine the extent of the release.
23 (5) There is a container or impoundment which is typical
24 of those used to contain or impound hazardous substances and
25 entry is needed to determine the existence of a hazardous
26 substance.
27 (d) Inspection.--
28 (1) The department may inspect and obtain samples from a
29 site or other place or property referred to in subsection (c)
30 or from a location of a suspected hazardous substance or
19870H1852B3585 - 37 -
1 contaminant. The department's right of inspection shall
2 include the sampling of solids, liquids and gases;
3 excavations for soil sampling; drilling and maintenance of
4 wells to monitor groundwater; and the installation and
5 maintenance of other equipment to monitor the nature or
6 extent of a release of a suspected hazardous substance or
7 contaminant. The department may inspect and obtain samples of
8 containers or labeling for suspected hazardous substances or
9 contaminants. Each inspection shall be completed with
10 reasonable promptness.
11 (2) When the department obtains samples, before leaving
12 the premises, it shall give to the owner, operator, tenant or
13 other person in charge of the place from which the samples
14 were obtained a receipt describing the sample obtained and,
15 when requested, a portion of the sample. A copy of the
16 results of an analysis made of the samples shall be furnished
17 promptly to the owner, operator, tenant or other person in
18 charge when the person can be located.
19 (e) Duty to cooperate with response action.--
20 (1) The following persons shall allow the department
21 access or right of entry and inspection as may be reasonably
22 necessary to determine the nature and extent of a release of
23 a hazardous substance or contaminant:
24 (i) A person who owns or occupies land on which
25 there is a release or threat of a release of a hazardous
26 substance or contaminant.
27 (ii) A person who owns or occupies land which is
28 near the site of a release or threatened release.
29 (iii) A person who owns or occupies land on which
30 there is a container or impoundment typical of those used
19870H1852B3585 - 38 -
1 to contain or impound hazardous substances.
2 (iv) A person who is a responsible person under
3 section 701.
4 (2) The following persons shall allow the department
5 access or right of entry and inspection as may be reasonably
6 necessary to perform a response under section 501:
7 (i) A person who owns or occupies land on which
8 there is a release or a threat of release of a hazardous
9 substance or contaminant.
10 (ii) A person who owns or occupies land which may be
11 affected by the release of a hazardous substance or
12 contaminant.
13 (iii) A person who is a responsible person under
14 section 701.
15 (f) Remedies.--
16 (1) In addition to any other remedy provided by this
17 act, the department may enforce the provisions of this
18 section by issuing orders requiring access to information,
19 requiring entry onto property and restraining interference
20 with any response action. An order issued under this section
21 may be appealed to the board under section 1921-A of the act
22 of April 9, 1929 (P.L.177, No.175), known as The
23 Administrative Code of 1929.
24 (2) The department may immediately apply to a court of
25 competent jurisdiction to enforce its order, unless the board
26 has issued a supersedeas. The court shall immediately enforce
27 the department's order upon finding all of the following:
28 (i) The order is authorized by this act.
29 (ii) There has not been full compliance with the
30 order.
19870H1852B3585 - 39 -
1 (3) In lieu of issuing an order under paragraph (1), the
2 department may apply immediately to a court of competent
3 jurisdiction for the same relief.
4 (4) When the board reviews an order issued under
5 paragraph (1), or when a court reviews the department's
6 request for immediate relief under paragraph (3), the board
7 shall uphold the department's order and the court shall grant
8 the requested relief where all of the following are
9 established:
10 (i) The department has a reasonable basis to believe
11 that there may be a release or a threat of a release of a
12 hazardous substance or contaminant.
13 (ii) The order or relief requested is reasonably
14 related to determining the need for a response, to
15 choosing or taking any response or to otherwise enforcing
16 the provisions of this act.
17 (5) Except as provided in this subsection, there shall
18 be no administrative or judicial review of action by the
19 department or its agents to obtain access to information, to
20 obtain entry onto property or to perform work on the property
21 in connection with a response action. Neither the board nor
22 any court may restrain action of the department under this
23 section unless all of the following apply:
24 (i) The person seeking to restrain the department
25 has given the department a 30-day written notice of his
26 intent to do so.
27 (ii) The department has failed to issue an order
28 within the 30-day period.
29 (6) The minimum civil penalty assessed under section
30 1104 for a violation of an order issued under this section
19870H1852B3585 - 40 -
1 shall be $5,000 for each day the order is violated.
2 (g) Other remedies.--Nothing in this subsection shall
3 preclude the department from securing access or obtaining
4 information in any other lawful manner.
5 (h) Public records.--
6 (1) Except as provided in this subsection, records,
7 reports or other information obtained under this act shall be
8 available to the public for inspection or copying during
9 regular business hours. The department may, upon request,
10 designate records, reports or information as confidential
11 when the person providing the information demonstrates all of
12 the following:
13 (i) The information contains the trade secrets,
14 processes, operations, style of work or apparatus of a
15 person or is otherwise confidential business information,
16 including information obtained under subsection
17 (b)(1)(iii).
18 (ii) The information does not relate to health or
19 safety effects of a hazardous substance or contaminant.
20 (2) When submitting information to the department under
21 this act, a person shall designate the information which the
22 person believes is confidential or shall submit that
23 information separately from other information being
24 submitted.
25 (i) Use of force.--When a person refuses to allow the
26 department to have access to information under subsection (c) or
27 entry onto property under subsection (d), the department shall
28 not use force to obtain the information or entry unless one of
29 the following applies:
30 (1) The department has obtained a search warrant or
19870H1852B3585 - 41 -
1 initiated an action under subsection (f).
2 (2) Immediate action is needed to protect the public
3 health or safety or the environment.
4 Section 504. Cleanup standards. <--
5 (a) General rule.--Final remedial responses under this act
6 shall meet all standards, requirements, criteria or limitations
7 which are legally applicable or relevant and appropriate under
8 the circumstances presented by the release or threatened release
9 of the hazardous substance or contaminant. Cleanup standards
10 promulgated or ordered under this act shall be at least as
11 stringent as those promulgated under the Federal Superfund Act.
12 (b) Rulemaking.--The department shall promulgate the
13 standards, requirements, criteria or limitations that are
14 generally applicable to remedial responses to releases of
15 hazardous substances or contaminants by regulation, or by
16 providing actual notice to a responsible person of the
17 applicable, or relevant and appropriate, requirements.
18 (c) Form.--The department's standards for remedial responses
19 may include, but are not limited to, regulations, policies,
20 guidelines, design manuals, plans, executive orders, forms and
21 modules and other documents used in environmental programs
22 administered by the department.
23 (d) Special standards.--In addition to the promulgation of
24 State standards, requirements, criteria or limitations which are
25 generally applicable, the department may add special standards
26 on a case-by-case basis in order to assure protection of human
27 health and the environment.
28 (e) Modification.--The department may modify otherwise
29 applicable requirements when any of the following apply:
30 (1) Compliance with a requirement at a site will result
19870H1852B3585 - 42 -
1 in greater risk to the public health and the environment than
2 alternative options.
3 (2) Compliance with a requirement at a site is
4 technically infeasible from an engineering perspective.
5 (3) The remedial response selected will attain a
6 standard of performance that is equivalent to that required
7 under the otherwise applicable requirement, through use of
8 another method or approach which is more cost effective.
9 (f) Fund money.--In addition to the provisions of subsection
10 (e), when the response action is to be done using only fund
11 money, the department may waive requirements that might
12 otherwise be applicable to a response at the site undertaken by
13 a responsible person if it determines the waiver to be in the
14 public interest.
15 (g) Permits.--When prior written approval is obtained from
16 the department, no State or local permits shall be required for
17 a response action conducted entirely on the site, provided that
18 the response action complies with standards pursuant to this
19 section.
20 (h) Review.--Any action taken by the department under this
21 section shall be subject to judicial or administrative review
22 only as provided in section 508.
23 SECTION 504. CLEANUP STANDARDS. <--
24 (A) GENERAL RULE.--FINAL REMEDIAL ACTIONS UNDER THIS ACT
25 SHALL MEET ALL STANDARDS, REQUIREMENTS, CRITERIA OR LIMITATIONS
26 WHICH ARE LEGALLY APPLICABLE OR RELEVANT AND APPROPRIATE UNDER
27 THE CIRCUMSTANCES PRESENTED BY THE RELEASE OR THREATENED RELEASE
28 OF THE HAZARDOUS SUBSTANCE OR CONTAMINANT AND WHICH PROVIDE FOR
29 COST-EFFECTIVE RESPONSES. CLEANUP STANDARDS PROMULGATED UNDER
30 THIS ACT SHALL BE CONSISTENT WITH THOSE ESTABLISHED UNDER THE
19870H1852B3585 - 43 -
1 FEDERAL SUPERFUND ACT. PENDING PROMULGATION OF REGULATIONS
2 REQUIRED BY SUBSECTION (B), THE CLEANUP STANDARDS ESTABLISHED
3 UNDER THE FEDERAL SUPERFUND ACT SHALL APPLY TO ALL REMEDIAL
4 ACTIONS.
5 (B) RULEMAKING.--THE DEPARTMENT SHALL PROMULGATE THE
6 STANDARDS, REQUIREMENTS, CRITERIA OR LIMITATIONS THAT ARE
7 GENERALLY APPLICABLE TO REMEDIAL RESPONSES TO RELEASES OF
8 HAZARDOUS SUBSTANCES OR CONTAMINANTS BY REGULATION.
9 (C) SPECIAL STANDARDS.--THE DEPARTMENT MAY ADD SPECIAL
10 STANDARDS, MORE STRINGENT THAN FEDERAL CLEANUP STANDARDS, ON A
11 CASE-BY-CASE BASIS IF BOTH OF THE FOLLOWING APPLY:
12 (1) THE CIRCUMSTANCES AT THE SITE ARE SUCH THAT THE
13 APPLICABLE FEDERAL STANDARD, AS APPLIED, WOULD NOT PROVIDE
14 THE DEGREE OF PROTECTION TO PUBLIC HEALTH OR THE ENVIRONMENT
15 INTENDED BY THE FEDERAL STANDARD.
16 (2) THE ADDITIONAL DEGREE OF PROTECTION PROVIDED BY THE
17 SPECIAL STANDARD IS PROPORTIONATE TO THE INCREMENTAL COST OF
18 IMPLEMENTING IT.
19 (D) MODIFICATION.--THE DEPARTMENT MAY WAIVE OTHERWISE
20 APPLICABLE REQUIREMENTS IF ANY OF THE FOLLOWING APPLY:
21 (1) COMPLIANCE WITH A REQUIREMENT AT A SITE WILL RESULT
22 IN GREATER RISK TO THE PUBLIC HEALTH AND THE ENVIRONMENT THAN
23 ALTERNATIVE OPTIONS.
24 (2) COMPLIANCE WITH A REQUIREMENT AT A SITE IS
25 TECHNICALLY INFEASIBLE FROM AN ENGINEERING PERSPECTIVE.
26 (3) THE REMEDIAL ACTIONS SELECTED WILL ATTAIN A STANDARD
27 OF PERFORMANCE THAT IS EQUIVALENT TO THAT REQUIRED UNDER THE
28 OTHERWISE APPLICABLE REQUIREMENT THROUGH USE OF ANOTHER
29 METHOD OR APPROACH.
30 (4) THE REMEDIAL ACTION SELECTED WILL NOT PROVIDE FOR
19870H1852B3585 - 44 -
1 COST-EFFECTIVE RESPONSE.
2 (E) FUND MONEY.--IN ADDITION TO THE PROVISIONS OF SUBSECTION
3 (D), IF THE RESPONSE ACTION IS TO BE DONE USING ONLY FUND MONEY,
4 THE DEPARTMENT MAY WAIVE REQUIREMENTS THAT MIGHT OTHERWISE BE
5 APPLICABLE TO A RESPONSE AT THE SITE UNDERTAKEN BY A RESPONSIBLE
6 PERSON IF IT DETERMINES THE WAIVER TO BE IN THE PUBLIC INTEREST.
7 (F) PERMITS.--NO STATE OR LOCAL PERMITS SHALL BE REQUIRED
8 FOR A RESPONSE ACTION CONDUCTED ENTIRELY ON THE SITE IF PRIOR
9 WRITTEN APPROVAL IS OBTAINED FROM THE DEPARTMENT.
10 (G) REVIEW.--ANY ACTION TAKEN BY THE DEPARTMENT UNDER THIS
11 SECTION SHALL BE SUBJECT TO JUDICIAL OR ADMINISTRATIVE REVIEW.
12 Section 505. Development and implementation of response
13 actions.
