SENATE AMENDED
PRIOR PRINTER'S NOS. 2321, 3341, 3428, PRINTER'S NO. 3632
3558, 3585
No. 1852 Session of 1987
INTRODUCED BY GEORGE, MANDERINO, FREEMAN, ARGALL, JAROLIN,
BOWLEY, LUCYK, WOZNIAK, FEE, LEVDANSKY, DOMBROWSKI, COLE,
KUKOVICH, COWELL, HAYDEN, HALUSKA, MORRIS, SHOWERS, McCALL,
PETRARCA, PRESSMANN, MURPHY, ARTY, LIVENGOOD, MRKONIC, ITKIN,
TRELLO, TIGUE, KOSINSKI, BELARDI, RYBAK, VAN HORNE, BATTISTO,
McHALE AND BROUJOS, OCTOBER 14, 1987
AS AMENDED ON THIRD CONSIDERATION, IN SENATE, JULY 5, 1988
AN ACT
1 Providing for the cleanup of hazardous waste sites; providing
2 further powers and duties of the Department of Environmental
3 Resources and the Environmental Quality Board; providing for
4 response and investigations for liability and cost recovery;
5 establishing the Hazardous Sites Cleanup Fund; PROVIDING A <--
6 TAX CREDIT; 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. HOST MUNICIPALITIES FUND. <--
4 SECTION 305 306. HAZARDOUS WASTE FACILITY SITING COMMISSION. <--
5 SECTION 306 307. POWERS AND DUTIES OF COMMISSION. <--
6 Chapter 5. Response and Investigation
7 Section 501. Response authorities.
8 Section 502. Priorities.
9 Section 503. Information gathering and access.
10 Section 504. Cleanup standards.
11 Section 505. Development and implementation of response
12 actions.
13 Section 506. Administrative record.
14 Section 507. Recovery of response costs.
15 Section 508. Administrative and judicial review of response
16 actions.
17 Section 509. Private cause of action. <--
18 Section 510. Superlien.
19 SECTION 509. LIEN. <--
20 Section 511 510. Evaluation grant. <--
21 Section 512 511. Acquisition of real property. <--
22 Section 513 512. After closure and conveyance of property. <--
23 Section 514 513. Contracting. <--
24 Chapter 7. Liability and Cost Recovery
25 Section 701. Responsible person.
26 Section 702. Scope of liability.
27 Section 703. Defenses to liability.
28 Section 704. Subrogation and insurance.
29 Section 705. Contribution.
30 Section 706. De minimis settlements.
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1 Section 707. Nonbinding allocation of liability.
2 Section 708. Voluntary acceptance of responsibility.
3 Section 709. Mediation.
4 Chapter 9. Fund
5 Section 901. Fund.
6 Section 902. Expenditures from fund.
7 Section 903. Hazardous waste transportation and management
8 fees.
9 Section 904. Contingency surcharge. <--
10 Section 905 904. Loan fund. <--
11 SECTION 905. RECYCLING EQUIPMENT TAX CREDIT. <--
12 Chapter 11. Enforcement and Remedies
13 Section 1101. Public nuisances.
14 Section 1102. Enforcement orders.
15 Section 1103. Restraining violations.
16 Section 1104. Civil penalties.
17 Section 1105. Criminal penalties.
18 Section 1106. Search warrants.
19 Section 1107. Existing and cumulative rights and remedies.
20 Section 1108. Unlawful conduct.
21 Section 1109. Presumption of law for civil and administrative
22 proceedings.
23 Section 1110. Collection of fines and penalties.
24 Section 1111. Right of citizen to intervene in proceedings.
25 Section 1112. Whistleblower provisions.
26 Section 1113. Notice of proposed settlement.
27 Section 1114. Limitation on action.
28 Section 1115. Citizen suits.
29 Chapter 13. Miscellaneous
30 Section 1301. Studies.
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1 Section 1302. Repeals. <--
2 Section 1303 1302. Effective date. <--
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 CHAPTER 1
6 PRELIMINARY PROVISIONS
7 Section 101. Short title.
8 This act shall be known and may be cited as the Hazardous
9 Sites Cleanup Act.
10 Section 102. Declaration of policy.
11 The General Assembly finds and declares as follows:
12 (1) The citizens of this Commonwealth have a right to
13 clean water and a healthy environment, and the General
14 Assembly has a responsibility to insure the protection of
15 that right.
16 (2) Hazardous substances which have been released into
17 the environment through improper disposal or other means pose
18 a real and substantial threat to the public health and
19 welfare of the residents of this Commonwealth and to the
20 natural resources upon which they rely.
21 (3) The cleanup of sites that are releasing or
22 threatening the release of hazardous substances into the
23 environment and the replacement of contaminated water
24 supplies protects the public health, preserves and restores
25 natural resources and is vital to the economic development of
26 this Commonwealth.
27 (4) When releases of hazardous substances contaminate
28 public water supplies, the replacement of those water
29 supplies is frequently beyond the resources of the people
30 affected.
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1 (5) Traditional legal remedies have not proved adequate
2 for preventing the release of hazardous substances into the
3 environment or for preventing the contamination of water
4 supplies. It is necessary, therefore, to clarify the
5 responsibility of persons who own, possess, control or
6 dispose of hazardous substances; to provide new remedies to
7 protect the citizens of this Commonwealth against the release
8 of hazardous substances; and to assure the replacement of
9 water supplies.
10 (6) Traditional methods of administrative and judicial
11 review have interfered with responses to the release of
12 hazardous substances into the environment. It is, therefore,
13 necessary to provide a special procedure which will postpone
14 both administrative and judicial review until after the
15 completion of the response action.
16 (7) The Federal Superfund Act provides numerous
17 opportunities for states to participate in the cleanup of
18 hazardous sites. It is in the interest of the citizens of
19 this Commonwealth that the Commonwealth be authorized to
20 participate in such cleanups and related activities to the
21 fullest extent.
22 (8) Many of the hazardous sites in this Commonwealth
23 which do not qualify for cleanup under the Federal Superfund
24 Act pose a substantial threat to the public health and
25 environment. Therefore, an independent site cleanup program
26 is necessary to promptly and comprehensively address the
27 problem of hazardous substance releases in this Commonwealth,
28 whether or not these sites qualify for cleanup under the
29 Federal Superfund Act.
30 (9) Extraordinary enforcement remedies and procedures
19870H1852B3632 - 5 -
1 are necessary and appropriate to encourage responsible
2 persons to cleanup hazardous sites and to deter persons in
3 possession of hazardous substances from careless or haphazard
4 management.
5 (10) Persons engaged in the transportation and
6 management of hazardous waste should contribute to the fund
7 through a hazardous waste management fee that is designed to
8 encourage and reward sound waste management practices such as
9 source reduction, recycling and on-site treatment.
10 (11) It is the intent of the General Assembly that the
11 department shall undertake such measures and steps as are
12 necessary to expedite the siting, review, permitting and
13 development of hazardous waste treatment and disposal
14 facilities within this Commonwealth, in order to protect
15 public health and safety, foster economic growth and protect
16 the environment.
17 (12) The following are the purposes of this act:
18 (i) Authorize the department to participate in the
19 investigation, assessment and cleanup of sites under the
20 Federal Superfund Act to the full extent provided by that
21 act.
22 (ii) Establish independent authority for the
23 department to conduct site investigations and
24 assessments; to provide for the cleanup of sites in this
25 Commonwealth that are releasing or threatening the
26 release of hazardous substances or contaminants into the
27 environment; to require the replacement of water supplies
28 contaminated by these substances; to take other
29 appropriate response actions and recover from responsible
30 persons its costs for conducting the responses.
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1 (iii) Establish the fund to provide to the
2 department the financial resources needed to plan and
3 implement a timely and effective response to the release
4 of hazardous substances and contaminants, including
5 emergency response actions, studies and investigations,
6 planning, remedial response, maintenance and monitoring
7 activities, replacement of water supplies and protection
8 of the public from the hazardous site.
9 (iv) Establish hazardous waste transportation and
10 management fees to encourage preferred hazardous waste
11 management practices and implement the hazardous waste
12 management hierarchy described in the hazardous waste
13 facilities plan and to generate revenues for the fund.
14 (v) Establish and maintain a cooperative State and
15 Federal program for the investigation and cleanup of
16 sites containing hazardous substances or contaminants and
17 for the replacement of affected water supplies and to
18 take other appropriate response actions.
19 (vi) Protect the public health, safety and welfare
20 and the natural resources of this Commonwealth from the
21 short-term and long-term effects of the release of
22 hazardous substances and contaminants into the
23 environment.
24 (vii) Provide a flexible and effective means to
25 implement and enforce the provisions of this act.
26 (viii) Encourage the siting of new hazardous waste
27 management facilities to properly store, treat and
28 dispose of hazardous materials.
29 (ix) Encourage responsible persons to voluntarily
30 perform response activities by enabling the department to
19870H1852B3632 - 7 -
1 enter into settlement agreements with responsible persons
2 to perform response activities that protect human health
3 and the environment; by enabling the department to enter
4 into settlement agreements with responsible persons to
5 settle a minor portion of response costs; and by
6 authorizing the department to utilize moneys from the
7 fund established by this act to enter into settlement
8 agreements that allow the department, when necessary to
9 achieve a cleanup, to pay for a portion of the costs
10 associated with response activities.
11 (X) IT IS IN THE PUBLIC INTEREST TO ELIMINATE <--
12 HAZARDOUS WASTE BY ENCOURAGING AND PROVIDING INCENTIVES
13 TO TAXPAYERS TO REDUCE THE VOLUME OF HAZARDOUS WASTE
14 MATERIALS PRODUCED, TRANSPORTED AND DISPOSED OF IN THIS
15 COMMONWEALTH BY PROVIDING TAX CREDITS TO TAXPAYERS WHO
16 PURCHASE OR LEASE AND INSTALL RECYCLING EQUIPMENT WHICH
17 IS USED EXCLUSIVELY FOR THE ELIMINATION OF SUCH MATERIALS
18 BY RECLAIMING THEM ON SITE AND CONVERTING THEM INTO
19 NONHAZARDOUS REUSABLE, RAW MATERIAL PRODUCTS.
20 Section 103. Definitions.
21 The following words and phrases when used in this act shall
22 have the meanings given to them in this section unless the
23 context clearly indicates otherwise:
24 "Act of God." An unanticipated grave natural disaster or
25 other natural phenomenon of an exceptional, inevitable and
26 irresistible character the effects of which could not have been
27 prevented or avoided by the exercise of due care or foresight.
28 "Alternative water supplies." Includes but is not limited to
29 drinking water and household water supplies.