14 (a) Basis.--The selection of a remedial response shall be
15 based upon the administrative record developed under section
16 506.
17 (b) Interim response.--An interim response may be taken
18 before the development of an administrative record when, upon
19 the basis of the information available to the department at the
20 time of the interim response, there is a reasonable basis to
21 believe that prompt action is required to protect the public
22 health or safety or the environment. When the department takes
23 an interim response before the development of an administrative
24 record, it shall provide the notice required by section 506(b)
25 within 30 days of initiating the response action. In addition to
26 the information required by section 506(b), the notice shall
27 describe the actions which have already been taken and any
28 additional actions to be taken prior to the close of the public
29 comment period under section 506(c).
30 (c) Implementation of action.--After the selection of an
19870H1852B3585 - 45 -
1 interim response or a remedial response, the department may
2 implement all or any part of the selected action by doing any of
3 the following:
4 (1) Issuing an order to a responsible person. This
5 paragraph does not prohibit action under paragraph (2).
6 (2) Taking the action itself. This paragraph does not
7 prohibit action under paragraph (1).
8 (d) Orders.--Orders issued under this section include, but
9 are not limited to:
10 (1) Orders requiring a responsible person to take a
11 response action.
12 (2) Orders restraining a person from interfering with a
13 response action.
14 (3) Orders modifying a response action, including
15 response actions which had been previously approved by the
16 department.
17 (e) Judicial action.--The department may file an action to
18 enforce an order issued under this section in Commonwealth Court
19 or in any other court of competent jurisdiction. The department
20 may include in the same action a civil penalty assessment under
21 section 1104. When the department files such an action, its
22 order shall be enforced and its civil penalty assessment shall
23 be upheld unless the person subject to the order or the civil
24 penalty can demonstrate that the department acted arbitrarily
25 and capriciously on the basis of the administrative record
26 developed under section 506.
27 (f) Costs.--
28 (1) When the department issues an order under this
29 section, a person subject to the order may seek to recover
30 from the fund the cost of complying with the order by filing
19870H1852B3585 - 46 -
1 an action with the board after completion of the response
2 action. The action must be filed within 60 days after the
3 completion of the required action. To recover costs, the
4 person must demonstrate by a preponderance of the evidence,
5 upon the basis of the administrative record developed under
6 section 506, all of the following:
7 (i) The person was not a responsible person under
8 this act.
9 (ii) The costs sought to be recovered are reasonable
10 in light of the action required by the order.
11 (2) A person subject to an order under this act may also
12 recover reasonable costs for that portion of the response
13 action ordered which the person can demonstrate to be
14 arbitrary and capricious on the basis of the administrative
15 record developed under section 506.
16 (g) Voluntary settlements.--The department, in its
17 discretion, may enter into an agreement with any person,
18 including a person who may be liable under section 701, to
19 perform any response action when the department determines that
20 such action will be properly done in accordance with the
21 department's standards and after such person has submitted a
22 plan and obtained the department's approval of such plan.
23 Whenever practicable and in the public interest, the department
24 may enter into agreements under this section in order to
25 expedite efficient remedial action and minimize litigation. The
26 decision of the department to use or not to use the procedures
27 of this subsection is not subject to judicial review.
28 (H) MIXED FUNDING.--AN AGREEMENT UNDER THIS SECTION MAY <--
29 PROVIDE THAT THE DEPARTMENT WILL PAY FROM THE FUND A CERTAIN
30 PORTION OF THE TOTAL RESPONSE COSTS OR THE COST OF CERTAIN
19870H1852B3585 - 47 -
1 RESPONSE ACTIONS. THE DEPARTMENT SHALL, TO THE EXTENT
2 PRACTICABLE, ENTER INTO MIXED FUNDING SETTLEMENTS FOR THAT
3 PORTION OF THE RESPONSE COSTS OR DAMAGES ALLOCABLE TO PERSONS
4 AGAINST WHOM RECOVERY CANNOT BE OBTAINED BY REASON OF
5 INSOLVENCY, DISSOLUTION, LACK OF JURISDICTION BY PENNSYLVANIA
6 COURTS OR OTHER SIMILAR REASONS.
7 (I) DISCRETIONARY COVENANTS.--TO ENCOURAGE THE VOLUNTARY AND
8 TIMELY COOPERATION OF RESPONSIBLE PARTIES IN THE CLEANUP OF
9 CERTAIN HAZARDOUS WASTE SITES, THE DEPARTMENT MAY, IN ITS
10 DISCRETION, PROVIDE ANY PERSON WITH A COVENANT NOT TO SUE
11 CONCERNING ANY LIABILITY TO THE COMMONWEALTH UNDER THIS ACT,
12 INCLUDING FUTURE LIABILITY, RESULTING FROM A RELEASE OR
13 THREATENED RELEASE OF A HAZARDOUS SUBSTANCE ADDRESSED BY AN
14 ONSITE REMEDIAL ACTION WHERE:
15 (1) THE COVENANT NOT TO SUE IS IN THE PUBLIC INTEREST.
16 (2) THE COVENANT NOT TO SUE WOULD EXPEDITE RESPONSE
17 ACTION CONSISTENT WITH SECTIONS 102 AND 104.
18 (3) THE RESPONSE ACTION HAS BEEN APPROVED BY THE
19 DEPARTMENT.
20 (J) SPECIAL COVENANTS NOT TO SUE.--IN THE CASE OF ANY PERSON
21 TO WHOM THE DEPARTMENT IS AUTHORIZED UNDER SUBSECTION (C) TO
22 PROVIDE A COVENANT NOT TO SUE, THE DEPARTMENT SHALL PROVIDE SUCH
23 A PERSON WITH A COVENANT NOT TO SUE WITH RESPECT TO FUTURE
24 LIABILITY TO THE COMMONWEALTH UNDER THIS ACT FOR A FUTURE
25 RELEASE OR THREATENED RELEASE OF HAZARDOUS SUBSTANCES FROM SUCH
26 FACILITY FOR THE PORTION OF REMEDIAL ACTION WHICH INVOLVES THE
27 TREATMENT OF HAZARDOUS SUBSTANCES SO AS TO DESTROY, ELIMINATE OR
28 PERMANENTLY IMMOBILIZE THE HAZARDOUS CONSTITUENTS OF SUCH
29 SUBSTANCES, SO THAT, IN THE JUDGMENT OF THE DEPARTMENT, THE
30 SUBSTANCES NO LONGER PRESENT A CURRENT OR CURRENTLY FORESEEABLE
19870H1852B3585 - 48 -
1 FUTURE SIGNIFICANT RISK TO PUBLIC HEALTH, WELFARE OR THE
2 ENVIRONMENT, NO BY-PRODUCT OF THE TREATMENT OR DESTRUCTION
3 PROCESS PRESENTS ANY SIGNIFICANT HAZARD TO PUBLIC HEALTH,
4 WELFARE OR THE ENVIRONMENT; AND A PERSON PROVIDED SUCH COVENANT
5 NOT TO SUE SHALL NOT BE LIABLE TO THE COMMONWEALTH UNDER THIS
6 ACT WITH RESPECT TO SUCH A RELEASE OR THREATENED RELEASE AT A
7 FUTURE TIME.
8 (K) REQUIREMENT THAT REMEDIAL ACTION BE COMPLETED.--A
9 COVENANT NOT TO SUE CONCERNING FUTURE LIABILITY TO THE
10 COMMONWEALTH SHALL TAKE EFFECT WHEN THE DEPARTMENT CERTIFIES
11 THAT REMEDIAL ACTION HAS BEEN SUBSTANTIALLY COMPLETED, IN
12 ACCORDANCE WITH THE REQUIREMENTS OF THIS ACT, AT THE SITE THAT
13 IS THE SUBJECT OF SUCH COVENANT.
14 (L) FACTORS.--IN ASSESSING THE APPROPRIATENESS OF A COVENANT
15 NOT TO SUE UNDER SUBSECTION (C) AND ANY CONDITION TO BE INCLUDED
16 IN A COVENANT NOT TO SUE UNDER SUBSECTION (C) OR (D), THE
17 DEPARTMENT SHALL CONSIDER WHETHER THE COVENANT OR CONDITION IS
18 IN THE PUBLIC INTEREST ON THE BASIS OF FACTORS COMPARABLE WITH,
19 BUT NOT STRICTER THAN, THOSE ENUMERATED IN SECTION 122(F)(4) OF
20 THE FEDERAL SUPERFUND ACT.
21 Section 506. Administrative record.
22 (a) Contents.--The administrative record upon which a
23 response action is based shall consist of all of the following:
24 (1) The notice issued under subsection (b).
25 (2) The department's description of the action and the <--
26 information which supports the action.
27 (2) ALL INFORMATION, DATA, STUDIES AND REPORTS KNOWN TO <--
28 THE DEPARTMENT RELATING TO THE RELEASE OR THREATENED RELEASE,
29 AND TO THE SELECTION, DESIGN AND ADEQUACY OF THE RESPONSE
30 ACTION.
19870H1852B3585 - 49 -
1 (3) Written comments submitted during the public comment
2 period under subsection (c).
3 (4) Transcripts of comments made at the public hearing
4 held under subsection (d).
5 (5) The department's statement of the basis and purpose
6 for its decision, including findings of fact, an analysis of
7 the alternatives considered and the reasons for selecting the
8 proposed response action, and its response to significant
9 comments made during the public comment period.
10 (6) The docket maintained under subsection (f), listing
11 the contents of the administrative record.
12 (b) Notice.--
13 (1) The department shall issue a notice setting forth
14 all of the following:
15 (i) A brief analysis of the response action and
16 alternative actions that were considered.
17 (ii) The time and place during which the information
18 listed on the docket maintained under subsection (f) may
19 be inspected and copied.
20 (iii) A specified time and place for providing
21 written comments on the response action.
22 (iv) The time and place at which a public hearing
23 will be held to receive oral comments on the response
24 action.
25 (2) The notice shall be mailed to responsible persons
26 whose identities and addresses are known to the department.
27 IN ADDITION, NOTICE SHALL BE MAILED TO ALL HOLDERS OF LIENS <--
28 OF RECORD FILED AGAINST ALL PROPERTIES SUBJECT TO SECTION
29 509(B). The notice shall also be published in a newspaper of
30 general circulation in the area in which the release has
19870H1852B3585 - 50 -
1 occurred and in the Pennsylvania Bulletin. The failure to
2 provide this notice does not affect a responsible person's
3 liability under this act.
4 (c) Public comment.--
5 (1) The public comment period shall extend for at least
6 90 days from the date that notice is published in the
7 Pennsylvania Bulletin. During the public comment period the
8 department shall make available for inspection during normal
9 business hours all of the following:
10 (i) The department's description of the response
11 action.
12 (ii) The information supporting the response action. <--
13 (II) ALL INFORMATION, DATA, STUDIES AND REPORTS <--
14 KNOWN TO THE DEPARTMENT RELATING TO THE RELEASE OR
15 THREATENED RELEASE, AND TO THE SELECTION, DESIGN AND
16 ADEQUACY OF THE RESPONSE ACTION.
17 (iii) Written comments submitted during the public
18 comment period.
19 (iv) The docket maintained under subsection (f).
20 (2) The public comment period shall extend at least 30
21 days after the public hearing to provide an opportunity for
22 the submission of rebuttal and supplementary information.
23 (d) Public hearing.--At least one public hearing shall be
24 conducted near the site of the response action to allow
25 interested persons to give oral or written comments. A
26 transcript shall be kept of oral presentations. The hearing
27 shall be scheduled at least 30 days after the publication of the
28 notice in the Pennsylvania Bulletin.
29 (e) Decision.--At the close of the public comment period,
30 the department shall file a statement of the basis and purpose
19870H1852B3585 - 51 -
1 for its decision. THE STATEMENT SHALL INCLUDE FINDINGS OF FACT, <--
2 AN ANALYSIS OF THE ALTERNATIVES CONSIDERED AND THE REASONS FOR
3 SELECTING THE PROPOSED RESPONSE ACTION. It shall include an
4 explanation of any major changes in the response action from
5 that described in the notice. The department shall also file a
6 response to each of the significant comments, criticisms and new
7 data submitted in oral or written presentations during the
8 public comment period.
9 (f) Docket.--The department shall maintain a docket listing
10 of all the items which form the administrative record, and it
11 shall notify a person submitting a comment that it has been
12 entered on the docket. It shall be the responsibility of the
13 person submitting written comments to either verify that the
14 comments have been noted on the docket or to notify the
15 department, before the end of the public comment period, that
16 the docket does not note the submitted written comment.
17 (g) Closing.--The administrative record shall be closed,
18 once the department has filed its statement and response under
19 subsection (e). The department's decision may not be based, in
20 whole or in part, upon information which has not been noted on
21 the docket as of the date the administrative record is closed.
22 The administrative record may be reopened only for any of the
23 following reasons:
24 (1) Additional information which the department
25 determines to be of central relevance to the selected action
26 is obtained during the implementation of the response action.
27 (2) A person raising an objection to the response action
28 can demonstrate that it was impracticable to raise the
29 objection during the public comment period or that the
30 grounds for the objection arose after the public comment
19870H1852B3585 - 52 -
1 period.
2 (3) The department wishes to document its response
3 costs.
4 (4) A case is remanded to the department under section
5 508.
6 (h) Reopening.--To reopen the administrative record, the
7 department shall provide a notice setting forth the purpose of
8 the reopening and the time and place for submitting written
9 comments during a 60-day public comment period. The department
10 may hold a public hearing if a written request is received
11 within 30 days of publication of the notice of reopening. The
12 docket shall note additional information submitted by the
13 department, written comments, oral comments made at the public
14 hearing and the department's responses to the significant
15 comments. The department's decision not to reopen the
16 administrative record may only be reviewed as provided in
17 section 508.
18 Section 507. Recovery of response costs.
19 (a) General rule.--A responsible person under section 701 or
20 a person who causes a release or threat of a release of a
21 hazardous substance or causes a public nuisance shall be liable
22 for the response costs and for damages to natural resources. The
23 department, a Commonwealth agency, or a municipality which
24 undertakes to abate a public nuisance or take a response action
25 may recover those response costs and natural resource damages in
26 an action in equity brought before a court of competent
27 jurisdiction. In addition, the board is given jurisdiction over
28 actions by the department to recover response costs and damages
29 to natural resources.
30 (b) Amount.--In an action to recover response costs and
19870H1852B3585 - 53 -
1 natural resource damages, the department shall include
2 administrative and legal costs incurred from its initial
3 investigation up to the time that it recovers its costs. The
4 amount attributable to administrative and legal costs shall be
5 10% of the amount paid for the response action or the actual
6 costs, whichever is greater.
7 (c) Punitive damages.--A person who WILLFULLY fails to <--
8 comply with an order of the department requiring a response
9 action or the abatement of a public nuisance shall be liable for
10 punitive damages in an amount which is at least equal to but not
11 more than three times the costs recoverable under this section.
12 A party shall not be liable for punitive damages when a court
13 reviewing the order under section 508 finds that the
14 department's order was invalid as to that party.
15 (d) Effect of damages assessment.--A determination or
16 assessment of damages to natural resources for the purposes of
17 this act, the Federal Superfund Act, or section 311 of the
18 Federal Water Pollution Control Act (62 Stat. 1155, 33 U.S.C. §
19 1321) made by the department or other trustee shall have the
20 force and effect of a rebuttable presumption on behalf of the
21 trustee in an administrative or judicial proceeding under this
22 act, the Federal Superfund Act or section 311 of the Federal
23 Water Pollution Act.
24 (e) Civil penalty.--When the department files an action to
25 recover its response costs and natural resources damage
26 assessment, it may also seek civil penalties under section 1104.
27 The department's entitlement to recover its response costs, its
28 assessment of natural resources' damages and its assessment of
29 civil penalties shall be reviewed solely upon the basis of the
30 administrative record developed under section 506. Its right to
19870H1852B3585 - 54 -
1 recover response costs, natural resources' damages and civil
2 penalties shall be upheld unless the liable person can
3 demonstrate that the department acted arbitrarily and
4 capriciously on the basis of the administrative record developed
5 under section 506.
6 (f) Recycled oil.--
7 (1) When recycled oil is not mixed with any other
8 hazardous substance and is stored, treated, transported and
9 otherwise managed in compliance with regulations or standards
10 promulgated under applicable State and Federal law relating
11 to recycled oil, then all of the following apply:
12 (i) No person may recover from a service station
13 operator, under section 702(a)(2) or (3), response costs
14 or damages resulting from a release or threatened release
15 of recycled oil.
16 (ii) Section 1102 does not apply against a service
17 station operator other than a service station operator
18 described in section 702(a)(1).
19 (2) For purposes of this subsection, a service station
20 operator may presume that a small quantity of used oil is not
21 mixed with other hazardous substances when it has been
22 removed from the engine of a motor vehicle or appliance by
23 the owner of the vehicle or appliance and is presented to the
24 operator for collection, accumulation and delivery to an oil
25 recycling facility.
26 Section 508. Administrative and judicial review of response
27 actions.
28 (a) General rule.--Notwithstanding any other provision of
29 law, the provisions of this section shall provide the exclusive
30 method of challenging either the administrative record developed
19870H1852B3585 - 55 -
1 under section 506 or a decision of the department based upon the
2 administrative record.
3 (b) Timing of review.--Neither the board nor a court shall
4 have jurisdiction to review THE SELECTION AND ADEQUACY OF a <--
5 response action taken by the department or ordered by the <--
6 department under section 505 until the department files an
7 action to enforce the order or to recover its response costs. <--
8 (c) Grounds.--A challenge to THE SELECTION AND ADEQUACY OF a <--
9 response action shall be limited to the administrative record
10 developed under section 506. In a challenge to a response
11 action, an objection shall be waived unless it was raised during
12 the public comment period provided under section 506(c).
13 Notwithstanding any provision of section 1921-A of the act of
14 April 9, 1929 (P.L.177, No.175), known as The Administrative
15 Code of 1929, the record for judicial or administrative review
16 shall consist exclusively of the material referred to in section
17 506(a).
18 (d) Procedural errors.--Procedural errors in the development
19 of the administrative record shall not be a basis for
20 challenging a response action unless the errors were so serious
21 and related to matters of such central relevance to the response
22 action that the action would have been significantly changed had
23 the errors not been made. The person asserting the significance
24 of the procedural errors shall have the burden of proving that
25 the action would have been significantly changed.
26 (e) Remand.--When a response action is demonstrated to be
27 arbitrary and capricious on the basis of the administrative
28 record developed under section 506, or when a procedural error
29 occurred in the development of the administrative record which
30 (error) would have significantly changed the response action,
19870H1852B3585 - 56 -
1 the following apply:
2 (1) When additional information could affect the outcome
3 of the case, the matter shall be remanded to the department
4 for reopening the administrative record.
5 (2) When additional information could not affect the
6 outcome of the case, the department's enforcement of its
7 order or its recovery of response costs shall be limited only
8 as to that portion of the response action found to be
9 arbitrary and capricious or the result of a procedural error
10 which would have significantly changed the action.
11 Section 509. Private cause of action. <--
12 Any person responsible for a release of a hazardous substance
13 under this act shall also be strictly liable for any personal
14 injury or property damage resulting from the release or for any
15 response costs incurred which are not inconsistent with a
16 departmental action pursuant to section 505.
17 Section 510. Superlien.
18 (a) Limit of lien.--The lien shall be limited to the amount
19 of the judgment for costs and penalties as provided in
20 subsection (b); and shall not apply to property used as
21 residential property as provided in subsection (d).
22 (b) Establishment.--An award of response costs, assessment
23 of natural resources' damages or assessment of civil penalties
24 shall constitute a judgment against the party found liable. This
25 judgment may be collected in any manner provided by law. The
26 department shall send a notice of lien to the prothonotary or
27 equivalent official of the county in which the responsible party
28 has real or personal property, setting forth the amount of the
29 award of costs, of the assessment of damages and of the
30 assessment of penalties. The prothonotary or equivalent official
19870H1852B3585 - 57 -
1 shall promptly enter upon the civil judgment or order docket the
2 name and address of the responsible party and the amount of the
3 lien as set forth in the notice of lien. Upon entry by the
4 prothonotary, the lien shall attach to the revenue and all real
5 and personal property of the responsible party, whether or not
6 the responsible party is insolvent.
7 (c) Registry.--There is established a central registry of
8 all liens filed under this act in the Department of State. The
9 Commonwealth shall file a notice of lien with the Secretary of
10 the Commonwealth in addition to filings with a prothonotary or
11 equivalent official.
12 (d) Priority.--The notice of lien filed under this section
13 shall create a lien with priority over all other claims or liens
14 filed. When the property is used for residential purposes, this
15 notice of lien shall not affect a valid lien, right or interest
16 in the property filed in accordance with established procedures
17 prior to the filing of this notice of lien. For purposes of this
18 section, residential purposes include all mortgages eligible for
19 purchase by a corporate instrumentality of the United States
20 Government.
21 (e) Certain interests not affected.--The notice of lien
22 shall not affect a lien, mortgage or security interest in the
23 property which secures a loan or extension of credit if the loan
24 or extension of credit, or the commitment to make the loan or
25 extension of credit, was made in good faith and without
26 knowledge that there were hazardous substances on the property
27 and if prior to the time the loan or commitment was made the
28 lender received a written report of an actual inspection of the
29 property, within a reasonable time immediately prior to the date
30 of the loan or commitment, which did not reveal any indication
19870H1852B3585 - 58 -
1 of the presence of hazardous substances.
2 (f) Time.--The notice of lien filed under this section
3 affecting property of a responsible person which is not the
4 subject of a response action shall have priority from the day of
5 the filing of the notice of the lien over all other claims and
6 liens filed against the property; but it shall not affect any
7 valid lien, right, or interest in the property filed in
8 accordance with established procedure prior to the filing of a
9 notice of lien under this subsection.
10 (g) Notice.--Notice shall be mailed to all known holders of
11 liens of record filed against parties subject to this section.
12 SECTION 509. LIEN. <--
13 (A) ESTABLISHMENT.--AN AWARD OF RESPONSE COSTS, ASSESSMENT
14 OF NATURAL RESOURCES' DAMAGES OR ASSESSMENT OF CIVIL PENALTIES
15 SHALL CONSTITUTE A JUDGMENT AGAINST THE RESPONSIBLE PERSON. THE
16 JUDGMENT MAY BE COLLECTED IN ANY MANNER PROVIDED BY LAW. THE
17 DEPARTMENT SHALL SEND A NOTICE OF LIEN TO THE PROTHONOTARY OR
18 EQUIVALENT OFFICIAL OF THE COUNTY IN WHICH THE RESPONSIBLE PARTY
19 HAS REAL OR PERSONAL PROPERTY, SETTING FORTH THE AMOUNT OF THE
20 AWARD OF COSTS, OF THE ASSESSMENT OF DAMAGES AND OF THE
21 ASSESSMENT OF PENALTIES. THE PROTHONOTARY OR EQUIVALENT OFFICIAL
22 SHALL PROMPTLY ENTER UPON THE CIVIL JUDGMENT OR ORDER DOCKET THE
23 NAME AND ADDRESS OF THE RESPONSIBLE PERSON AND THE AMOUNT OF THE
24 LIEN AS SET FORTH IN THE NOTICE OF LIEN. UPON ENTRY BY THE
25 PROTHONOTARY, THE LIEN SHALL ATTACH TO THE REVENUE AND ALL REAL
26 AND PERSONAL PROPERTY OF THE RESPONSIBLE PERSON, WHETHER OR NOT
27 THE RESPONSIBLE PERSON IS INSOLVENT.
28 (B) REGISTRY.--THERE SHALL BE ESTABLISHED A CENTRAL REGISTRY
29 OF ALL LIENS FILED UNDER THIS ACT IN THE DEPARTMENT OF STATE.
30 THE COMMONWEALTH SHALL FILE A NOTICE OF LIEN WITH THE SECRETARY
19870H1852B3585 - 59 -
1 OF THE COMMONWEALTH IN ADDITION TO FILINGS WITH A PROTHONOTARY
2 OR EQUIVALENT OFFICIAL.
3 (C) PRIORITY.--THE NOTICE OF LIEN FILED UNDER THIS SECTION
4 AFFECTING PROPERTY OF A RESPONSIBLE PERSON, INCLUDING PROPERTY
5 SUBJECT TO A RESPONSE ACTION, SHALL CREATE A LIEN WHICH SHALL
6 HAVE PRIORITY FROM THE DAY OF THE FILING OF THE NOTICE OF THE
7 LIEN OVER ALL SUBSEQUENT CLAIMS AND LIENS AGAINST THE PROPERTY,
8 BUT IT SHALL NOT AFFECT ANY VALID LIEN, RIGHT OR INTEREST IN THE
9 PROPERTY FILED IN ACCORDANCE WITH ESTABLISHED PROCEDURE PRIOR TO
10 THE FILING OF A NOTICE OF LIEN UNDER THIS SUBSECTION.
11 Section 511 510. Evaluation grant. <--
12 The department may make available a reasonable sum as a grant
13 to the governing body of the host municipality of a site where
14 the department is considering a remedial response. The host
15 municipality shall use this sum solely to conduct an independent
16 technical evaluation of the proposed remedial response. The
17 grant shall not exceed $50,000 unless the department promulgates
18 regulations establishing a schedule for grants.