30 "Board." The Environmental Hearing Board of the
19870H1852B3632 - 8 -
1 Commonwealth.
2 "Captive facility." A facility which is located upon lands
3 owned by a generator of hazardous waste and which is operated to
4 provide for the treatment or disposal solely of that generator's
5 hazardous waste.
6 "Claim." A demand in writing for a sum certain.
7 "Contaminant." Includes but is not limited to a substance <--
8 whose release is regulated under a statute administered by the
9 department or an element, substance, compound or mixture,
10 including disease-causing agents, which, after release into the
11 environment, may cause either of the following:
12 (1) In humans or other organisms or their offspring,
13 death; disease; behavioral abnormalities; cancer; genetic
14 mutation; physiological malfunctions, including malfunctions
15 in reproductions; or physical deformations.
16 (2) Damage to natural resources.
17 "CONTAMINANT." AN ELEMENT, SUBSTANCE, COMPOUND OR MIXTURE <--
18 WHICH IS DEFINED AS A POLLUTANT OR CONTAMINANT PURSUANT TO THE
19 FEDERAL SUPERFUND ACT.
20 The term shall not include an element, substance, compound or
21 mixture from a coal mining operation under the jurisdiction of
22 the department or from a site eligible for funding under Title
23 IV of the Surface Mining Control and Reclamation Act of 1977
24 (Public Law 95-87, 30 U.S.C. § 1201 et seq.), nor shall the term
25 include natural gas, natural gas liquids, liquified natural gas
26 or synthetic gas usable for fuel or mixtures of natural gas and
27 synthetic gas usable for fuel, except for the purposes of an
28 emergency response, NOR SHALL THE TERM INCLUDE FLY ASH WASTE, <--
29 BOTTOM ASH WASTE, SLAG WASTE OR FLUE GAS EMISSION CONTROL WASTE
30 GENERATED PRIMARILY FROM THE COMBUSTION OF COAL OR OTHER FOSSIL
19870H1852B3632 - 9 -
1 FUELS FOR THE PRODUCTION OF ELECTRICITY.
2 "Department." The Department of Environmental Resources of
3 the Commonwealth.
4 "Disposal." The incineration, combustion, evaporation, air
5 stripping, deposition, injection, dumping, spilling, leaking,
6 mixing or placing of a hazardous substance or contaminant into
7 the air, water or land in a manner which allows it to enter the
8 environment.
9 "Drinking water supply." A raw or finished water source that
10 is or may be used by a public water system, as defined in the
11 Safe Drinking Water Act (Public Law 95-323, 21 U.S.C. § 349 and
12 42 U.S.C. §§ 201 and 300f et seq), or as drinking water by one
13 or more individuals.
14 "Environment." Surface water, groundwater, drinking water
15 supply, land surface or subsurface strata or ambient air within
16 this Commonwealth.
17 "Federal Superfund Act." The Comprehensive Environmental
18 Response Compensation and Liability Act of 1980 (Public Law 96-
19 510, 94 Stat.2767).
20 "Federal Superfund Program." The hazardous waste site
21 cleanup program provided for in the Federal Superfund Act.
22 "Fund." The Hazardous Sites Cleanup Fund established by
23 section 901.
24 "Groundwater." Water occurring in a saturated zone or
25 stratum or percolating beneath the surface of land.
26 "Hazardous substance." <--
27 (1) Any element, compound or material which can pose a
28 threat to the public health or the environment when released
29 into the environment. The term includes, but is not limited
30 to:
19870H1852B3632 - 10 -
1 (i) A hazardous waste designated under the act of
2 July 7, 1980 (P.L.380, No.97), known as the Solid Waste
3 Management Act.
4 (ii) A hazardous substance designated pursuant to
5 the Federal Superfund Act.
6 (iii) A hazardous material designated under the
7 Hazardous Materials Transportation Act (Public law 93-
8 633, 88 Stat.2156).
9 (iv) An object or material which is contaminated
10 with a hazardous substance.
11 (v) Other substances designated by the department as
12 detrimental to public health, safety and the environment
13 by regulations promulgated under this act.
14 "HAZARDOUS SUBSTANCE." <--
15 (1) ANY SUBSTANCE, ELEMENT, COMPOUND OR MATERIAL WHICH
16 IS:
17 (I) DESIGNATED AS A HAZARDOUS WASTE UNDER THE ACT OF
18 JULY 7, 1980 (P.L.380, NO.97), KNOWN AS THE SOLID WASTE
19 MANAGEMENT ACT.
20 (II) DEFINED OR DESIGNATED AS A HAZARDOUS SUBSTANCE
21 PURSUANT TO THE FEDERAL SUPERFUND ACT.
22 (2) The term does not include petroleum products,
23 including crude oil or any fraction thereof, which are not
24 otherwise specifically listed or designated as a hazardous
25 substance under paragraph (1) nor natural gas, natural gas
26 liquids, liquefied natural gas or synthetic gas usable for
27 fuel or mixtures of natural gas and synthetic gas usable for
28 fuel or, NOR an element, substance, compound or mixture from <--
29 a coal mining operation under the jurisdiction of the
30 department or from a site eligible for funding under Title IV
19870H1852B3632 - 11 -
1 of the Surface Mining Control and Reclamation Act of 1977
2 (Public Law 95-87, 30 U.S.C. § 1201 et seq.), NOR SHALL THE <--
3 TERM INCLUDE FLY ASH WASTE, BOTTOM ASH WASTE, SLAG WASTE OR
4 FLUE GAS EMISSION CONTROL WASTE GENERATED PRIMARILY FROM THE
5 COMBUSTION OF COAL OR OTHER FOSSIL FUELS FOR THE PRODUCTION
6 OF ELECTRICITY.
7 "Hazardous waste." Any waste defined as hazardous under the
8 act of July 7, 1980 (P.L.380, No.97), known as the Solid Waste
9 Management Act, and any regulations promulgated under that act.
10 "HAZARDOUS WASTE FACILITY." A FACILITY WHICH PROVIDES FOR <--
11 THE TREATMENT OR DISPOSAL OF HAZARDOUS WASTE.
12 "Interim response." Response which does not exceed 12 months
13 in duration or $2,000,000 in cost. An interim response may
14 exceed these limitations only where one of the following
15 applies:
16 (1) Continued response actions are immediately required
17 to prevent, limit or mitigate an emergency.
18 (2) There is an immediate risk to public health, safety,
19 welfare or the environment.
20 (3) Assistance will not otherwise be provided on a
21 timely basis.
22 (4) Continued response action is otherwise appropriate
23 and consistent with future remedial response to be taken.
24 "Natural resources." Land, fish, wildlife, biota, air,
25 water, groundwater, drinking water supplies and other resources
26 belonging to, managed by, held in trust by, appertaining to or
27 otherwise controlled by the United States, the Commonwealth or a
28 political subdivision. The term includes resources protected by
29 section 27 of Article I of the Constitution of Pennsylvania.
30 "Owner or operator." A person who owns or operates or has
19870H1852B3632 - 12 -
1 owned or operated a site, or otherwise controlled activities at
2 a site. The term does not include THE OWNER OR OPERATOR OF <--
3 EQUIPMENT FOR THE RECOVERY OR PROCESSING, INCLUDING
4 RECIRCULATION OF CONDENSATE, OF METHANE WITH RESPECT TO THE
5 FACILITY AT WHICH THE EQUIPMENT IS INSTALLED OR a person who,
6 without participating in the management of a site, holds indicia
7 of ownership primarily to protect a security interest in the
8 site nor a unit of State or local government which acquired
9 ownership or control involuntarily through bankruptcy, tax
10 delinquency, abandonment, or other circumstances in which the
11 government involuntarily acquires title by virtue of its
12 function as sovereign NOR A FINANCIAL INSTITUTION OR ITS <--
13 AFFILIATES NOR A CORPORATE INSTRUMENTALITY OF THE FEDERAL
14 GOVERNMENT. This exclusion does not apply to a political
15 subdivision which has caused or contributed to the release or
16 threatened release of a hazardous substance from the facility.
17 "Person." An individual, firm, corporation, association,
18 partnership, consortium, joint venture, commercial entity,
19 authority, interstate body or other legal entity which is
20 recognized by law as the subject of rights and duties. The term
21 includes the Federal Government, state governments and political
22 subdivisions.
23 "RECYCLING EQUIPMENT." MACHINERY OR APPARATUS USED <--
24 EXCLUSIVELY TO PROCESS HAZARDOUS WASTE MATERIAL AND
25 MANUFACTURING MACHINERY USED EXCLUSIVELY TO RECLAIM SUCH
26 MATERIALS INTO NONHAZARDOUS, REUSABLE, RAW-MATERIAL PRODUCTS,
27 THEREBY REDUCING THE AMOUNT OF HAZARDOUS MATERIAL PRODUCED.
28 "Release." Spilling, leaking, pumping, pouring, emitting,
29 emptying, discharging, injecting, escaping, leaching, dumping or
30 disposal into the environment. The term includes the abandonment
19870H1852B3632 - 13 -
1 or discarding of barrels, containers, vessels and other
2 receptacles containing a hazardous substance or contaminant., <--
3 and excludes the application of fertilizer in agricultural uses
4 in accordance with proper application procedures, controls and
5 loadings. THE TERM DOES NOT INCLUDE: <--
6 (1) ANY RELEASE WHICH RESULTS IN EXPOSURE TO PERSONS
7 SOLELY WITHIN A WORKPLACE, WITH RESPECT TO A CLAIM WHICH SUCH
8 PERSONS MAY ASSERT AGAINST THE EMPLOYER OF SUCH PERSONS;
9 (2) EMISSIONS FROM THE ENGINE EXHAUST OF A MOTOR
10 VEHICLE, ROLLING STOCK, AIRCRAFT, VESSEL OR PIPELINE PUMPING
11 STATION ENGINE;
12 (3) RELEASE OF SOURCE, BY-PRODUCT OR SPECIAL NUCLEAR
13 MATERIAL FROM A NUCLEAR INCIDENT, AS THOSE TERMS ARE DEFINED
14 IN THE ATOMIC ENERGY ACT OF 1954 (68 STAT. 921, 28 U.S.C. §§
15 2341(3)(A)-(C) AND 2342(1)-(4) AND 42 U.S.C. § 2201 ET SEQ.),
16 IF SUCH RELEASE IS SUBJECT TO REQUIREMENTS WITH RESPECT TO
17 FINANCIAL PROTECTION ESTABLISHED BY THE NUCLEAR REGULATORY
18 COMMISSION UNDER SECTION 170 OF THE ATOMIC ENERGY ACT OF
19 1954, OR, FOR THE PURPOSE OF SECTION 104 OF THIS ACT OR ANY
20 OTHER RESPONSE ACTION, ANY RELEASE OF SOURCE BY-PRODUCT, OR
21 SPECIAL NUCLEAR MATERIAL FROM ANY PROCESSING SITE DESIGNATED
22 UNDER SECTION 102(A)(1) OR 302(A) OF THE URANIUM MILL
23 TAILINGS RADIATION CONTROL ACT OF 1978 (PUBLIC LAW 95-604, 42
24 U.S.C. § 7901 ET SEQ.); AND
25 (4) THE NORMAL APPLICATION OF FERTILIZER.