19 Section 512 511. Acquisition of real property. <--
20 (a) General rule.--The department may acquire, by purchase,
21 lease, condemnation, donation or otherwise, real property or an
22 interest in real property that the department, in its
23 discretion, determines is needed to conduct a response action
24 under this act. The department has no duty to acquire any
25 interest in real property under this act.
26 (b) Sovereign immunity.--The Commonwealth shall not be
27 liable under this act as a result of acquiring an interest in
28 real estate under this section, nor shall anything in this act
29 be construed as a waiver of sovereign immunity or a waiver under
30 42 Pa.C.S. § 8522 (relating to exceptions to sovereign
19870H1852B3585 - 60 -
1 immunity).
2 Section 513 512. After closure and conveyance of property. <--
3 (a) General rule.--A site at which hazardous substances
4 remain after completion of a response action shall not be put to
5 a use which would disturb or be inconsistent with the response
6 action implemented. The department shall have the authority to
7 issue an order precluding or requiring cessation of activity at
8 a facility which the department finds would disturb or be
9 inconsistent with the response action implemented. A person
10 adversely affected by the order may file an appeal with the
11 board. The department shall require the recorder of deeds to
12 record an order under this subsection in a manner which will
13 assure its disclosure in the ordinary course of a title search
14 of the subject property. An order under this subsection, when
15 recorded, shall be binding upon subsequent purchasers.
16 (b) Acknowledgment.--The grantor, in every deed for the
17 conveyance of property on which a hazardous substance is either
18 presently being disposed or has ever been disposed by the
19 grantor or to the grantor's actual knowledge, shall include in
20 the property description section of the deed an acknowledgment
21 of the hazardous substance disposal. The acknowledgment shall
22 include, but not be limited to, the extent the information is
23 available, the surface area size and exact location of the
24 disposed substances and a description of the types of hazardous
25 substances contained. This property description shall be made a
26 part of the deed for all future conveyances or transfers of the
27 subject property.
28 Section 514 513. Contracting. <--
29 (a) Authority.--The department shall have the authority to
30 enter into a contract with any person or firm to have them
19870H1852B3585 - 61 -
1 provide assistance to the department for the implementation of
2 this act.
3 (b) Indemnification.--Any person who enters into a contract
4 with the department to assist the department in implementing
5 this chapter, shall not be required to indemnify the
6 Commonwealth or Commonwealth employees against claims arising
7 out of performance of the contract.
8 CHAPTER 7
9 LIABILITY AND COST RECOVERY
10 Section 701. Responsible person.
11 (a) General rule.--Except for releases of hazardous
12 substances expressly and specifically approved under a valid
13 Federal or State permit, a person shall be responsible for a
14 release or threatened release of a hazardous substance from a
15 site when any of the following apply:
16 (1) The person owns or operates the site:
17 (i) when a hazardous substance is placed or comes to
18 be located in or on a site;
19 (ii) when a hazardous substance is located in or on
20 the site, but before it is released; or
21 (iii) during the time of the release or threatened
22 release.
23 (2) The person generates, owns or possesses a hazardous
24 substance and arranges by contract, agreement or otherwise
25 for the disposal, treatment or transport for disposal or
26 treatment of the hazardous substance.
27 (3) The person accepts hazardous substances for
28 transport to disposal or treatment facilities, incineration
29 vessels or sites selected by such person from which there is
30 a release or a threatened release of a hazardous substance
19870H1852B3585 - 62 -
1 which causes the incurrence of response costs.
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 (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 (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
14 circumstances.
15 (iii) The owner took precautions against foreseeable
16 acts or omissions of any third party and the consequences
17 that could foreseeably result from such acts or
18 omissions.
19 (iv) When the owner obtained actual knowledge of the
20 release or threatened release of a hazardous substance at
21 the site when the owner owned the real property, and the
22 owner did not subsequently transfer ownership of the
23 property to another person without disclosing such
24 knowledge.
25 (v) The owner has not, by act or omission, caused or
26 contributed to the release or threatened release of a
27 hazardous substance which is the subject of the action
28 relating to the site.
29 (vi) The owner meets one of these requirements:
30 (A) At the time the owner acquired the site, the
19870H1852B3585 - 63 -
1 owner did not know, and had no reason to know, that a
2 hazardous substance which is the subject of the
3 release or threatened release was disposed of on, in
4 or at the site. For purposes of this subparagraph,
5 the owner must have undertaken, at the time of
6 acquisition, all appropriate inquiries into the
7 previous ownership and uses of the property
8 consistent with good commercial or customary practice
9 in an effort to minimize liability. The department
10 shall take into account specialized knowledge or
11 experience on the part of the owner, the relationship
12 of the purchase price to the value of the property if
13 uncontaminated, commonly known or reasonably
14 ascertainable information about the property, the
15 obviousness of the presence or likely presence of
16 contamination at the property and the ability to
17 detect the contamination by appropriate inspection.
18 (B) The owner is a government entity which
19 acquired the site by escheat, through any other
20 involuntary transfer or acquisition or through the
21 exercise of eminent domain authority by purchase or
22 condemnation.
23 (C) The owner acquired the site by inheritance
24 or bequest.
25 (D) The owner is a financial institution, an <--
26 affiliate of a financial institution or a parent
27 owner of a financial institution, which acquired the
28 site, by foreclosure or by deed in lieu of
29 foreclosure before the site was included on a Federal
30 or State superfund ranking list and did not manage or
19870H1852B3585 - 64 -
1 control activities or conditions at the site which
2 contributed to the release or threatened release of a
3 hazardous substance. For the purposes of this
4 subsection, management shall not include operations
5 by virtue of supervision of the finances or fiscal
6 operations of a responsible person in connection with
7 a loan or fiscal obligation to that responsible
8 person.
9 (D) THE OWNER IS A FINANCIAL INSTITUTION OR AN <--
10 AFFILIATE OF A FINANCIAL INSTITUTION OR A CORPORATION
11 INSTRUMENTALITY OF THE FEDERAL GOVERNMENT WHICH
12 ACQUIRED THE SITE BY FORECLOSURE OR BY ACCEPTANCE OF
13 A DEED IN LIEU OF FORECLOSURE.
14 (vii) The only basis of liability for the landowner
15 is ownership of the land.
16 (2) This subsection shall not apply to an owner of real
17 property if that real property is primarily used or is under
18 construction as single or multi-family housing, and that
19 owner was not responsible for placing the hazardous substance
20 on the property.
21 (c) Employees.--When a person who is responsible for a
22 release or threatened release under subsection (a) is an
23 employee who is acting in the scope of employment:
24 (1) The employee is subject to liability under this
25 section only when the employee's conduct with respect to the
26 hazardous substance was negligent under circumstances in
27 which the employee knew that the substance was hazardous and
28 that the employee's conduct could result in serious harm.
29 (2) The employer shall be considered a person
30 responsible for the release or threatened release and is
19870H1852B3585 - 65 -
1 subject to liability under this section regardless of the
2 degree of care exercised by the employee.
3 Section 702. Scope of liability.
4 (a) General rule.--A person who is responsible for a release
5 or threatened release of a hazardous substance from a site as
6 specified in section 701 is strictly liable for the following
7 response costs and damages which result from the release or
8 threatened release or to which the release or threatened release
9 significantly contributes:
10 (1) Costs of interim response which are reasonable in
11 light of the information available to the department at the
12 time the interim response action was taken.
13 (2) Reasonable and necessary or appropriate costs of
14 remedial response incurred by the United States, the
15 Commonwealth or a political subdivision.
16 (3) Other reasonable and necessary or appropriate costs
17 of response incurred by any other person.
18 (4) Damages for injury to, destruction of, or loss of
19 natural resources within this Commonwealth or belonging to,
20 managed by, controlled by or appertaining to the United
21 States, the Commonwealth or a political subdivision. This
22 paragraph includes the reasonable costs of assessing injury,
23 destruction or loss resulting from such a release.
24 (5) The cost of a health assessment or health effects
25 study.
26 (b) Interest.--
27 (1) The amounts recoverable in an action under sections
28 507 and 1101 include interest on the amounts recoverable
29 under subsection (a). Interest shall accrue from the later
30 of:
19870H1852B3585 - 66 -
1 (i) the date payment of a specified amount is
2 demanded in writing; or
3 (ii) the date of the expenditure concerned.
4 (2) The rate of interest on the outstanding unpaid
5 balance of the amounts recoverable under sections 507 and
6 1101 shall be 6% annually.
7 (c) Contractors.--A person or company who has entered into a
8 contract with the department to assist the department in
9 implementing this act, shall not be held liable under this act
10 for a release of a hazardous substance arising out of
11 performance of the contract when the release is not caused by
12 the contractor's negligence.
13 (d) Commonwealth employees.--Persons employed by the
14 Commonwealth shall not be held liable for a release of a
15 hazardous substance or contaminant, or any other damages
16 incurred, as a result of actions or omissions occurring when
17 acting in their official capacity.
18 Section 703. Defenses to liability.
19 (a) Grounds.--There shall be no liability under section 701
20 for a person otherwise liable who can establish, that the
21 release or threat of release of a hazardous substance and the
22 damages resulting therefrom were caused solely by any of the
23 following:
24 (1) An act of God.
25 (2) An act of war.
26 (3) An act or omission of a third party other than an
27 employee, agent or contractor of the responsible person or
28 one whose act or omission occurs in connection with an
29 agreement or contractual relationship (EXCEPT WHERE THE SOLE <--
30 CONTRACTUAL ARRANGEMENTS ARISE EITHER FROM A PUBLISHED TARIFF
19870H1852B3585 - 67 -
1 AND ACCEPTANCE FOR CARRIAGE BY A COMMON CARRIER BY RAIL, OR
2 AN EXEMPT CIRCULAR OF TRANSPORTATION CONTRACT IN LIEU OF A
3 PUBLISHED TARIFF FOR CARRIAGE BY A COMMON CARRIER BY RAIL),
4 if the responsible person:
5 (i) exercised due care with respect to the hazardous
6 substance concerned, taking into consideration the
7 characteristics of such hazardous substance, in light of
8 all relevant facts and circumstances; and
9 (ii) took precautions against foreseeable acts or
10 omissions of any such third party and the consequences
11 that could foreseeably result from those acts or
12 omissions.
13 (b) Assistance.--Except as provided in subsection (c), no
14 person shall be liable under this act for costs or damages as a
15 result of actions taken or omitted in the course of rendering
16 care, assistance or advice in accordance with this act or at the
17 direction of the department with respect to an incident creating
18 a danger to public health, safety or welfare or the environment
19 as a result of a release of a hazardous substance or contaminant
20 or the threat thereof. This subsection does not preclude
21 liability for costs or damages as the result of negligence on
22 the part of the person.
23 (c) Government action.--No State agency or political
24 subdivision shall be liable under this act for costs or damages
25 as a result of actions taken by the State agency or political
26 subdivision in response to a release or threatened release of a
27 hazardous substance generated by or from a site.
28 (d) Burden of proof.--A person claiming a defense provided
29 in this section has the burden to prove all elements of the
30 defense by a preponderance of the evidence.
19870H1852B3585 - 68 -
1 Section 704. Subrogation and insurance.
2 (a) General rule.--An owner or operator of a facility or any
3 other person who may be liable under section 701 may not avoid
4 that liability by means of a conveyance of a right, title or
5 interest in real property, or by an indemnification, a hold
6 harmless agreement, or a similar agreement.
7 (b) Construction.--Nothing in this section shall be
8 construed to do any of the following:
9 (1) Prohibit a party who may be liable under section 701
10 from entering into an agreement by which that party is
11 insured, held harmless or indemnified for part or all of that
12 liability.
13 (2) Prohibit the enforcement of an insurance, a hold
14 harmless or an indemnification agreement.
15 (3) Bar a cause of action brought by a party who may be
16 liable under section 701 or by an insurer or guarantor,
17 whether by right of subrogation or otherwise.
18 Section 705. Contribution.
19 (a) General rule.--A person may seek contribution from a
20 responsible person under section 701, during or following a
21 civil action under sections 507 or 1101. Claims for contribution
22 shall be brought in accordance with this section and the
23 Pennsylvania Rules of Civil Procedure. Nothing in this section
24 shall diminish the right of a person to bring an action for
25 contribution in the absence of a civil action under sections 507
26 or 1101. A liable party's right to contribution shall be limited <--
27 to the excess of consideration paid to the department over that
28 party's allocated share of liability as determined under this
29 section.
30 (b) Allocation.--In a civil action in which a liable party
19870H1852B3585 - 69 -
1 seeks a contribution claim, the court, or the board in an action
2 brought under section 507 or 1101, shall enter judgment
3 allocating liability among the liable parties. Allocation shall
4 not affect the parties' liability to the department. The burden
5 is on each party to show how liability should be allocated. In
6 determining allocation under this section, the court or the
7 board may use such equitable factors as it deems appropriate.
8 The trier of fact shall consider the following factors:
9 (1) The extent to which each party's contribution to the
10 release of a hazardous substance can be distinguished.
11 (2) The amount of hazardous substance involved.
12 (3) The degree of toxicity of the hazardous substance
13 involved.
14 (4) The degree of involvement of and care exercised by
15 each party in manufacturing, treating, transporting, and
16 disposing of the hazardous substance.
17 (5) The degree of cooperation by each party with
18 Federal, State, or local officials to prevent harm to the
19 public health or the environment.
20 (6) Knowledge by each party of the hazardous nature of
21 the substance.
22 (c) Settlements.--
23 (1) When the department enters into an administrative or
24 judicially approved settlement of a civil action brought
25 under sections 507 or 1101, the amount of the department's
26 claim under that civil action shall be reduced by the amount
27 of the consideration paid to the department or the allocated
28 amount of the settling party's liability, whichever is less.
29 A settlement shall not otherwise affect the department's
30 claim under sections 507 or 1101.
19870H1852B3585 - 70 -
1 (2) A person who has resolved its liability to the
2 department in an administrative or judicially approved
3 settlement shall not be liable for claims for contribution
4 regarding matters addressed in the settlement unless the
5 terms of the settlement provide otherwise. The settling party
6 may seek contribution from a nonsettling party to recover the
7 consideration paid in excess of its allocated share of
8 liability as determined by the court or the board.
9 (3) When the department has obtained less than complete
10 relief from a person who has resolved its liability to the
11 department in an administrative or judicially approved
12 settlement, the department may bring an action against a
13 person who has not so resolved its liability. A nonsettling
14 party may seek contribution from any other nonsettling party
15 or any settling party as allowed under this section.
16 (d) Federal funds; cooperative agreements.--The Commonwealth
17 shall actively seek to obtain Federal funds to which it is
18 entitled under the Federal Superfund Act and may take actions
19 necessary to enter into contractual or cooperative agreements
20 under section 104(c)(3) and (d)(1) of the Federal Superfund Act
21 (42 U.S.C. § 9604(c)(3) and (d)(a)).
22 Section 706. De minimis settlements.
23 (a) Authorization.--The department may enter into a de
24 minimis settlement with any person or group of persons who have
25 demonstrated to the department's satisfaction that the following
26 conditions have been met:
27 (1) The volume of hazardous substances contributed by
28 that party to the site is minimal in comparison to the volume
29 of hazardous substances contributed at the site by all known
30 and financially viable responsible persons.
19870H1852B3585 - 71 -
1 (2) The remaining responsible persons have sufficient
2 resources to implement the response action proposed by the
3 department either alone or in combination with funds made
4 available by the department under section 902(a)(3).
5 (3) The persons seeking the de minimis settlement <--
6 provide an amount which is significantly greater than the
7 cost of their individual contribution as a percentage of the
8 volume contributed to the site cleanup.
9 (4) The entry of a de minimis settlement will expedite
10 the implementation of the remedial response. A de minimis
11 settlement may provide that the parties to the settlement
12 will have no further responsibility for the release which is
13 addressed by the proposed remedial action.
14 (b) Discretion.--The decision to enter into a de minimis
15 settlement is within the sole discretion of the department. No
16 person has a right to participate in a de minimis settlement and
17 the department's decision whether or not to enter into a
18 settlement shall not be deemed to be a final action subject to
19 review under Title 2 of the Pennsylvania Consolidated Statutes
20 (relating to administrative law and procedure) or section 1921-A
21 of the act of April 9, 1929 (P.L.177, No.175), known as The
22 Administrative Code of 1929.
23 (B) DE MINIMIS LIABILITY.--ANY PERSON WHOSE CONTRIBUTION TO <--
24 THE SITE IS MINIMAL IN BOTH AMOUNT AND TOXIC OR OTHER HAZARDOUS
25 EFFECT, IN COMPARISON TO OTHER HAZARDOUS SUBSTANCES AT THE SITE,
26 SHALL BE LIABLE ONLY FOR HIS PROPORTIONAL SHARE OF RESPONSE
27 COSTS AND DAMAGES ASSESSED UNDER SECTION 702. UPON PAYMENT OF
28 SUCH PERSON'S SHARE, SAID PERSON SHALL BE ENTITLED TO A SPECIAL
29 COVENANT NOT TO SUE.
30 Section 707. Nonbinding allocation of liability.
19870H1852B3585 - 72 -
1 Within 120 days of the request of any responsible person, the
2 department shall make a nonbinding allocation of responsibility
3 among the known responsible persons. The request shall not
4 prohibit or delay any action authorized under this act. The
5 department's nonbinding allocation shall not be deemed to be a
6 final action subject to review under Title 2 of the Pennsylvania
7 Consolidated Statutes (relating to administrative law and
8 procedure) or section 1921-A of the act of April 9, 1929
9 (P.L.177, No.175), known as The Administrative Code of 1929, nor
10 shall it confer a right or duty upon the department or any
11 person.
12 Section 708. Voluntary acceptance of responsibility.
13 A responsible person who voluntarily undertakes a response <--
14 action approved by the department shall not be liable for any
15 further response action provided that:
16 (1) The responsible person completes the remedial
17 response approved by the department.
18 (2) The responsible person demonstrates that the
19 remedial response taken is preventing any release of
20 hazardous substances from the site.
21 ANY PERSON WHO VOLUNTARILY ACCEPTS RESPONSIBILITY UNDER <--
22 SECTION 701 AND AGREES TO PAY HIS PROPORTIONATE SHARE OF THE
23 RESPONSE COSTS AND DAMAGES LISTED IN SECTION 702 SHALL NOT BE
24 LIABLE TO THE DEPARTMENT, OR TO ANY OTHER PERSON, FOR ANY CLAIMS
25 IN EXCESS OF THAT PERSON'S PROPORTIONATE LIABILITY.
26 Section 709. Mediation.
27 Upon the request of any responsible person, the department
28 may appoint an independent mediator recognized by the American
29 Arbitration Association to resolve any dispute among the
30 responsible persons. The expenses of the mediator shall be paid
19870H1852B3585 - 73 -
1 by the parties to the mediation. Any agreement reached during
2 the mediation shall be binding upon the parties to the
3 agreement, and shall create a presumption in favor of the
4 parties as to all matters addressed by the agreement. This <--
5 presumption shall operate against any responsible person who
6 fails after notice, to participate in the mediation. The
7 mediation shall not prohibit or delay any action authorized by
8 this act.
9 CHAPTER 9
10 FUND
11 Section 901. Fund.
12 (a) Establishment.--The Hazardous Sites Cleanup Fund, as
13 established in section 602.3 of the act of March 4, 1971 (P.L.6,
14 No.2), known as the Tax Reform Code of 1971, shall be a special
15 fund administered by the department and shall not be subject to
16 the act of July 13, 1987 (P.L.340, No.64), entitled "An act
17 providing for the establishment, funding and operation of a
18 special restricted receipt account within the General Fund to
19 support the establishment and operation of a Statewide judicial
20 computer system; providing for annual appropriations from the
21 restricted funds; and providing for the payment of a portion of
22 all fines, fees and costs collected by the judiciary into the
23 restricted receipt account."
24 (b) Appropriation.--Money placed in the fund is appropriated
25 to the department for the purposes set forth in this section.
26 The department shall annually submit to the Governor for
27 approval estimates of amounts to be expended under this act.
28 (c) Funds.--Money from the following sources shall be
29 deposited in the fund:
30 (1) Proceeds from hazardous waste transportation and
19870H1852B3585 - 74 -
1 management fees imposed by section 903, including interest
2 and penalties.
3 (2) Money recovered by the Commonwealth under sections
4 507 and 1101.
5 (3) Interest attributable to investment of money
6 deposited in the fund.
7 (4) Money appropriated by the General Assembly for
8 implementation of this act.
9 (5) Money recovered by the Commonwealth pursuant to a
10 cost recovery action under the Federal Superfund Act.
11 (6) Money received from the Federal Government under the
12 Federal Superfund Act.
13 (7) All revenues collected pursuant to section 602.3 of
14 the Tax Reform Code of 1971.
15 (8) All fees collected under sections 903 and 904 <--
16 SECTION 903. <--
17 (9) Funds available from appropriations for the same and
18 similar purposes.
19 Section 902. Expenditures from fund.
20 (a) Purposes.--The department shall expend money in the fund
21 for purposes including, but not limited to:
22 (1) Preparation by the department or its agents for
23 taking response actions, which include emergency responses,
24 investigations, testing activities, contracting, excavation,
25 administrative costs and enforcement efforts relating to the
26 release or threatened release of hazardous substances or
27 contaminants.
28 (2) Response actions taken or authorized by the
29 department, including related enforcement and compliance
30 efforts and the payment of the State share of the cost of
19870H1852B3585 - 75 -
1 remedial responses which may be carried out under an
2 agreement or contract with the Federal Government pursuant to
3 the Federal Superfund Act.
4 (3) Participation in response activities to the extent
5 the department, in its discretion, finds necessary or
6 appropriate, to carry out the purposes of this act. The
7 department may also use the fund to promote voluntary
8 cleanups by participating in mixed funding settlements with
9 potentially responsible persons.
10 (4) Emergency responses, including response to spills
11 and other uncontrolled releases and their cleanup.
12 (5) Reimbursement to a private party for expenditures
13 made from the effective date of this act to provide
14 alternative water supplies deemed necessary by the department
15 to protect the public health from contamination resulting
16 from the release of a hazardous substance or contaminant.
17 (6) Replacement of public or private water supplies
18 deemed necessary by the department to protect the public
19 health from contamination resulting from the release of a
20 hazardous substance or contaminant.
21 (7) Rehabilitation, restoration or acquisition of
22 natural resources to remedy injuries or losses to natural
23 resources resulting from the release of a hazardous substance
24 or contaminant.
25 (8) Grants by the department to demonstrate alternatives
26 to land disposal of hazardous waste, including reduction,
27 separation, pretreatment, processing and resource recovery
28 for education of persons involved in regulating and handling
29 hazardous substances.
30 (9) Intervention and environmental mediation to
19870H1852B3585 - 76 -
1 facilitate cleanup of hazardous sites.
2 (10) State matching funds required under the Federal
3 Superfund Act for the response of a site on the National
4 Priority List established under the Federal Superfund Act.
5 (11) Studies of potential or actual human health effects
6 from the release or potential release of hazardous substances
7 at individual sites, including, but not limited to, studies
8 of potential pathways of human exposure, the size and
9 potential susceptibility of the community within the likely
10 pathways of exposure, the comparison of expected health
11 effects associated with identified hazardous substances and
12 available recommended exposure or tolerance limits for the
13 hazardous substances, the comparison of existing morbidity
14 and mortality data on diseases that may be associated with
15 the observed levels of exposure and epidemiological and
16 clinical studies.
17 (12) Grants provided to municipalities under section 511 <--
18 510.
19 (13) Reimbursement of expenses under section 505(f).