26 "Remedial response or remedy." Any response which is not an
27 interim response.
28 "Response." Action taken in the event of a release or
29 threatened release of a hazardous substance or a contaminant
30 into the environment to study, assess, prevent, minimize or
19870H1852B3632 - 14 -
1 eliminate the release in order to protect the present or future
2 public health, safety or welfare or the environment. The term
3 includes but is not limited to:
4 (1) Emergency response to the release of hazardous
5 substances or contaminants.
6 (2) Actions at or near the location of the release, such
7 as studies; health assessments; storage; confinement;
8 perimeter protection using dikes, trenches, or ditches; clay
9 cover; neutralization; cleanup or removal of released
10 hazardous substances, contaminants or contaminated materials;
11 recycling or reuse, diversion, destruction, segregation of
12 reactive wastes; dredging or excavations; repair or
13 replacement of leaking containers; collection of leachate and
14 runoff; onsite treatment or incineration; offsite transport
15 and offsite storage; treatment, destruction, or secure
16 disposition of hazardous substances and contaminants;
17 treatment of groundwater, provision of alternative water
18 supplies, fencing or other security measures; and monitoring
19 and maintenance reasonably required to assure that these
20 actions protect the public health, safety, and welfare and
21 the environment.
22 (3) Costs of relocation of residents and businesses and
23 community facilities when the department determines that,
24 alone or in combination with other measures, relocation is
25 more cost effective than and environmentally preferable to
26 the transportation, storage, treatment, destruction or secure
27 disposition offsite of hazardous substances or contaminants
28 or may otherwise be necessary to protect the public health or
29 welfare.
30 (4) Actions taken under section 104(b) of the Federal
19870H1852B3632 - 15 -
1 Superfund Act, (42 U.S.C. § 9604(b)) and any emergency
2 assistance which may be provided under the Disaster Relief
3 Act of 1974 (Public Law 93-288, 88 Stat.43).
4 (5) Other actions necessary to assess, prevent,
5 minimize, or mitigate damage to the public health, safety or
6 welfare or the environment which may otherwise result from a
7 release or threatened release of hazardous substances or
8 contaminants.
9 (6) Investigation, enforcement, abatement of nuisances,
10 and oversight and administrative activities related to
11 interim or remedial response enforcement, abatement of
12 nuisances, and oversight and administrative activities
13 related to interim or remedial response.
14 "Responsible person." A person responsible for the release
15 or threatened release of a hazardous substance as described in
16 section 701. IN NO CASE SHALL A FINANCIAL INSTITUTION OR ITS <--
17 AFFILIATE OR A CORPORATE INSTRUMENTALITY OF THE FEDERAL
18 GOVERNMENT BE DEEMED TO BE A RESPONSIBLE PERSON OR TO BE JOINTLY
19 OR CONTINGENTLY LIABLE FOR THE ACTIONS OF A RESPONSIBLE PERSON
20 BY VIRTUE OF SUPERVISION OF, OR OTHER INVOLVEMENT WITH, THE
21 FINANCES AND OPERATIONS OF A RESPONSIBLE PERSON IN CONNECTION
22 WITH A LOAN, OBLIGATION OR OTHER SERVICE PROVIDED.
23 "Secretary." The Secretary of Environmental Resources of the
24 Commonwealth.
25 "Service station operator." A person who owns or operates a
26 motor vehicle service station, filling station, garage or
27 similar operation engaged in selling, repairing or servicing
28 motor vehicles who accepts or undertakes the collection,
29 accumulation and delivery to an oil recycling facility of
30 recycled oil that has been removed from the engine of a motor
19870H1852B3632 - 16 -
1 vehicle or appliance and that is presented for collection,
2 accumulation and delivery to an oil recycling facility. The term
3 includes a government agency that establishes a facility solely
4 for the purpose of accepting recycled oil and owners or
5 operators of refuse collection services who are compelled by law
6 to collect, accumulate and deliver recycled oil to an oil
7 recycling facility.
8 "Site." Any building; structure; installation; equipment; <--
9 pipe or pipeline, including any pipe into a sewer or publicly-
10 owned treatment works; well; pit; pond; lagoon; impoundment;
11 ditch; landfill; storage container; tank; vehicle; rolling
12 stock; aircraft; vessel; or area where a contaminant or
13 hazardous substance has been deposited, stored, treated,
14 released, disposed of, placed, or otherwise come to be located.
15 The term does not include a location where the hazardous
16 substance or contaminant is a consumer product in normal
17 consumer use or where pesticides and fertilizers are in normal
18 appropriate agricultural use.
19 "SITE." ANY BUILDING; STRUCTURE; INSTALLATION; EQUIPMENT; <--
20 PIPE OR PIPELINE, INCLUDING ANY PIPE INTO A SEWER OR PUBLICLY-
21 OWNED TREATMENT WORKS; WELL; PIT; POND; LAGOON; IMPOUNDMENT;
22 DITCH; LANDFILL; STORAGE CONTAINER; TANK; VEHICLE; ROLLING
23 STOCK; AIRCRAFT; VESSEL OR AREA WHERE A CONTAMINANT OR HAZARDOUS
24 SUBSTANCE HAS BEEN DEPOSITED, STORED, TREATED, RELEASED,
25 DISPOSED OF, PLACED OR OTHERWISE COME TO BE LOCATED. THE TERM
26 DOES NOT INCLUDE A LOCATION WHERE THE HAZARDOUS SUBSTANCE OR
27 CONTAMINANT IS A CONSUMER PRODUCT IN NORMAL CONSUMER USE OR
28 WHERE PESTICIDES AND FERTILIZERS ARE IN NORMAL APPROPRIATE
29 AGRICULTURAL USE, NOR SHALL THE TERM INCLUDE A LOCATION WHERE
30 HAZARDOUS SUBSTANCES ARE PRESENT WHEN SUCH LOCATION HAS A
19870H1852B3632 - 17 -
1 PERMIT, INCLUDING INTERIM STATUS, UNDER THE SOLID WASTE DISPOSAL
2 ACT (PUBLIC LAW 89-272, 42 U.S.C. § 6901 ET SEQ.) OR THE ACT OF
3 JULY 7, 1980 (P.L.380, NO.97), KNOWN AS THE SOLID WASTE
4 MANAGEMENT ACT, OR, IF NOT REQUIRED TO HAVE SUCH PERMIT OR
5 INTERIM STATUS, IS UNDER ACTIVE OPERATION OR MANAGEMENT BY AN
6 IDENTIFIED AND RESPONSIBLE OWNER OR OPERATOR.
7 "Transportation." The conveyance of a hazardous substance or
8 contaminant by any mode, including pipeline.
9 "Treatment." A method, technique or process, including
10 neutralization, designed to change the physical, chemical or
11 biological character or composition of a hazardous substance so
12 as to neutralize the hazardous substance or to render the
13 hazardous substance nonhazardous, safer for transport, suitable
14 for recovery, suitable for storage or reduced in volume. The
15 term includes activity or processing designed to change the
16 physical form or chemical composition of hazardous substance so
17 as to render it neutral or nonhazardous.
18 "Vessel." A watercraft or other artificial contrivance used,
19 or capable of being used, as a means of transportation on water.
20 Section 104. Construction.
21 Nothing in this act shall be construed to affect, impair or
22 repeal any provision of any other statute. No action by the
23 department under this act shall be understood or construed as
24 precluding the department from taking any action authorized by
25 this act or any other statute administered by the department.
26 CHAPTER 3
27 POWERS AND DUTIES
28 Section 301. Powers and duties of department.
29 The department has the following powers and duties:
30 (1) Develop, administer and enforce a program to provide
19870H1852B3632 - 18 -
1 for the investigation, assessment and cleanup of hazardous
2 sites in this Commonwealth pursuant to the provisions of this
3 act and regulations adopted under this act.
4 (2) Undertake activities necessary or proper to
5 cooperate with and fully participate in the Federal Superfund
6 Program, including serving as the agency of the Commonwealth
7 for the receipt of moneys from the Federal Government or
8 other public or private agencies.
9 (3) Develop, administer and enforce an independent State
10 response program for the investigation, assessment and
11 cleanup of hazardous sites and replacement of water supplies
12 and the protection of the citizens and natural resources of
13 this Commonwealth from the dangers of hazardous substances
14 and contaminants that have been released or are threatened to
15 be released into the environment.
16 (4) Cooperate with appropriate Federal, State,
17 interstate and local government agencies in carrying out its
18 duties under this act by, among other things, accepting an
19 appropriate delegation or agency relationship from such an
20 agency to facilitate the cleanup of hazardous sites in this
21 Commonwealth.
22 (5) Administer the fund and any fund for hazardous waste
23 facilities siting and expend money from the funds in
24 accordance with this act.
25 (6) Administer and expend funds appropriated to the
26 department or granted to the Commonwealth under the Federal
27 Superfund Act or other authority for the protection of the
28 public and the natural resources of this Commonwealth from
29 releases of hazardous substances or contaminants.
30 (7) Promulgate the State standards and requirements
19870H1852B3632 - 19 -
1 applicable, relevant or appropriate for the cleanup of
2 hazardous sites under this act and the Federal Superfund Act.
3 (8) Develop a program for public participation in the
4 assessment of sites and selection of appropriate remedial
5 responses.
6 (9) Issue orders to enforce provisions of this act and
7 regulations promulgated under it.
8 (10) Institute, in a court of competent jurisdiction,
9 proceedings to compel compliance with this act, regulations
10 promulgated under it or an order of the department.
11 (11) Institute prosecutions under this act.
12 (12) Appoint advisory committees as the secretary deems
13 necessary and proper to assist the department in carrying out
14 this act. The secretary is authorized to pay reasonable and
15 necessary expenses incurred by the members of advisory
16 committees in carrying out their functions.
17 (13) Acquire special scientific and technical staff
18 resources to provide specialized expertise in areas related
19 to the evaluation of sites and selection of responses to
20 advise the department regarding standards, technologies, risk
21 assessments and other matters related to the cleanup of
22 hazardous sites; the regulation of hazardous substances and
23 contaminants; and the enforcement of this act.
24 (14) Act as trustee of this Commonwealth's natural
25 resources. The department may assess and collect damages to
26 natural resources for the purposes of this act and the
27 Federal Superfund Act for those natural resources under its
28 trusteeship.
29 (15) Provide for emergency response capability for
30 spills, accidents and other releases of hazardous substances
19870H1852B3632 - 20 -
1 and contaminants.
2 (16) Implement section 27 of Article 1 of the
3 Constitution of Pennsylvania.
4 (17) Do any and all other acts and things not
5 inconsistent with any provision of this act which it may deem
6 necessary or proper for the effective enforcement of this act
7 and the regulations promulgated under it.
8 Section 302. Special science and technology resources.
9 (a) Establishment.--The department shall establish an
10 additional complement of individuals with expertise and advanced
11 degrees in specialized fields of science and technology relevant
12 to administration and enforcement of this act.
13 (b) Expertise.--The special science and technology staff
14 shall have expertise in fields relating to the identification,
15 analysis, assessment, prevention or abatement of hazards to the
16 public health or the environment resulting from the release of
17 hazardous substances or contaminants into the environment. The
18 special science and technology staff may include, without
19 limitation, individuals trained in toxicology, hydrogeology,
20 chemistry, biology, soil science, biochemistry, environmental
21 engineering, epidemiology, value engineering and risk assessment
22 sciences.
23 (c) Availability.--The special science and technology staff
24 shall be available to review consultants' contracts, reports and
25 feasibility studies; prepare and review environmental
26 assessments, serve as expert witnesses in department litigation;
27 provide scientific analysis or studies to support rulemaking
28 activities of the department; and perform other duties as
29 assigned by the secretary in furtherance of this act or other
30 environmental protection laws administered by the department.
19870H1852B3632 - 21 -
1 (d) Civil service.--In order to obtain the most highly
2 qualified individuals for the special science and technology
3 staff, the secretary may hire the staff without regard to the
4 provisions of the act of August 5, 1941 (P.L.752, No.286), known
5 as the Civil Service Act.
6 Section 303. Powers and duties of Environmental Quality Board.
7 The board, exercising its powers and duties under section
8 1920 of the act of April 9, 1929 (P.L. 177, No.175), known as
9 The Administrative Code of 1929, has the power and duty to
10 promulgate the regulations of the department to accomplish the
11 purposes and to carry out the provisions of this act, including
12 but not limited to regulations relating to the protection, from
13 the release of hazardous substances, of the safety, health,
14 welfare and property of the public and of the air, water, land
15 and other natural resources of this Commonwealth.
16 SECTION 304. HOST MUNICIPALITY INCENTIVES AND GUARANTEES. <--
17 (A) INFORMATION TO HOST MUNICIPALITY.--THE DEPARTMENT SHALL
18 PROVIDE ALL OF THE FOLLOWING INFORMATION TO THE GOVERNING BODY
19 OF A HOST MUNICIPALITY FOR A COMMERCIAL HAZARDOUS WASTE STORAGE,
20 TREATMENT OR DISPOSAL FACILITY PERMITTED BY THE DEPARTMENT UNDER
21 THIS ACT AND LOCATED WITHIN THAT MUNICIPALITY:
22 (1) COPIES OF DEPARTMENT INSPECTION REPORTS FOR THE
23 FACILITY UNDER THIS ACT, THE ACT OF JUNE 22, 1937 (P.L.1987,
24 NO.394), KNOWN AS THE CLEAN STREAMS LAW, THE ACT OF JANUARY
25 8, 1960 (1959 P.L.2119, NO.787), KNOWN AS THE AIR POLLUTION
26 CONTROL ACT, AND THE ACT OF NOVEMBER 26, 1978 (P.L.1375,
27 NO.325), KNOWN AS THE DAM SAFETY AND ENCROACHMENTS ACT,
28 WITHIN FIVE WORKING DAYS AFTER THE PREPARATION OF THE
29 REPORTS.
30 (2) PROMPT NOTIFICATION OF ALL DEPARTMENT ENFORCEMENT OR
19870H1852B3632 - 22 -
1 EMERGENCY ACTIONS FOR FACILITIES, INCLUDING, BUT NOT LIMITED
2 TO, ABATEMENT ORDERS, CESSATION ORDERS, PROPOSED AND FINAL
3 CIVIL PENALTY ASSESSMENTS AND NOTICES OF VIOLATION.
4 (3) COPIES OF AIR AND WATER QUALITY MONITORING DATA
5 COLLECTED BY THE DEPARTMENT AT FACILITIES, AFTER COMPLETE
6 LABORATORY ANALYSIS OF THE DATA BECOMES AVAILABLE TO THE
7 DEPARTMENT.
8 (B) TRAINING OF INSPECTORS.--
9 (1) THE DEPARTMENT SHALL ESTABLISH AND CONDUCT A
10 TRAINING PROGRAM TO CERTIFY HOST MUNICIPALITY INSPECTORS FOR
11 HAZARDOUS WASTE STORAGE, TREATMENT OR DISPOSAL FACILITIES. NO
12 MORE THAN TWO PERSONS FROM EACH HOST MUNICIPALITY SHALL BE
13 ELIGIBLE FOR THE PROGRAM. EACH HOST MUNICIPALITY SHALL INFORM
14 THE DEPARTMENT, IN WRITING, OF THE PERSONS IT HAS DESIGNATED
15 TO PARTICIPATE IN THE TRAINING PROGRAM. THE DEPARTMENT SHALL
16 HOLD TRAINING SESSIONS AT LEAST TWICE A YEAR. THE DEPARTMENT
17 SHALL CERTIFY HOST MUNICIPALITY INSPECTORS UPON COMPLETION OF
18 THE TRAINING PROGRAM AND SATISFACTORY PERFORMANCE IN AN
19 EXAMINATION ADMINISTERED BY THE DEPARTMENT.
20 (2) CERTIFIED MUNICIPAL INSPECTORS SHALL BE AUTHORIZED
21 TO ENTER PROPERTY, INSPECT RECORDS, TAKE SAMPLES AND CONDUCT
22 INSPECTIONS. CERTIFIED MUNICIPAL INSPECTORS MAY NOT ISSUE
23 ORDERS. UPON THE COMPLETION OF AN INSPECTION, CERTIFIED
24 MUNICIPAL INSPECTORS SHALL TRANSMIT ALL FINDINGS FROM THE
25 INSPECTION TO THE DEPARTMENT. THE DEPARTMENT SHALL NOTIFY
26 CERTIFIED MUNICIPAL INSPECTORS OF REGULAR INSPECTIONS OF
27 PERMITTED FACILITIES WITHIN THEIR JURISDICTION AND SHALL
28 PROVIDE OPPORTUNITY FOR THE INSPECTORS TO ACCOMPANY
29 DEPARTMENT INSPECTORS ON INSPECTIONS.
30 (3) THE DEPARTMENT SHALL REIMBURSE HOST MUNICIPALITIES
19870H1852B3632 - 23 -
1 FOR 50% OF THE APPROVED COST OF EMPLOYING CERTIFIED HOST
2 MUNICIPALITY INSPECTORS FOR A PERIOD NOT TO EXCEED FIVE
3 YEARS.
4 (4) THE DEPARTMENT SHALL PROMPTLY INSPECT A FACILITY
5 WHEN A HOST MUNICIPALITY PRESENTS INFORMATION TO THE
6 DEPARTMENT WHICH GIVES THE DEPARTMENT REASON TO BELIEVE THAT
7 A HAZARDOUS WASTE STORAGE, TREATMENT OR DISPOSAL FACILITY IS
8 IN VIOLATION OF ANY REQUIREMENT OF THE CLEAN STREAMS LAW, THE
9 AIR POLLUTION CONTROL ACT, THE DAM SAFETY AND ENCROACHMENTS
10 ACT, OR THIS ACT; A REGULATION PROMULGATED UNDER THESE
11 STATUTES; OR THE CONDITION OF A PERMIT ISSUED UNDER THESE
12 STATUTES.
13 (I) THE DEPARTMENT SHALL NOTIFY THE HOST MUNICIPALITY OF
14 THIS INSPECTION AND SHALL PERMIT A CERTIFIED MUNICIPAL
15 INSPECTOR FROM THE HOST MUNICIPALITY TO ACCOMPANY THE
16 DEPARTMENT INSPECTOR DURING THE INSPECTION.
17 (II) WHEN THE DEPARTMENT DETERMINES THAT THERE IS NOT
18 SUFFICIENT INFORMATION TO GIVE THE DEPARTMENT REASON TO
19 BELIEVE THAT A VIOLATION IS OCCURRING OR HAS OCCURRED, THE
20 DEPARTMENT SHALL PROVIDE A WRITTEN EXPLANATION TO THE HOST
21 MUNICIPALITY OF ITS DECISION NOT TO CONDUCT AN INSPECTION
22 WITHIN 30 DAYS OF THE REQUEST FOR INSPECTION.
23 (C) FINANCIAL ASSISTANCE FOR THE REVIEW OF PERMIT
24 APPLICATIONS.--THE DEPARTMENT SHALL REIMBURSE HOST COUNTIES FOR
25 COSTS INCURRED BY HOST MUNICIPALITIES FOR PROFESSIONAL TECHNICAL
26 REVIEW OF A PERMIT APPLICATION UNDER THIS ACT FOR A HAZARDOUS
27 WASTE TREATMENT, STORAGE OR DISPOSAL FACILITY OR FOR A PERMIT
28 MODIFICATION THAT WOULD RESULT IN ADDITIONAL CAPACITY FOR THE
29 FACILITY. THE REIMBURSEMENT SHALL NOT EXCEED $50,000 PER
30 COMPLETE APPLICATION.
19870H1852B3632 - 24 -
1 (D) SAMPLING AND ANALYSIS OF WATER.--
2 (1) UPON WRITTEN REQUEST FROM PERSONS OWNING PROPERTY
3 WITHIN 2,500 FEET OF A HAZARDOUS WASTE STORAGE, TREATMENT OR
4 DISPOSAL FACILITY, THE OPERATOR OF THE FACILITY SHALL HAVE
5 QUARTERLY SAMPLING AND ANALYSIS CONDUCTED OF PRIVATE WATER
6 SUPPLIES USED BY THOSE PERSONS FOR DRINKING WATER. SAMPLING
7 AND ANALYSIS SHALL BE CONDUCTED BY A LABORATORY CERTIFIED
8 PURSUANT TO THE ACT OF MAY 1, 1984 (P.L.206, NO.43), KNOWN AS
9 THE PENNSYLVANIA SAFE DRINKING WATER ACT. THE LABORATORY
10 SHALL BE CHOSEN BY THE LANDOWNERS FROM A LIST OF REGIONAL
11 LABORATORIES SUPPLIED BY THE DEPARTMENT. SAMPLING AND
12 ANALYSIS SHALL BE AT THE EXPENSE OF THE FACILITY OPERATOR.
13 (2) WATER SUPPLIES SHALL BE ANALYZED BY THE DEPARTMENT.