20 (b) Annual report.--Beginning October 1, 1988, and annually
21 thereafter, the secretary shall transmit to the General Assembly
22 a report concerning activities and expenditures made pursuant to
23 this chapter for the preceding State fiscal year. Included in
24 this report shall be information concerning all revenues and
25 receipts deposited into the Hazardous Site Cleanup Fund, all
26 expenditures, including, but not limited to, expenditures for
27 personnel, operating expenses, the purchase of fixed assets,
28 grants and subsidies, other major objects of expenditures where
29 appropriate, and information detailing the department's efforts
30 to obtain contributions for response actions from potentially
19870H1852B3585 - 77 -
1 responsible parties and a listing of sites where mixed funding
2 as described in section 902(a)(3) was utilized for cleanup. The
3 secretary shall also supply information on both authorized and
4 filled complement and information concerning program activities,
5 including, but not limited to:
6 (1) The number of response actions initiated and
7 completed, and the costs incurred, in the aggregate and for
8 each action.
9 (2) The number of public or private water supply
10 replacements, and the costs incurred.
11 (3) Expenditures for the rehabilitation, restorations or
12 acquisition of natural resources.
13 (4) Expenditures for intervention and environmental
14 mediation.
15 (5) The number of Federal Superfund sites in which the
16 Commonwealth participates in response activities, and the
17 State matching costs incurred.
18 (6) The number of health effect studies undertaken, and
19 the costs incurred.
20 (7) The number of grants provided to municipalities
21 under section 511 510, and the amounts granted. <--
22 (8) The number of reimbursements of expenses under
23 section 505(f), and the amounts reimbursed.
24 (c) Health study report.--Upon completion of health effect
25 studies performed pursuant to subsection (a)(11), copies of the
26 findings and any recommendations of such studies shall be
27 transmitted to the General Assembly and the governing bodies of
28 the affected communities. Except for personal health records of
29 individuals, such studies shall be public information, and the
30 department shall provide copies to any person upon request.
19870H1852B3585 - 78 -
1 Section 903. Hazardous waste transportation and management fees.
2 (a) Assessment.--Fees shall be assessed for the
3 transportation and management of hazardous waste in accordance
4 with this section. TO CARRY OUT THE PURPOSES OF THIS ACT AND IN <--
5 ORDER TO CARRY OUT THE NATIONAL AND STATE POLICIES TO MINIMIZE
6 LAND DISPOSAL OF HAZARDOUS WASTE BY ENCOURAGING PROPERLY
7 CONDUCTED RECYCLING AND REUSE, THE FEES LEVIED UNDER THIS
8 SECTION SHALL NOT BE IMPOSED ON:
9 (1) HAZARDOUS WASTE WHICH IS RECYCLABLE MATERIAL UNDER
10 40 CFR § 261.6 AND SUCCESSOR FEDERAL AND STATE REGULATIONS
11 AND WHICH IS SENT TO A VERIFIED RECYCLING FACILITY FOR USE,
12 REUSE OR RECLAMATION RECYCLING; AND
13 (2) HAZARDOUS WASTE GENERATED IN THE PROCESS OF
14 RECYCLING RECYCLABLE MATERIALS DESCRIBED IN 40 CFR § 261.6
15 AND ITS SUCCESSOR FEDERAL AND STATE REGULATIONS, AND SO
16 VERIFIED BY THE DEPARTMENT:
17 PROVIDED, THAT ANY HAZARDOUS WASTE GENERATED IN THE RECYCLING
18 PROCESS IS DISPOSED OF AT A PERMITTED DISPOSAL FACILITY. ALL
19 VERIFICATIONS REFERRED TO IN THIS SUBSECTION SHALL BE IN WRITING
20 AND APPROVED BY THE DEPARTMENT.
21 (b) Transportation fee.--A transporter of hazardous waste
22 shall be assessed a transportation fee for hazardous waste
23 transported within this Commonwealth, whether originating in-
24 State or out-of-State. For purposes of computing the fee, each
25 shipment, requiring the use of a hazardous waste manifest, to or
26 from a PENNSYLVANIA hazardous waste facility, or between two <--
27 PENNSYLVANIA hazardous waste facilities, shall be considered a <--
28 discrete transportation activity and shall be subject to the
29 fee.
30 (c) Management fee.--
19870H1852B3585 - 79 -
1 (1) The operator of a hazardous waste management
2 facility IN PENNSYLVANIA shall be assessed a management fee <--
3 for hazardous waste stored, treated or disposed of at a
4 facility. No management fee shall be charged for hazardous
5 wastes which are reused or recycled in accordance with
6 department regulations. For purposes of this paragraph,
7 incineration shall be considered a form of treatment rather
8 than disposal.
9 (2) A generator who disposes of hazardous waste at the
10 site at which it was generated or at a captive disposal
11 facility IN PENNSYLVANIA shall be assessed a fee for all <--
12 hazardous waste disposed.
13 (3) No management fee shall be assessed for hazardous
14 waste storage or treatment at the site at which it was
15 generated or at a captive facility IN PENNSYLVANIA. <--
16 (4) No management fee shall be charged for waste stored
17 prior to recycling at a legitimate commercial recycling
18 facility.
19 (d) Rates.--The following rates shall apply unless the
20 secretary adjusts the fee schedule in accordance with subsection
21 (g):
22 (1) Transportation of hazardous waste (EXCEPT AS <--
23 PROVIDED IN PARAGRAPH (2)) - $3 per ton.
24 (2) TRANSPORTATION OF HAZARDOUS WASTE RESULTING FROM THE <--
25 RECYCLING OF LEAD ACID BATTERIES - $1.50 PER TON.
26 (2) (3) Storage of hazardous waste at a commercial <--
27 hazardous waste management facility - $2 per ton.
28 (3) (4) Treatment or incineration of hazardous waste at <--
29 a commercial hazardous waste management facility - $5 per
30 ton.
19870H1852B3585 - 80 -
1 (4) (5) Disposal of hazardous waste at a commercial <--
2 disposal facility - $12 per ton.
3 (5) (6) Disposal of hazardous waste on the site at which <--
4 it was generated or at a captive facility - $8 per ton.
5 (e) Conversion.--In the event that any hazardous waste is
6 measured in units other than tonnage, the fee shall be levied on
7 a conversion to tonnage determined by the department.
8 (f) Cumulative nature.--
9 (1) The transportation and management fees are
10 cumulative.
11 (2) When several management activities occur at the same
12 facility, the operator shall be assessed only one management
13 fee FOR EACH QUANTITY OF WASTE, which shall be the highest <--
14 rate of the management activities involved.
15 (3) However, when treatment or incineration prior to
16 disposal results in a reduction in the tonnage of waste
17 requiring disposal, the operator shall be assessed the
18 disposal management fee for the waste requiring disposal
19 after treatment or incineration and the treatment management
20 fee for the rest of the waste which underwent treatment.
21 (g) Adjustments.--The secretary may, by regulation, adjust
22 the rates as appropriate in accordance with the following
23 formula:
24 (1) The fees shall be calculated and rates adjusted to
25 collect projected annual revenues of $5,000,000 plus the
26 reasonably projected administrative cost of collecting the
27 fee.
28 (2) Management fee rates shall encourage preferred
29 hazardous waste management practices by establishing four fee
30 categories with graduated fee schedule. The fee categories
19870H1852B3585 - 81 -
1 from lowest rate per ton to highest rate per ton shall be:
2 (i) Hazardous waste stored at a hazardous waste
3 management facility.
4 (ii) Hazardous waste treated or incinerated at a
5 hazardous waste management facility.
6 (iii) Hazardous waste disposed of at a hazardous
7 waste disposal facility at the site where the waste was
8 generated or at a captive disposal facility.
9 (iv) Hazardous waste disposed of at a commercial
10 hazardous waste disposal facility.
11 (3) No fee shall be charged for hazardous wastes which
12 are recycled or reused in accordance with the department's
13 regulations.
14 (4) The department may exclude small quantity generators
15 from the fees.
16 (h) Annual disposal report.--
17 (1) By March 1, 1989, and by March 1 of each year
18 thereafter, a person who submitted for off-site disposal or
19 who disposed of on site more than 500 pounds of hazardous
20 waste in this Commonwealth during the preceding calendar year
21 shall report to the department the total amount of hazardous
22 waste which that person has submitted for disposal or
23 disposed of in this Commonwealth during the preceding
24 calendar year. This subsection does not apply to a person who
25 is already providing this information to the department.
26 (2) The total amount of hazardous waste reported under
27 this subsection shall be the total weight, measured in tons,
28 of all components of the waste in the form in which the waste
29 existed at the time of submission for disposal or at the time
30 of disposal.
19870H1852B3585 - 82 -
1 (3) A person who fails to file the report required by
2 this subsection shall be liable for a civil penalty not to
3 exceed $500 for each day the violation continues. A person
4 who knowingly fails to file the report commits a misdemeanor
5 of the third degree and shall, upon conviction, be sentenced
6 to pay a fine of not more than $25,000 or to imprisonment for
7 not more than one year, or both.
8 (I) WASTE FROM CLEANUP.--THE FEES ASSESSED PURSUANT TO THIS <--
9 SECTION FOR THE TRANSPORTATION, MANAGEMENT OR AUTHORIZED
10 DISPOSAL OF HAZARDOUS WASTE SHALL NOT APPLY TO HAZARDOUS WASTE
11 THAT IS DERIVED FROM THE CLEANUP OF A SITE PURSUANT TO THIS ACT,
12 THE FEDERAL SUPERFUND ACT, THE SOLID WASTE DISPOSAL ACT (PUBLIC
13 LAW 89-272, 42 U.S.C. § 6901 ET SEQ.) OR THE ACT OF JULY 7, 1980
14 (P.L.380, NO.97), KNOWN AS THE SOLID WASTE MANAGEMENT ACT.
15 Section 904. Contingency surcharge. <--
16 In the event the total amount appropriated from the General
17 Fund for the hazardous waste control program and Federal
18 superfund projects is less than $25,000,000, one of the
19 surcharges established in paragraphs (1) and (2), in addition to
20 other fees contained in this section, shall be levied.
21 (1) On all hazardous waste generated in this
22 Commonwealth, except hazardous waste covered by paragraph
23 (2), a surcharge fee in the amount of $7.50 per ton shall be
24 paid to the fund. In the event that any hazardous waste is
25 measured by other than tonnage, the surcharge shall be levied
26 on the equivalent thereof as shall be determined by the
27 department. Each generator of hazardous waste shall, on or
28 before the 20th day of the month following the close of each
29 tax period, render an accounting and record of the total
30 waste generated and stored or disposed of in that period on
19870H1852B3585 - 83 -
1 such forms as the department may require and make full
2 payment of the surcharge in a manner to be prescribed by the
3 department.
4 (2) On all hazardous waste generated and treated, reused
5 or recycled in this Commonwealth, a surcharge fee in the
6 amount of $2.50 per ton of waste generated and treated,
7 reused or recycled, shall be paid to the fund. In the event
8 that any hazardous waste is measured by other than tonnage,
9 the surcharge shall be levied on the equivalent thereof as
10 shall be determined by the department. Each generator of
11 hazardous waste shall, on or before the 20th day of the month
12 following the close of each tax period, render an accounting
13 and record of the total waste generated and treated, reused
14 or recycled in that period on such forms as the department
15 may require and make full payment of the surcharge in a
16 manner to be prescribed by the department.
17 (3) To carry out the purposes of this act and in order
18 to carry out the National and State policies to minimize land
19 disposal of hazardous waste by encouraging properly conducted
20 recycling and reuse, the surcharge fee levied under paragraph
21 (2) shall be levied on hazardous waste which is recyclable
22 material under 40 CFR § 261.6 and successor Federal and State
23 regulations and which is sent by the generator to a verified
24 recycling facility for recycling or reuse; and the surcharge
25 levied under paragraph (2) shall not apply to waste generated
26 in the process of recycling recyclable materials listed in 40
27 CFR § 261.6(a)(2) and (3) and its successor Federal and State
28 regulations, and so verified by the department: Provided,
29 That any hazardous waste generated in the recycling process
30 is disposed of at a permitted disposal facility. All
19870H1852B3585 - 84 -
1 verifications referred to in this paragraph shall be in
2 writing and approved by the department.
3 (4) The surcharge fee levied under paragraphs (1) and
4 (2) shall not apply to waste specifically excluded as a
5 hazardous waste under 25 Pa. Code § 75.261(c) of the
6 department's regulations and to waste for which disposal is
7 carried on as a point source discharge pursuant to and in
8 compliance with a valid permit issued under the act of June
9 22, 1937 (P.L.1987, No.394), known as The Clean Streams Law,
10 and under section 402 of the Federal Water Pollution Control
11 Act, as amended (86 Stat. 880).
12 (5) The surcharge fees levied under paragraphs (1) and
13 (2) shall not apply to hazardous waste retrieved or created
14 and which must be disposed of due to the remediation of an
15 abandoned hazardous waste site.