14 THE LABORATORY PERFORMING SAMPLING AND ANALYSIS SHALL PROVIDE
15 WRITTEN COPIES OF SAMPLE RESULTS TO THE LANDOWNER, THE
16 OPERATOR AND THE DEPARTMENT.
17 SECTION 305. HOST MUNICIPALITIES FUND. <--
18 (A) ESTABLISHMENT.--THERE IS ESTABLISHED WITHIN THE STATE
19 TREASURY A SEPARATE ACCOUNT WHICH SHALL BE KNOWN AS THE HOST
20 MUNICIPALITIES FUND. UP TO $2,000,000 OF THE PROCEEDS FROM
21 HAZARDOUS WASTE TRANSPORTATION AND MANAGEMENT FEES IMPOSED UNDER
22 SECTION 903, INCLUDING ANY INTEREST GENERATED THEREON, SHALL BE
23 DEPOSITED IN THE FUND UPON THE ISSUANCE OF A PERMIT FOR A
24 HAZARDOUS WASTE FACILITY.
25 (B) PURPOSE.--THE PURPOSE OF THE FUND IS TO PROVIDE
26 FINANCIAL ASSISTANCE TO HOST MUNICIPALITIES WITH CERTAIN
27 CATEGORIES OF HAZARDOUS WASTE FACILITIES WITHIN THEIR
28 JURISDICTION. FOR THE PURPOSES OF THIS SECTION, THE TERM
29 "HAZARDOUS WASTE FACILITY" IS LIMITED TO OFF-SITE TREATMENT
30 FACILITIES FOR HAZARDOUS WASTE. THE TERM "OFF-SITE" MEANS THE
19870H1852B3632 - 25 -
1 FACILITY IS NOT LOCATED AT THE SAME SITE AT WHICH THE HAZARDOUS
2 WASTE WAS GENERATED.
3 (C) APPROPRIATION.--ALL MONEY PLACED IN THE FUND IS
4 APPROPRIATED TO THE DEPARTMENT FOR THE PURPOSES SET FORTH IN
5 THIS SECTION.
6 (D) ALLOCATION.--THE DEPARTMENT SHALL ANNUALLY ALLOCATE
7 MONEYS IN THE FUND FOR THE FOLLOWING PURPOSES:
8 (1) CONDUCTING THE HOST MUNICIPALITY INSPECTOR TRAINING
9 PROGRAM, EMPLOYING A CERTIFIED HOST MUNICIPALITY INSPECTOR,
10 REIMBURSING MUNICIPALITIES AND COUNTIES FOR INDEPENDENT
11 EVALUATIONS AND PROVIDING SIMILAR ASSISTANCE RELATED TO THE
12 IMPLEMENTATION OF SECTION 304.
13 (2) PROVIDING AN ANNUAL PAYMENT TO EACH HOST
14 MUNICIPALITY, AS PROVIDED IN SUBSECTION (E).
15 (E) MINIMUM PAYMENT.--
16 (1) AT A MINIMUM, EACH PAYMENT SHALL BE IN AN AMOUNT
17 SUFFICIENT TO REIMBURSE THE HOST MUNICIPALITY FOR THE HOST
18 MUNICIPALITY'S ELIGIBLE SHARE OF ANY ACTIVITIES CARRIED OUT
19 UNDER SECTION 304.
20 (2) AFTER A COMMERCIAL HAZARDOUS WASTE TREATMENT OR
21 DISPOSAL FACILITY BEGINS OPERATION, THE DEPARTMENT SHALL
22 ANNUALLY DISTRIBUTE THE BALANCE CONTAINED IN THE FUND AFTER
23 PAYMENTS HAVE BEEN MADE UNDER PARAGRAPH (1). THE BALANCE
24 SHALL BE DISTRIBUTED ACCORDING TO AN ALLOCATION FORMULA
25 ESTABLISHED BY REGULATION. THE ALLOCATION FORMULA SHALL DO
26 ALL OF THE FOLLOWING:
27 (I) PROVIDE, AT A MINIMUM, THAT NO HOST MUNICIPALITY
28 MAY RECEIVE LESS THAN 10% NOR MORE THAN 75% OF THE TOTAL
29 AMOUNT DISTRIBUTED UNDER THIS PARAGRAPH ANNUALLY.
30 (II) DISTRIBUTE FUNDS TO EACH HOST MUNICIPALITY,
19870H1852B3632 - 26 -
1 BASED ON ALL OF THE FOLLOWING:
2 (A) THE TOXICITY, MOBILITY AND OTHER
3 CHARACTERISTICS OF THE HAZARDOUS WASTE.
4 (B) THE PROXIMITY OF THE FACILITY TO PERSONS OR
5 NATURAL RESOURCES WHICH WOULD BE ENDANGERED BY THE
6 ESCAPE OF THE HAZARDOUS WASTE FROM THE FACILITY.
7 (C) THE WEIGHT OR VOLUME OF WASTE TREATED OR
8 DISPOSED ANNUALLY AT THE FACILITY IN PROPORTION TO
9 THE WEIGHT OR VOLUME OF WASTE TREATED OR DISPOSED
10 ANNUALLY IN THIS COMMONWEALTH.
11 (D) THE AMOUNT OF WASTE DISPOSED OR TREATED AT
12 THE FACILITY GENERATED INSIDE THIS COMMONWEALTH.
13 (3) A HOST MUNICIPALITY MAY EXPEND MONEY RECEIVED UNDER
14 THIS SUBSECTION FOR ANY PURPOSE FOR WHICH THE MUNICIPALITY IS
15 OTHERWISE AUTHORIZED BY LAW TO EXPEND PUBLIC FUNDS,
16 INCLUDING, BUT NOT LIMITED TO, ECONOMIC DEVELOPMENT
17 ACTIVITIES AND THE PAYMENT ON BEHALF OF ITS RESIDENTS OF ANY
18 COUNTY OR SCHOOL DISTRICT TAXES THAT WOULD OTHERWISE BE
19 IMPOSED ON ITS RESIDENTS.
20 (F) CONSTRUCTION OF SECTION.--NOTHING IN THIS SECTION SHALL
21 BE CONSTRUED TO PREVENT THE HOST MUNICIPALITY AND THE OWNER OR
22 OPERATOR OF A COMMERCIAL HAZARDOUS WASTE TREATMENT STORAGE OR
23 DISPOSAL FACILITY FROM ENTERING CONTRACTUAL OR OTHER AGREEMENTS
24 BY WHICH THE OWNER OR OPERATOR PROVIDES ADDITIONAL BENEFITS TO
25 THE HOST MUNICIPALITY.
26 SECTION 305 306. HAZARDOUS WASTE FACILITY SITING COMMISSION. <--
27 (A) ESTABLISHMENT.--THERE IS HEREBY ESTABLISHED AN
28 INDEPENDENT AGENCY, KNOWN AS THE HAZARDOUS WASTE FACILITY SITING
29 COMMISSION, WHICH SHALL CONSIST OF SEVEN MEMBERS TO BE KNOWN AS
30 COMMISSIONERS. THREE MEMBERS OF THE COMMISSION SHALL BE
19870H1852B3632 - 27 -
1 APPOINTED BY THE GOVERNOR, ONE OF WHOM SHALL BE DESIGNATED AS
2 CHAIRMAN, ONE BY THE PRESIDENT PRO TEMPORE OF THE SENATE, ONE BY
3 THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, ONE BY THE MINORITY
4 LEADER OF THE SENATE AND ONE BY THE MINORITY LEADER OF THE HOUSE
5 OF REPRESENTATIVES. THOSE PERSONS APPOINTED SHALL BE
6 KNOWLEDGEABLE IN THE FIELDS OF HAZARDOUS WASTE MANAGEMENT,
7 ENVIRONMENTAL PROTECTION, MUNICIPAL GOVERNMENT OR OTHER
8 PERTINENT FIELDS AND SHALL BE APPOINTED IN SUCH A MANNER AS TO
9 FAIRLY REPRESENT LOCAL GOVERNMENT, INDUSTRY AND PUBLIC INTEREST
10 GROUPS. NO MEMBER OF THE GENERAL ASSEMBLY OR ANY OFFICER OR
11 EMPLOYEE OF THE STATE GOVERNMENT SHALL SERVE AS A MEMBER OF THE
12 COMMISSION.
13 (B) TERMS OF MEMBERS.--EACH APPOINTMENT SHALL BE FOR A TERM
14 OF THREE YEARS. ALL VACANCIES SHALL BE FILLED, FOR THE REMAINDER
15 OF THE UNEXPIRED TERM, BY THE RESPECTIVE APPOINTING AUTHORITY.
16 ANY COMMISSIONER, UPON THE EXPIRATION OF HIS TERM, SHALL
17 CONTINUE TO HOLD OFFICE UNTIL HIS SUCCESSOR SHALL BE APPOINTED.
18 NO COMMISSIONER MAY BE REMOVED FROM OFFICE DURING HIS TERM,
19 EXCEPT FOR CAUSE, BY THE RESPECTIVE APPOINTING AUTHORITY.
20 (C) COMPENSATION.--THE COMMISSIONERS SHALL RECEIVE $125 A
21 DAY AS COMPENSATION FOR THEIR SERVICES. THE COMMISSIONERS SHALL
22 BE ENTITLED TO REIMBURSEMENT FOR TRAVEL AND OTHER NECESSARY
23 EXPENSES INCURRED AS A RESULT OF THEIR DUTIES AS MEMBERS OF THE
24 COMMISSION. THE EXPENSES INCURRED BY THE COMMISSIONERS OR BY ANY
25 EMPLOYEES OF THE COMMISSION SHALL BE ALLOWED AND PAID ON THE
26 PRESENTATION OF ITEMIZED VOUCHERS THEREFOR, WHICH VOUCHERS SHALL
27 BE SUBJECT TO THE APPROVAL OF THE COMMISSION.
28 (D) MEETINGS.--THE COMMISSION SHALL MEET AS NECESSARY TO
29 CARRY OUT ITS BUSINESS, BUT NOT LESS THAN FOUR TIMES PER YEAR,
30 AT SUCH TIMES AND PLACES AS SHALL BE SET BY THE CHAIRMAN. FOR
19870H1852B3632 - 28 -
1 PURPOSES OF CONDUCTING OFFICIAL BUSINESS, A QUORUM SHALL CONSIST
2 OF FOUR MEMBERS.
3 (E) ORGANIZATIONAL MEETING.--WITHIN TWO WEEKS FOLLOWING THE
4 APPOINTMENT OF THE COMMISSIONERS, THE CHAIRMAN SHALL CONVENE AN
5 ORGANIZATIONAL MEETING OF THE COMMISSION. WITHIN 60 DAYS, THE
6 COMMISSION SHALL APPOINT AND FIX THE COMPENSATION OF AN
7 EXECUTIVE DIRECTOR, WHO SHALL DEVOTE HIS FULL TIME TO THE
8 GENERAL SUPERVISION OF ALL THE AFFAIRS OF THE COMMISSION. IN
9 ADDITION, THE COMMISSION MAY APPOINT AND FIX THE COMPENSATION OF
10 SUCH OTHER EMPLOYEES AS THE COMMISSION MAY, FROM TIME TO TIME,
11 FIND NECESSARY FOR THE PROPER PERFORMANCE OF ITS FUNCTIONS.
12 SECTION 306 307. POWERS AND DUTIES OF COMMISSION. <--
13 (A) GENERAL RULE.--THE COMMISSION SHALL HAVE THE POWER AND
14 ITS DUTIES SHALL BE TO:
15 (1) PROMULGATE SUCH REGULATIONS, NOT INCONSISTENT WITH
16 THIS ACT, AS MAY BE NECESSARY TO CARRY OUT ITS DUTIES.
17 (2) DEVELOP A COMPREHENSIVE PUBLIC EDUCATION PROGRAM TO
18 ACQUAINT THE PUBLIC WITH THE NATURE OF HAZARDOUS WASTE
19 GENERATION, MANAGEMENT AND DISPOSAL OF HOUSEHOLD HAZARDOUS
20 WASTE.
21 (3) COOPERATE WITH LOCAL GOVERNMENTS INTERESTED PERSONS <--
22 TO IDENTIFY AREAS SUITABLE FOR SITING HAZARDOUS WASTE
23 FACILITIES.
24 (4) DEVELOP, THROUGH REGULATION, CRITERIA FOR THE SITING <--
25 OF HAZARDOUS WASTE FACILITIES AND TO REVIEW AND APPROVE OR
26 DISAPPROVE SITING APPLICATIONS.
27 (4) REVIEW AND APPROVE OR DISAPPROVE APPLICATIONS FOR <--
28 HAZARDOUS WASTE FACILITY SITES BROUGHT BEFORE THE COMMISSION
29 TO DETERMINE CONFORMITY WITH DEPARTMENTAL SITING CRITERIA AS
30 FOUND IN 25 PA. CODE CH. 75, SUBCH. F (RELATING TO SITING
19870H1852B3632 - 29 -
1 HAZARDOUS WASTE TREATMENT AND DISPOSAL FACILITIES).
2 (5) ASSIST LOCAL GOVERNMENTS IN PLANNING FOR THE SITING
3 OF HAZARDOUS WASTE FACILITIES OR IN REVIEWING SITING
4 APPLICATIONS FOR SUCH FACILITIES.
5 (6) ADMINISTER A GRANT PROGRAM TO ASSIST LOCAL
6 GOVERNMENTS IN SITE PLANNING OR REVIEW.
7 (7) ADOPT A HAZARDOUS WASTE FACILITY PLAN, TAKING INTO <--
8 CONSIDERATION SUCH HAZARDOUS WASTE FACILITIES PLANS AS MAY
9 PRESENTLY EXIST.
10 (B) SCHEDULE FOR FACILITIES.--WITHIN 90 DAYS FOLLOWING THE
11 COMMISSION'S ORGANIZATIONAL MEETING, THE COMMISSION SHALL
12 ESTABLISH A SCHEDULE THAT OUTLINES THE PROCESS FOR SITING NEW OR
13 EXPANDED HAZARDOUS WASTE DISPOSAL OR TREATMENT FACILITIES
14 IDENTIFIED AS NECESSARY IN THE PENNSYLVANIA HAZARDOUS WASTE
15 FACILITIES PLAN. THE COMMISSION MAY AMEND SUCH SCHEDULE FROM
16 TIME TO TIME.
17 (C) CRITERIA.--THE COMMISSION SHALL ADOPT, BY REGULATION, <--
18 CRITERIA FOR THE SITING OF HAZARDOUS WASTE DISPOSAL OR TREATMENT
19 FACILITIES, WHICH CRITERIA SHALL SUPERSEDE ANY CRITERIA FOR THE
20 SITING OF SUCH FACILITIES HERETOFORE ESTABLISHED. IN ADOPTING
21 SUCH CRITERIA, THE COMMISSION SHALL CONSIDER:
22 (1) ANY CRITERIA WHICH MAY HAVE EXISTED HERETOFORE;
23 (2) THE PENNSYLVANIA HAZARDOUS WASTE FACILITIES PLAN;
24 (3) SECTION 27 OF ARTICLE I OF THE CONSTITUTION OF
25 PENNSYLVANIA;
26 (4) PERTINENT ECONOMIC AND ENVIRONMENTAL FACTORS; AND
27 (5) SUCH OTHER CRITERIA AS THE COMMISSION DEEMS
28 APPROPRIATE.
29 THE COMMISSION SHALL ADOPT INTERIM GUIDELINES ON THE SITING OF
30 HAZARDOUS WASTE DISPOSAL OR TREATMENT FACILITIES. THESE
19870H1852B3632 - 30 -
1 GUIDELINES SHALL REMAIN IN EFFECT UNTIL NO LATER THAN OCTOBER
2 17, 1989, BY WHICH TIME THE COMMISSION SHALL HAVE IN EFFECT
3 REGULATIONS FOR THE SITING OF HAZARDOUS WASTE DISPOSAL OR
4 TREATMENT FACILITIES.
5 (C) CRITERIA.--THE COMMISSION SHALL ADOPT EXISTING <--
6 DEPARTMENTAL REGULATIONS FOR THE SITING OF HAZARDOUS WASTE <--
7 FACILITIES AS SET FORTH IN 25 PA. CODE CH. 75, SUBCH. F.
8 (D) GRANT PROGRAM.--THE COMMISSION SHALL ESTABLISH A GRANT
9 PROGRAM, FROM FUNDS APPROPRIATED BY THE GENERAL ASSEMBLY FOR
10 THAT PURPOSE, TO ASSIST INTERESTED COUNTY GOVERNMENTS IN
11 UNDERTAKING A PLANNING PROCESS DESIGNED TO IDENTIFY POTENTIAL
12 HAZARDOUS WASTE FACILITY SITES BY APPLYING THE COMMISSION'S
13 SITING CRITERIA TO LAND WITHIN THE COUNTY.
14 (E) APPLICATION.--ANY PERSON INTERESTED IN ESTABLISHING A
15 HAZARDOUS WASTE DISPOSAL OR TREATMENT FACILITY SHALL SUBMIT A
16 SITING APPLICATION TO THE COMMISSION. SUCH APPLICATION MAY
17 PRECEDE OR BE SIMULTANEOUS WITH THE SUBMISSION OF A PERMIT
18 APPLICATION TO THE DEPARTMENT. THE COMMISSION SHALL ESTABLISH, <--
19 BY REGULATION, PROCEDURES FOR THE PROCESSING AND REVIEW OF SUCH
20 APPLICATIONS. SUCH PROCEDURES SHALL INCLUDE AT LEAST ONE PUBLIC
21 HEARING AT A LOCATION NEAR THE PROPOSED SITE. THE COMMISSION
22 SHALL REVIEW THE APPLICATION FOR CONFORMITY WITH ITS EXISTING <--
23 DEPARTMENTAL SITING CRITERIA AND SHALL, AFTER SUCH REVIEW AND
24 PUBLIC HEARING, APPROVE OR DENY THE SITING APPLICATION. PRIOR TO <--
25 A FINAL DECISION, THE COMMISSION SHALL PROVIDE THE DEPARTMENT
26 WITH AN OPPORTUNITY TO SUBMIT WRITTEN COMMENTS AND ANY RELEVANT
27 INFORMATION REGARDING A PROPOSED SITING APPLICATION. IF THE
28 APPLICATION IS APPROVED, THE COMMISSION SHALL CERTIFY TO THE
29 DEPARTMENT THAT SUCH SITE IS CONSISTENT WITH THE COMMISSION'S <--
30 SITING CRITERIA, WHICH CERTIFICATION SHALL BE BINDING UPON THE
19870H1852B3632 - 31 -
1 DEPARTMENT AND SHALL NOT BE SUBJECT TO FURTHER REVIEW BY THE
2 DEPARTMENT OR BY THE BOARD.. THE COMMISSION REVIEW SHALL BE <--
3 COMPLETED WITHIN 120 DAYS OF SUBMISSION OF THE APPLICATION. ANY
4 PERSON, OTHER THAN THE STATE GOVERNMENT, THAT IS AGGRIEVED BY A
5 DECISION OF THE COMMISSION MAY APPEAL TO THE COMMONWEALTH COURT
6 IN ACCORDANCE WITH LAW.
7 (F) SELECTION OF SITE BY COMMISSION.--IN THE EVENT NO SITING
8 APPLICATION IS SUBMITTED TO THE COMMISSION BY OCTOBER 17, 1989,
9 THE COMMISSION SHALL APPLY ITS SITING CRITERIA TO THE ENTIRE
10 COMMONWEALTH AND SHALL IDENTIFY POTENTIALLY SUITABLE SITES FOR
11 HAZARDOUS WASTE FACILITIES THROUGHOUT THIS COMMONWEALTH. THE
12 COMMISSION MAY AT ANY TIME SOLICIT PROPOSALS FROM INTERESTED
13 PERSONS TO DEVELOP HAZARDOUS WASTE DISPOSAL OR TREATMENT
14 FACILITIES AT SUCH SITES AS MAY BE IDENTIFIED BY THE COMMISSION.
15 IF NO SUCH PROPOSALS ARE RECEIVED, OR IF THE COMMISSION IN ITS
16 DISCRETION DETERMINES THAT SOLICITING SUCH PROPOSALS IS NOT IN
17 THE PUBLIC INTEREST, THE COMMISSION MAY MAKE APPLICATION TO THE
18 DEPARTMENT, IN THE NAME OF THE COMMONWEALTH, FOR THE NECESSARY
19 PERMITS TO ESTABLISH A STATE-OWNED HAZARDOUS WASTE DISPOSAL
20 FACILITY. IN CARRYING OUT ITS DUTIES UNDER THIS SUBSECTION, THE
21 COMMISSION SHALL HAVE THE POWER OF EMINENT DOMAIN TO ACQUIRE
22 SUCH SITE OR SITES AS MAY BE NECESSARY, AND THE ESTABLISHMENT OF
23 SUCH SITES UNDER THIS SUBSECTION SHALL NOT BE SUBJECT TO ANY
24 LOCAL LAWS WHICH WOULD PRECLUDE OR PROHIBIT THE ESTABLISHMENT OF
25 SUCH SITES, INCLUDING ZONING ORDINANCES, AND ALL SUCH LAWS ARE
26 HEREBY PREEMPTED.
27 (G) CERTIFICATES OF PUBLIC NECESSITY.--THE COMMISSION SHALL
28 HAVE THE POWER AND ITS DUTY SHALL BE TO ISSUE CERTIFICATES OF
29 PUBLIC NECESSITY FOR THE ESTABLISHMENT OF HAZARDOUS WASTE
30 DISPOSAL OR TREATMENT FACILITIES, AS MAY BE NECESSARY AND
19870H1852B3632 - 32 -
1 APPROPRIATE. ANY PERSONS OR MUNICIPALITIES WHICH HAVE OBTAINED
2 ALL NECESSARY PERMITS FROM THE DEPARTMENT, OR OTHER APPROPRIATE
3 STATE OR FEDERAL AGENCIES, MAY APPLY TO THE COMMISSION FOR A
4 CERTIFICATE OF PUBLIC NECESSITY FOR A SITE PREVIOUSLY CERTIFIED
5 BY THE COMMISSION. IF GRANTED, SUCH CERTIFICATE SHALL SUSPEND
6 AND SUPERSEDE ANY AND ALL LOCAL LAWS WHICH WOULD PRECLUDE OR
7 PROHIBIT THE ESTABLISHMENT OF A HAZARDOUS WASTE TREATMENT OR
8 DISPOSAL FACILITY, INCLUDING ZONING ORDINANCES.
9 (H) TRANSFER OF DEPARTMENT POWER.--THE POWER OF THE BOARD TO
10 ISSUE CERTIFICATES OF PUBLIC NECESSITY AS PROVIDED IN SECTION
11 105(F) OF THE SOLID WASTE MANAGEMENT ACT, AND THE AUTHORITY OF
12 THE DEPARTMENT TO FACILITATE SITING AS PROVIDED IN SECTION 507
13 OF THE SOLID WASTE MANAGEMENT ACT ARE HEREBY TRANSFERRED TO THE
14 COMMISSION TO THE EXTENT THAT THEY RELATE TO HAZARDOUS WASTE
15 DISPOSAL OR TREATMENT FACILITIES.
16 (I) APPLICABILITY.--NOTHING IN THIS SECTION SHALL BE <--
17 CONSTRUED TO AFFECT, IMPAIR OR SUPERSEDE THE AUTHORITY OF THE
18 DEPARTMENT TO ISSUE A PERMIT FOR A HAZARDOUS WASTE FACILITY
19 PURSUANT TO THE ACT OF JULY 7, 1980 (P.L.380, NO.97), KNOWN AS
20 THE SOLID WASTE MANAGEMENT ACT.
21 CHAPTER 5
22 RESPONSE AND INVESTIGATION
23 Section 501. Response authorities.
24 (a) General rule.--Where there is a release or threat of
25 release from a site of a contaminant which presents a hazard to
26 the public health or safety or the environment or where a
27 hazardous substance is released or threatened to be released,
28 the department shall investigate and, if further response action
29 is deemed appropriate, the department may SHALL notify the <--
30 owner, operator or any other responsible party of such release
19870H1852B3632 - 33 -
1 or threat of a release and allow such person or persons to
2 investigate and undertake an appropriate response, or may
3 undertake any further investigation, interim response or
4 remedial response relating to the contaminant or hazardous
5 substance which the department deems necessary or appropriate to
6 protect the public health, safety or welfare or the environment.
7 (b) Effect on liability.--No response action taken by any
8 person shall be construed as an admission of liability for a
9 release or threatened release.
10 (c) Exclusion.--
11 (1) The department shall not provide for an interim
12 response or remedial response under this section in response
13 to a release or threat of release:
14 (i) of a naturally occurring substance in its
15 unaltered form, or altered solely through naturally
16 occurring processes or phenomena, from a location where
17 it is naturally found;
18 (ii) from products which are part of the structure
19 of, and result in exposure within, residential buildings
20 or business or community structures;
21 (iii) into public or private drinking water supplies
22 due to deterioration of the system through ordinary use;
23 or
24 (iv) from a coal mining operation under the
25 jurisdiction of the department or from a site eligible
26 for funding under Title IV of the Surface Mining Control
27 and Reclamation Act of 1977 (Public Law 95-87, 30 U.S.C.