16 (6) Following each quarterly reporting date, the
17 secretary shall certify the amount deposited in the fund
18 during the quarter and the cumulative amount collected since
19 the start of the current calendar year. If the secretary
20 certifies that the total annual amount collected as of the
21 end of any quarter equals or exceeds $25,000,000, no
22 surcharge shall be collected for the remainder of the year.
23 Section 905 904. Loan fund. <--
24 (a) Establishment.--There is established a separate account
25 in the State Treasury to be known as the Hazardous Sites Loan
26 Fund, which shall be a special fund administered by the Economic <--
27 Development Partnership DEPARTMENT OF COMMERCE. <--
28 (b) Purpose.--In the case of a release or threatened release
29 of hazardous substances from a site for which the department has
30 identified no more than two persons as potentially liable under
19870H1852B3585 - 85 -
1 section 702, such persons may be eligible, upon written
2 application to the Economic Development Partnership DEPARTMENT <--
3 OF COMMERCE, to receive long-term, low-interest loans in an
4 amount sufficient to fund all or a portion of the response costs
5 at the site. The Economic Development Partnership DEPARTMENT OF <--
6 COMMERCE shall promulgate regulations establishing eligibility
7 criteria for the loans. As part of this effort, the Economic <--
8 Development Partnership Board DEPARTMENT OF COMMERCE shall <--
9 include a determination of the availability of other sources of
10 funds at reasonable rates to finance all or a portion of the
11 response action and the need for board assistance to finance the
12 response action.
13 (c) Funds.--In addition to any funds as may be appropriated
14 by the General Assembly, at least 2% of the funds raised
15 annually by the assessments imposed by section 903 shall be
16 deposited into the loan fund.
17 (d) Annual report.--Beginning October 1, 1988, and annually
18 thereafter, the Economic Development Partnership DEPARTMENT OF <--
19 COMMERCE shall transmit to the General Assembly a report
20 concerning activities and expenditures made pursuant to this
21 section for the preceding State fiscal year. Included in this
22 report shall be information concerning all revenues and receipts
23 deposits into the loan fund and all loans extended to eligible
24 applicants.
25 (e) Sunset.--The loan fund shall cease to exist on June 30,
26 1992, unless it is reestablished by action of the General
27 Assembly. Any funds remaining in the loan fund on June 30, 1992,
28 shall lapse to the Hazardous Sites Cleanup Fund. Money received
29 by the Economic Development Partnership DEPARTMENT OF COMMERCE <--
30 as repayment of outstanding loans after June 30, 1992, shall
19870H1852B3585 - 86 -
1 lapse to the Hazardous Sites Cleanup Fund.
2 SECTION 905. RECYCLING EQUIPMENT TAX CREDIT. <--
3 (A) AMOUNT.--A TAXPAYER WHO PURCHASES OR LEASES RECYCLING
4 EQUIPMENT TO BE USED EXCLUSIVELY WITHIN THIS COMMONWEALTH SHALL
5 BE ENTITLED TO A CREDIT AGAINST THE TAXES IMPOSED UNDER ARTICLES
6 IV AND VI OF THE ACT OF MARCH 4, 1971 (P.L.6, NO.2), KNOWN AS
7 THE TAX REFORM CODE OF 1971, IN AN AMOUNT EQUAL TO 50% OF THE
8 INSTALLED COST OF THE RECYCLING EQUIPMENT. THE AMOUNT OF CREDIT
9 CLAIMED IN THE TAX YEAR DURING WHICH THE RECYCLING EQUIPMENT IS
10 PURCHASED OR LEASED SHALL NOT EXCEED 20% OF THE AMOUNT OF THE
11 TOTAL CREDIT ALLOWABLE AND SHALL NOT EXCEED 50% OF THE TOTAL OF
12 THE TAX LIABILITY WHICH WOULD BE OTHERWISE DUE.
13 (B) APPLICATION PROCEDURE.--APPLICATION FOR A TAX CREDIT
14 MUST BE MADE TO THE DEPARTMENT OF REVENUE BY APRIL 15 OF THE
15 YEAR FOLLOWING THE CALENDAR YEAR IN WHICH THE RECYCLING
16 EQUIPMENT IS PURCHASED OR LEASED. THE APPLICATION MUST INCLUDE A
17 DESCRIPTION OF EACH ITEM OF RECYCLING EQUIPMENT PURCHASED OR
18 LEASED, THE DATE OF PURCHASE OR LEASE, THE INSTALLED COST OF THE
19 RECYCLING EQUIPMENT, A STATEMENT OF WHERE THE RECYCLING
20 EQUIPMENT IS TO BE USED AND OTHER INFORMATION AS THE DEPARTMENT
21 MAY REQUIRE. THE SECRETARY OF REVENUE SHALL REVIEW ALL
22 APPLICATIONS RECEIVED TO DETERMINE WHETHER EXPENDITURES FOR
23 WHICH CREDITS ARE REQUESTED MEET THE REQUIREMENTS OF THIS
24 SECTION AND SHALL ADVISE THE TAXPAYER OF THE AMOUNT OF CREDIT
25 FOR WHICH THE TAXPAYER IS ELIGIBLE UNDER THIS SECTION.
26 (C) CARRYOVER.--TAX CREDITS AWARDED PURSUANT TO THIS SECTION
27 MAY BE UTILIZED IN THE TAXABLE YEAR THE RECYCLING EQUIPMENT IS
28 PURCHASED OR LEASED AND, TO EXTENT NOT UTILIZED, CARRIED OVER
29 FOR UP TO FOUR ADDITIONAL TAXABLE YEARS BY THE TAXPAYER, AND
30 SHALL THEREAFTER EXPIRE.
19870H1852B3585 - 87 -
1 (D) APPLICABILITY.--THE CREDIT ALLOWED BY THIS SECTION SHALL
2 APPLY TO MACHINERY AND EQUIPMENT WHICH IS PUT IN PLACE PRIOR TO
3 DECEMBER 31, 1993.
4 (E) EXPIRATION.--THIS SECTION SHALL EXPIRE DECEMBER 31,
5 1993.
6 CHAPTER 11
7 ENFORCEMENT AND REMEDIES
8 Section 1101. Public nuisances.
9 A release of a hazardous substance or a violation of any
10 provision of this act, a regulation of the department, an order
11 of the department or a response approved by the department shall
12 constitute a public nuisance. Any person allowing such a release
13 or committing such a violation shall be liable for the response
14 costs caused by the release or the violation. The board and any
15 court of competent jurisdiction is hereby given jurisdiction
16 over actions to recover the response costs.
17 Section 1102. Enforcement orders.
18 (a) General rule.--The department shall issue orders to
19 persons as it deems necessary to aid in the enforcement of the
20 provisions of this act. Orders shall include but shall not be
21 limited to orders requiring response actions, studies and access
22 and orders modifying, suspending or ceasing a response action by
23 a responsible party even though the response may have been
24 initially approved by the department. An order issued under this
25 section shall take effect upon notice unless the order specifies
26 otherwise. The power of the department to issue an order under
27 this section is in addition to any other remedy which may be
28 afforded to the department under this act or any other statute.
29 (b) Types.--The department, when it deems necessary for the
30 response to a release or for the protection of public health,
19870H1852B3585 - 88 -
1 safety or welfare or the environment, shall order, orally or in
2 writing, a person to immediately initiate, continue, suspend or
3 modify a response action; conduct investigations; or provide
4 access to property or information. The order shall be effective
5 upon issuance and may only be superseded by further department
6 action or, after an appeal has been perfected, by the board
7 after notice and hearing. The order may require whatever
8 alternative response actions are necessary for the abatement of
9 the release. Within two business days after the issuance of the
10 oral order, the department shall issue a written order reciting
11 and modifying, where appropriate, the terms and conditions
12 contained in the oral order.
13 (c) Compliance.--It shall be the duty of any person to
14 proceed diligently to comply with an order issued under this
15 section. When the person fails to proceed diligently or fails to
16 comply with the order within the time specified, the person
17 shall be guilty of contempt and shall be punished by the court
18 in an appropriate manner. For this purpose, application may be
19 made by the department to the Commonwealth Court.
20 (d) Appeal.--An order issued under this section may be
21 appealed to the board under section 1921-A of the act of April
22 9, 1929 (P.L.177, No.175), known as The Administrative Code of
23 1929. An appeal to the board shall not act as a supersedeas.
24 Section 1103. Restraining violations.
25 (a) Department.--In addition to any other remedy provided in
26 this act, the department may institute a suit in equity in the
27 name of the Commonwealth, where a violation of law or nuisance
28 exists, for an injunction to restrain a violation of this act or
29 the regulations, standards or orders promulgated or issued
30 hereunder and to restrain the maintenance or threat of a public
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1 nuisance. In a proceeding under this subsection, the court
2 shall, upon motion of the Commonwealth, issue a prohibitory or
3 mandatory preliminary injunction when it finds that the
4 defendant is engaging in unlawful conduct as defined by this act
5 or is engaged in conduct which is causing immediate and
6 irreparable harm to the public. The Commonwealth shall not be
7 required to furnish bond or other security in connection with
8 the proceedings. In addition to an injunction, the court may
9 levy civil penalties under section 1104.
10 (b) Local government.--In addition to any other remedies
11 provided for in this act, upon relation of a district attorney
12 of an affected county or upon relation of the solicitor of an
13 affected municipality, an action in equity may be brought in a
14 court of competent jurisdiction for an injunction to restrain
15 any and all violations of this act or regulations promulgated
16 under it or to restrain a public nuisance or detriment to public
17 health, safety or welfare or the environment.
18 (c) Concurrent remedies.--The penalties and remedies
19 prescribed by this act shall be deemed concurrent. The existence
20 of or exercise of one remedy shall not prevent the department
21 from exercising any other remedy under this act, at law or in
22 equity.
23 (d) Jurisdiction.--Actions instituted under this section may
24 be filed in the appropriate court of common pleas or in the
25 Commonwealth Court. Actions may also be filed in a Federal Court
26 or administrative tribunal having jurisdiction over the matter.
27 Section 1104. Civil penalties.
28 (a) General rule.--In addition to proceeding with any other
29 remedy available at law or in equity for a violation of a
30 provision of this act, a regulation or order of the department
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1 or a term or condition of a response approved by the department,
2 the department may assess a civil penalty upon a person for the
3 violation. A penalty may be assessed whether or not the
4 violation was willful or negligent. In determining the amount of
5 the penalty, the department shall consider the willfulness of
6 the violation; damage to air, water, land or other natural
7 resources of this Commonwealth or their uses; cost of
8 restoration and abatement; savings resulting to the person in
9 consequence of such violation; and other relevant factors.
10 (b) Procedure.--When the department proposes to assess a
11 civil penalty, it shall inform the person of the proposed amount
12 of the penalty. The person charged with the penalty shall then
13 have 30 days to pay the proposed penalty in full. When the
14 person wishes to contest either the amount of the penalty or the
15 fact of the violation, the person must, within the 30-day
16 period, file an appeal of the action with the board. Failure to
17 appeal within 30 days shall result in a waiver of all legal
18 rights to contest the violation or the amount of the penalty.
19 (c) Amount.--The maximum civil penalty which may be assessed
20 under this section is $25,000 per offense. Each violation for
21 each separate day and each violation of a provision of this act,
22 a regulation under this act, an order of the department or any
23 term or condition of an approved response shall constitute a
24 separate and distinct offense under this section.
25 (d) Minimum.--A person who fails to comply with an order
26 issued under section 503 shall be subject to a minimum penalty
27 of $5,000 for each day the order is violated.
28 (e) Additional penalties.--The Environmental Quality Board
29 shall have the authority to establish, by regulation, specific
30 major violations and additional mandatory minimum civil
19870H1852B3585 - 91 -
1 penalties.
2 Section 1105. Criminal penalties.
3 (a) Falsity.--
4 (1) A person may not knowingly make a false statement or
5 representation in an application, record, report, plan,
6 proposal or other document which:
7 (i) relates to the actual or threatened release of a
8 hazardous substance or to a response to the actual or
9 threatened release of a hazardous substance; or
10 (ii) is filed, submitted, maintained or used for
11 purposes of compliance with this act.