28 § 1201 et seq.).
29 (2) Notwithstanding paragraph (1), to the extent
30 authorized by this section, the department may respond to a
19870H1852B3632 - 34 -
1 release or threat of release when, in the department's
2 discretion, it determines that the release or threat of
3 release constitutes a public health, safety, or environmental
4 emergency and that no other person with the authority and
5 capability to respond to the emergency will do so in a timely
6 manner.
7 (d) Investigations.--The department shall undertake OR CAUSE <--
8 TO BE UNDERTAKEN BY THE OWNER, OPERATOR OR ANY OTHER RESPONSIBLE
9 PARTY, AS PERMITTED UNDER SUBSECTION (A), investigations,
10 monitoring, surveys, testing and other similar activities
11 necessary or appropriate to identify the existence and extent of
12 the release or threat of release, the source and nature of the
13 hazardous substances or contaminants and the extent of danger to
14 the public health or welfare or the environment. The department
15 may also undertake planning, legal, fiscal, economic,
16 engineering, architectural and other studies or investigations
17 necessary or appropriate to plan and direct a response action,
18 to recover the costs of the response action and to enforce the
19 provisions of this act. The department shall undertake the
20 activities described in this subsection in one or more of the
21 following circumstances:
22 (1) When the department is authorized to act under
23 subsection (a).
24 (2) When the department has reason to believe that a
25 release of a hazardous substance or a contaminant has
26 occurred or is about to occur.
27 (3) When the department determines that illness or
28 disease or complaints of illness or disease may be
29 attributable to exposure to a hazardous substance or
30 contaminant.
19870H1852B3632 - 35 -
1 (e) Notice of investigations.--The department, upon
2 undertaking any investigation, interim response or remedial
3 response under this section, shall give prompt written notice
4 thereof to the owner and operator of the site and to the first
5 mortgagee holding a mortgage on the premises on which the site
6 is located.
7 (f) Bidding for remedial or removal actions.--
8 (1) The department may prequalify bidders for remedial
9 or removal actions taken under subsection (b). The department
10 may reject the bid of a prospective bidder who has not been
11 prequalified.
12 (2) To prequalify bidders, the department shall adopt,
13 by regulation, and apply a uniform system of rating bidders.
14 In order to obtain information for rating, the department may
15 require from prospective bidders answers to questions,
16 including, but not limited to, questions about the bidder's
17 financial ability; the bidder's experience in removal and
18 remedial action involving hazardous substances; the bidder's
19 past safety record; and the bidder's past performance on
20 Federal, State or local government projects. The department
21 may also require prospective bidders to submit financial
22 statements.
23 (3) The department shall utilize the business financial
24 data and information submitted by a bidder under this section
25 only for the purposes of prequalifying bidders and shall not
26 otherwise disclose this data or information.
27 Section 502. Priorities.
28 (a) List.--
29 (1) The department shall establish a temporary list of
30 priorities among sites with releases or threatened releases
19870H1852B3632 - 36 -
1 for the purpose of taking remedial response. The temporary
2 list, with necessary modifications, shall remain in effect
3 until the department promulgates regulations establishing
4 criteria for determining priorities among releases and
5 threatened releases, OR UNTIL 12 16 MONTHS AFTER THE <--
6 EFFECTIVE DATE OF THIS ACT, WHICHEVER IS SOONER. IN THE EVENT <--
7 THAT A PERMANENT PRIORITY LIST IS NOT ESTABLISHED WITHIN 16
8 MONTHS AFTER THE EFFECTIVE DATE OF THIS ACT, THE GENERAL
9 ASSEMBLY MAY PROVIDE, THROUGH CONCURRENT RESOLUTION, FOR THE
10 CONTINUATION OF THE TEMPORARY LIST FOR NO MORE THAN ONE YEAR,
11 UPON WRITTEN REQUEST BY THE DEPARTMENT. THE WRITTEN REQUEST
12 SHALL INCLUDE INFORMATION TO SUBSTANTIATE THE NEED FOR AN
13 EXTENSION OF THE TEMPORARY LIST. After regulations are
14 promulgated, a permanent priority list shall be established
15 and may be modified according to the criteria set forth in
16 the regulations. Before a list is established under this
17 subsection, the department shall publish the list in the
18 Pennsylvania Bulletin and allow 30 days for comments on the
19 list by the public. Remedial responses may be on-going at
20 more than one site at any given time.
21 (2) The temporary list shall be composed of the sites <--
22 following in priority those sites meeting the requirements of
23 the national priority listing of Appendix A of 40 CFR Part
24 300, but which do not qualify for national priority listing.
25 (3) The department, when it deems necessary for the
26 response to a release or for the protection of public health,
27 safety or welfare or the environment, may include additional
28 sites to the temporary list.
29 (3) THE TEMPORARY LIST SHALL LIST SITES IN DESCENDING <--
30 ORDER OF PRIORITY AND SHALL INCLUDE NO MORE THAN 20 SUCH
19870H1852B3632 - 37 -
1 SITES.
2 (2) THE TEMPORARY LIST SHALL BE COMPOSED OF SITES RANKED <--
3 BY THE ENVIRONMENTAL PROTECTION AGENCY OR THE DEPARTMENT
4 USING THE HAZARD RANKING SYSTEM ESTABLISHED UNDER THE FEDERAL
5 SUPERFUND ACT AND REGULATIONS THEREUNDER, BUT WHICH DO NOT
6 QUALIFY FOR NATIONAL PRIORITY LISTING.
7 (3) FOR THE PERIOD OF TIME THAT THE TEMPORARY LIST IS IN
8 EFFECT, NO MORE THAN 20 SITES SHALL BE LISTED. THESE SITES
9 SHALL BE LISTED IN DESCENDING ORDER OF PRIORITY.
10 (b) Criteria.--The temporary list and the regulations
11 required by subsection (a) shall be based upon the relative risk
12 or danger to public health and welfare or the environment,
13 taking into account, to the extent possible, the population at
14 risk, the hazardous potential of the hazardous substances or
15 contaminants at the sites, the potential for contamination of
16 drinking water supplies, the potential for direct human contact,
17 the potential for destruction of sensitive ecosystems, the
18 maximum usage of available Federal funds for sites which qualify
19 for the National Priority List, the administrative and financial
20 capabilities of the department and other appropriate factors AND <--
21 SHALL INCORPORATE THE HAZARD RANKING SYSTEM ESTABLISHED UNDER
22 THE FEDERAL SUPERFUND ACT.
23 (c) Status.--The placement or removal of a site with a
24 release or threatened release upon either the temporary priority
25 list or the permanent priority list shall not be deemed to be a
26 final action subject to review under Title 2 of the Pennsylvania
27 Consolidated Statutes (relating to administrative law and
28 procedure) or section 1921-A of the act of April 9, 1929
29 (P.L.177, No.175), known as The Administrative Code of 1929, nor
30 shall it confer a right or duty upon the department or any
19870H1852B3632 - 38 -
1 person, nor shall the placement of the site upon either the
2 temporary or permanent priority list preclude any responsible
3 person from undertaking a voluntary cleanup pursuant to this
4 act.