12 (2) A person who violates paragraph (1) commits a
13 misdemeanor of the third degree and shall, upon conviction,
14 be sentenced to pay a fine of not less that $1,000 and not
15 more than $25,000 per day for each violation or to
16 imprisonment for a period of not more than one year, or both.
17 (b) Altering response action.--A person who, without written
18 authorization from the department, alters or modifies a response
19 action approved or undertaken by the department commits a
20 summary offense and shall, upon conviction, be sentenced to pay
21 a fine of not less than $100 and not more than $1,000 for each
22 day on which the offense occurs or, in default of payment of the
23 fine, to imprisonment for not more than 90 days.
24 (c) Obstruction.--A person who refuses, hinders, obstructs,
25 delays or threatens any agent or employee of the department in
26 the course of performance of a duty under this act, including
27 but not limited to entry and inspection under any circumstances,
28 commits a summary offense and shall, upon conviction, be
29 sentenced to pay a fine of not less than $100 and not more than
30 $1,000 for each day on which the offense occurs or, in default
19870H1852B3585 - 92 -
1 of payment of the fine, to undergo imprisonment for not more
2 than 90 days.
3 (d) Intentional or negligent.--A person who intentionally or
4 negligently commits an offense under subsection (b) or (c)
5 commits a misdemeanor of the third degree and shall, upon
6 conviction, be sentenced to pay a fine of not less than $1,000
7 and not more than $25,000 for each day on which the offense
8 occurred or to undergo imprisonment for not more than one year,
9 or both.
10 Section 1106. Search warrants.
11 An agent or employee of the department may apply to any
12 Commonwealth official authorized to issue a search warrant for
13 the purposes of searching any property, building, premise, or
14 place, of seizing any book, record or other physical evidence,
15 of conducting tests, or of taking samples of any solid waste.
16 Such warrant shall be issued upon probable cause. It shall be
17 sufficient probable cause to show any of the following:
18 (1) The search, seizure, test or sampling is pursuant to
19 a general administrative plan to determine compliance with
20 this act.
21 (2) The agent or employee has reason to believe that a
22 violation of this act has occurred or may occur.
23 (3) The agent or employee has been refused access to the
24 property, building, premises or place, has been refused
25 possession of any book, record or physical evidence, or has
26 been prevented from conducting tests or taking samples.
27 (4) The employee has reason to believe that a release or
28 a threat of a release of a hazardous substance or contaminant
29 exists on the property or on a nearby property and that
30 testing and sampling are needed for determining the nature or
19870H1852B3585 - 93 -
1 extent of the release.
2 (5) The employee has reason to believe that there are
3 containers or impoundments on the property which are typical
4 of those used for containing or impounding hazardous
5 substances and that testing, sampling or the review of
6 records is necessary to determine whether hazardous
7 substances are present.
8 Section 1107. Existing and cumulative rights and remedies.
9 Nothing in this act shall be construed as estopping the
10 Commonwealth, a district attorney or solicitor or a municipality
11 from proceeding in courts of law or equity to abate releases
12 forbidden under this act, or to abate nuisances under existing
13 law. It is declared to be the purpose of this act to provide
14 additional and cumulative remedies to control the release of
15 hazardous substances within this Commonwealth. Nothing contained
16 in this act shall abridge or alter rights of action or remedies
17 in law or equity. No provision of this act, the granting of
18 approval under this act, nor an act done by virtue of this act
19 shall be construed as estopping the Commonwealth, persons or
20 municipalities in the exercise of their rights in law or in
21 equity; from proceeding in courts of law or equity to suppress
22 nuisances or to abate a pollution; or from enforcing common law
23 or statutory rights. No courts of this Commonwealth having
24 jurisdiction to abate public or private nuisances shall be
25 deprived of jurisdiction in an action to abate any private or
26 public nuisance because the nuisance constitutes pollution of
27 air or water or soil.
28 Section 1108. Unlawful conduct.
29 It shall be unlawful for a person to do any of the following:
30 (1) Cause or allow a release of a hazardous substance.
19870H1852B3585 - 94 -
1 (2) Alter or modify any response action which has been
2 approved by the department unless authorized in writing by
3 the department.
4 (3) Refuse, hinder, obstruct, delay or threaten an agent
5 or employee of the department in the course of performance of
6 a duty under this act, including, but not limited to, entry
7 and inspection under any circumstances.
8 (4) Cause or assist in the violation of any provision of
9 this act, a regulation of the department or an order of the
10 department.
11 (5) Fail to make a timely payment of the hazardous waste
12 transportation and management fee.
13 (6) Hinder, obstruct, prevent or interfere with host
14 municipalities or their personnel in the performance of any
15 duty related to the collection of the hazardous waste
16 transportation and management fees.
17 (7) Cause or allow release of a contaminant in a manner
18 that creates a public nuisance.
19 Section 1109. Presumption of law for civil and administrative
20 proceedings.
21 It shall be presumed as a rebuttable presumption of law that
22 a person who causes or allows the release of a hazardous
23 substance shall be liable, without proof of fault, negligence,
24 or causation, for all damages, contamination or pollution within
25 2,500 feet of the perimeter of the area where the release has
26 occurred. This presumption may be overcome by clear and
27 convincing evidence that the person so charged did not
28 contribute to the damage, contamination or pollution.
29 Section 1110. Collection of fines and penalties.
30 Fines and penalties under this act shall be collectible in
19870H1852B3585 - 95 -
1 the manner provided by section 510 509. Upon collection they <--
2 shall be paid into the fund.
3 Section 1111. Right of citizen to intervene in proceedings.
4 A citizen of this Commonwealth having an interest which is or
5 may be adversely affected shall have the right, on his own
6 behalf, without posting bond, to intervene in any proceeding
7 brought under this act.
8 Section 1112. Whistleblower provisions.
9 (a) Adverse action prohibited.--No employer may discharge,
10 threaten or otherwise discriminate or retaliate against an
11 employee regarding the employee's compensation or terms,
12 conditions, location or privileges of employment because the
13 employee makes or is about to make a good faith report, verbally
14 or in writing, to the employer or appropriate authority an
15 instance of wrong doing under this act.
16 (b) Remedies.--The remedies, penalties and enforcement
17 procedures for violations of this section shall be as provided
18 in the act of December 12, 1986 (P.L.1559, No.169), known as the
19 Whistleblower Law.
20 (c) Definitions.--As used in this section, the following
21 words and phrases shall have the meanings given to them in this
22 subsection:
23 "Appropriate authority." A Federal, State or local
24 government body, agency or organization having jurisdiction over
25 criminal law enforcement, regulatory violations, professional
26 conduct or ethics, or waste; or a member, officer, agent,
27 representative or supervisory employee of the body, agency or
28 organization. The term includes, but is not limited to, the
29 office of Attorney General, the Department of the Auditor
30 General, the Treasury Department, the General Assembly and
19870H1852B3585 - 96 -
1 committees of the General Assembly having the power and duty to
2 investigate criminal law enforcement, regulatory violations,
3 professional conduct or ethics or waste.
4 "Employee." A person who performs a service for wages or
5 other renumeration under a contract of hire, written or oral,
6 express or implied, for an employer, whether or not the employer
7 is a public body.
8 "Employer." A person supervising one or more employees,
9 including the employee in question; a superior of that
10 supervisor; or an agent of a public body.
11 "Good faith report." A report of conduct defined in this act
12 as wrongdoing or waste which is made without malice or
13 consideration of personal benefit and which the person making
14 the report has reasonable cause to believe is true.
15 "Public body." All of the following:
16 (1) A State officer, agency, department, division,
17 bureau, board, commission, council, authority or other body
18 in the executive branch of State government.
19 (2) A county, city, township, regional governing body,
20 council, school district, special district or municipal
21 corporation, or a board, department, commission, council or
22 agency.
23 (3) Any other body which is created by Commonwealth or
24 political subdivision authority or which is funded in any
25 amount by or through Commonwealth or political subdivision
26 authority or a member or employee of that body.
27 "Waste." An employer's conduct or omissions which result in
28 substantial abuse, misuse, destruction or loss of funds or
29 resources belonging to or derived from Commonwealth or political
30 subdivision sources.
19870H1852B3585 - 97 -
1 "Whistleblower." A person who witnesses or has evidence of
2 wrongdoing or waste while employed and who makes a good faith
3 report of the wrongdoing or waste, verbally or in writing, to
4 one of the person's superiors, to an agent of the employer or to
5 an appropriate authority.
6 "Wrongdoing." A violation which is not of a merely technical
7 or minimal nature of a Federal or State statute or regulation,
8 of a political subdivision, ordinance or regulation or of a code
9 of conduct or ethics designed to protect the interest of the
10 public or the employer.
11 Section 1113. Notice of proposed settlement.
12 When a settlement is proposed in any proceeding brought under
13 this act, notice of the proposed settlement shall be sent to all
14 known responsible persons and published in the Pennsylvania
15 Bulletin and in a newspaper of general circulation in the area
16 of the release. The notice shall include the terms of the
17 settlement and the manner of submitting written comments during
18 a 60-day public comment period. The settlement shall become
19 final upon the filing of the department's response to the
20 significant written comments. The notice, the written comments
21 and the department's response shall constitute the written
22 record upon which the settlement will be reviewed. A person
23 adversely affected by the settlement may file an appeal to the
24 board. The settlement shall be upheld unless it is found to be
25 arbitrary and capricious on the basis of the administrative
26 record.
27 Section 1114. Limitation on action.
28 Notwithstanding the provisions of any other statute to the
29 contrary, actions for civil or criminal penalties under this act
30 or civil actions for releases of hazardous substances may be
19870H1852B3585 - 98 -
1 commenced at any time within a period of 20 years from the date
2 the unlawful conduct or release is discovered. Actions to
3 recover response costs may be commenced within six years of the
4 date those costs are incurred. The initial action to recover
5 response costs shall be controlling as to liability in all
6 subsequent actions.
7 Section 1115. Citizen suits.
8 (a) General rule.--A person who has experienced or is
9 threatened with personal injury or property damage as a result
10 of a release of a hazardous substance may file a civil action
11 against any person to prevent or abate a violation of this act
12 or of any order, regulation, standard or approval issued under
13 this act.
14 (b) Jurisdiction.--The courts of common pleas shall have
15 jurisdiction over any actions authorized under this section. No
16 action may be commenced under this section prior to 60 days
17 after the plaintiff has given notice to the department, to the
18 host municipality and to the alleged violator of this act, or of
19 any regulations or orders of the department under this act; nor
20 may such action be commenced when the department has commenced
21 and is diligently prosecuting a civil or criminal action in a
22 court of the United States or a state to require compliance with
23 the statute, permit, standard, regulation, condition,
24 requirement, prohibition or order. In any such civil action
25 commenced by the department, any person may intervene as a
26 plaintiff as a matter of right. The court may grant any
27 equitable relief; may impose a civil penalty under section 1104;
28 and may award litigation costs, including reasonable attorney
29 and witness fees, to the prevailing or substantially prevailing
30 party whenever the court determines such an award is
19870H1852B3585 - 99 -
1 appropriate.
2 (c) Departmental intervention.--The department may intervene
3 as a matter of right in any action authorized under this
4 section.
5 CHAPTER 13
6 MISCELLANEOUS
7 Section 1301. Studies.
8 The Department of Commerce shall within one year of the
9 effective date of the act complete a study to investigate the
10 use of the Pennsylvania Industrial Development Authority, the
11 Pennsylvania Economic Revitalization Fund and other economic
12 development grants and loans to encourage the reuse, recycling,
13 recovery, minimization and treatment which results in
14 detoxification of hazardous waste.
15 Section 1302. Repeals. <--
16 As much of subsection (a) as reads: "....through calendar
17 year 1991 and fiscal years beginning in 1991, and at the rate of
18 nine mills upon each dollar of the capital stock value as
19 defined in section 601(a) for the calendar year 1992 and fiscal
20 years beginning in 1992...." (2 occasions) and as much of
21 subsections (b)(1) and (e) as reads: "....through calendar year
22 1991 and fiscal years beginning in 1991, and at the rate of nine
23 mills for calendar year 1992 and fiscal years beginning in
24 1992...." of section 602 of the act of March 4, 1971 (P.L.6,
25 No.2), known as the Tax Reform Code of 1971, are repealed.
26 Section 1303 1302. Effective date. <--
27 This act shall take effect in 60 days.
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