5 (d) Listing.--Ninety days prior to the placement of a site
6 upon the permanent list, the department shall notify the known
7 responsible persons of the proposed listing. The site shall not
8 be placed upon the list if a responsible person enters into a
9 settlement with the department which provides for the abatement
10 of the release or threatened release. Once a site has been
11 placed upon the list, it shall be removed upon the determination
12 by the department that the responsible person has complied with
13 the terms of the settlement and has initiated a cleanup.
14 (e) Rights preserved.--Nothing in this act shall be
15 interpreted to deprive any interested or aggrieved person of his
16 inherent right to bring an action in mandamus to correct
17 department actions under the standards currently recognized in
18 Pennsylvania equity practice.
19 Section 503. Information gathering and access.
20 (a) Authority.--The authority of this section shall be
21 exercised when there is a reasonable basis to believe there may
22 be a release or threat of release of a hazardous substance or
23 contaminant. The authority of this section shall be exercised
24 for the purposes of determining the need for response, choosing
25 or taking a response action under this act or otherwise
26 enforcing the provisions of this act.
27 (b) Information.--
28 (1) The department shall have access to information
29 relevant to any of the following:
30 (i) The identification, nature and quantity of
19870H1852B3632 - 39 -
1 materials which have been or are generated, treated,
2 stored or disposed of at a site or transported to a site.
3 (ii) The nature or extent of a release or threatened
4 release of a hazardous substance or pollutant or
5 contaminant at or from a site.
6 (iii) Information relating to the ability of a
7 person to pay for or to perform a response action.
8 (2) A person who has or may have information under
9 paragraph (1) shall, upon reasonable notice, either:
10 (i) grant the department access at all reasonable
11 times to a site or other place or property to inspect and
12 copy all documents or records relating to the matter; or
13 (ii) copy and furnish to the department all the
14 documents or records.
15 (c) Right of entry.--The department may enter at reasonable
16 times a site or other place or property in one or more of the
17 following circumstances:
18 (1) A hazardous substance or contaminant may be or has
19 been generated at, stored at, treated at, disposed of at or
20 transported from the place.
21 (2) A hazardous substance or contaminant has been or is
22 being or threatens to be released.
23 (3) Entry is needed to determine the need for response
24 to hazardous substance or contaminant or the appropriate
25 response or to effectuate a response action under this act.
26 (4) A release of a hazardous substance or contaminant
27 has occurred on a nearby property, and entry is required to
28 determine the extent of the release.
29 (5) There is a container or impoundment which is typical
30 of those used to contain or impound hazardous substances and
19870H1852B3632 - 40 -
1 entry is needed to determine the existence of a hazardous
2 substance.
3 (d) Inspection.--
4 (1) The department may inspect and obtain samples from a
5 site or other place or property referred to in subsection (c)
6 or from a location of a suspected hazardous substance or
7 contaminant. The department's right of inspection shall
8 include the sampling of solids, liquids and gases;
9 excavations for soil sampling; drilling and maintenance of
10 wells to monitor groundwater; and the installation and
11 maintenance of other equipment to monitor the nature or
12 extent of a release of a suspected hazardous substance or
13 contaminant. The department may inspect and obtain samples of
14 containers or labeling for suspected hazardous substances or
15 contaminants. Each inspection shall be completed with
16 reasonable promptness.
17 (2) When the department obtains samples, before leaving
18 the premises, it shall give to the owner, operator, tenant or
19 other person in charge of the place from which the samples
20 were obtained a receipt describing the sample obtained and,
21 when requested, a portion of the sample. A copy of the
22 results of an analysis made of the samples shall be furnished
23 promptly to the owner, operator, tenant or other person in
24 charge when the person can be located.
25 (e) Duty to cooperate with response action.--
26 (1) The following persons shall allow the department
27 access or right of entry and inspection as may be reasonably
28 necessary to determine the nature and extent of a release of
29 a hazardous substance or contaminant:
30 (i) A person who owns or occupies land on which
19870H1852B3632 - 41 -
1 there is a release or threat of a release of a hazardous
2 substance or contaminant.
3 (ii) A person who owns or occupies land which is
4 near the site of a release or threatened release.
5 (iii) A person who owns or occupies land on which
6 there is a container or impoundment typical of those used
7 to contain or impound hazardous substances.
8 (iv) A person who is a responsible person under
9 section 701.
10 (2) The following persons shall allow the department
11 access or right of entry and inspection as may be reasonably
12 necessary to perform a response under section 501:
13 (i) A person who owns or occupies land on which
14 there is a release or a threat of release of a hazardous
15 substance or contaminant.
16 (ii) A person who owns or occupies land which may be
17 affected by the release of a hazardous substance or
18 contaminant.
19 (iii) A person who is a responsible person under
20 section 701.
21 (f) Remedies.--
22 (1) In addition to any other remedy provided by this
23 act, the department may enforce the provisions of this
24 section by issuing orders requiring access to information,
25 requiring entry onto property and restraining interference
26 with any response action. An order issued under this section
27 may be appealed to the board under section 1921-A of the act
28 of April 9, 1929 (P.L.177, No.175), known as The
29 Administrative Code of 1929.
30 (2) The department may immediately apply to a court of
19870H1852B3632 - 42 -
1 competent jurisdiction to enforce its order, unless the board
2 has issued a supersedeas. The court shall immediately enforce
3 the department's order upon finding all of the following:
4 (i) The order is authorized by this act.
5 (ii) There has not been full compliance with the
6 order.
7 (3) In lieu of issuing an order under paragraph (1), the
8 department may apply immediately to a court of competent
9 jurisdiction for the same relief.
10 (4) When the board reviews an order issued under
11 paragraph (1), or when a court reviews the department's
12 request for immediate relief under paragraph (3), the board
13 shall uphold the department's order and the court shall grant
14 the requested relief where all of the following are
15 established:
16 (i) The department has a reasonable basis to believe
17 that there may be a release or a threat of a release of a
18 hazardous substance or contaminant.
19 (ii) The order or relief requested is reasonably
20 related to determining the need for a response, to
21 choosing or taking any response or to otherwise enforcing
22 the provisions of this act.
23 (5) Except as provided in this subsection, there shall
24 be no administrative or judicial review of action by the
25 department or its agents to obtain access to information, to
26 obtain entry onto property or to perform work on the property
27 in connection with a response action. Neither the board nor
28 any court may restrain action of the department under this
29 section unless all of the following apply:
30 (i) The person seeking to restrain the department
19870H1852B3632 - 43 -
1 has given the department a 30-day written notice of his
2 intent to do so.
3 (ii) The department has failed to issue an order
4 within the 30-day period.
5 (6) The minimum civil penalty assessed under section
6 1104 for a violation of an order issued under this section
7 shall be $5,000 for each day the order is violated.
8 (g) Other remedies.--Nothing in this subsection shall
9 preclude the department from securing access or obtaining
10 information in any other lawful manner.
11 (h) Public records.--
12 (1) Except as provided in this subsection, records,
13 reports or other information obtained under this act shall be
14 available to the public for inspection or copying during
15 regular business hours. The department may, upon request,
16 designate records, reports or information as confidential
17 when the person providing the information demonstrates all of
18 the following:
19 (i) The information contains the trade secrets,
20 processes, operations, style of work or apparatus of a
21 person or is otherwise confidential business information,
22 including information obtained under subsection
23 (b)(1)(iii).
24 (ii) The information does not relate to health or
25 safety effects of a hazardous substance or contaminant.
26 (2) When submitting information to the department under
27 this act, a person shall designate the information which the
28 person believes is confidential or shall submit that
29 information separately from other information being
30 submitted.
19870H1852B3632 - 44 -
1 (i) Use of force.--When a person refuses to allow the
2 department to have access to information under subsection (c) or
3 entry onto property under subsection (d), the department shall
4 not use force to obtain the information or entry unless one of
5 the following applies:
6 (1) The department has obtained a search warrant or
7 initiated an action under subsection (f).
8 (2) Immediate action is needed to protect the public
9 health or safety or the environment.
10 Section 504. Cleanup standards. <--
11 (a) General rule.--Final remedial responses under this act
12 shall meet all standards, requirements, criteria or limitations
13 which are legally applicable or relevant and appropriate under
14 the circumstances presented by the release or threatened release
15 of the hazardous substance or contaminant. Cleanup standards
16 promulgated or ordered under this act shall be at least as
17 stringent as those promulgated under the Federal Superfund Act.
18 (b) Rulemaking.--The department shall promulgate the
19 standards, requirements, criteria or limitations that are
20 generally applicable to remedial responses to releases of
21 hazardous substances or contaminants by regulation, or by
22 providing actual notice to a responsible person of the
23 applicable, or relevant and appropriate, requirements.
24 (c) Form.--The department's standards for remedial responses
25 may include, but are not limited to, regulations, policies,
26 guidelines, design manuals, plans, executive orders, forms and
27 modules and other documents used in environmental programs
28 administered by the department.
29 (d) Special standards.--In addition to the promulgation of
30 State standards, requirements, criteria or limitations which are
19870H1852B3632 - 45 -
1 generally applicable, the department may add special standards
2 on a case-by-case basis in order to assure protection of human
3 health and the environment.
4 (e) Modification.--The department may modify otherwise
5 applicable requirements when any of the following apply:
6 (1) Compliance with a requirement at a site will result
7 in greater risk to the public health and the environment than
8 alternative options.
9 (2) Compliance with a requirement at a site is
10 technically infeasible from an engineering perspective.
11 (3) The remedial response selected will attain a
12 standard of performance that is equivalent to that required
13 under the otherwise applicable requirement, through use of
14 another method or approach which is more cost effective.
15 (f) Fund money.--In addition to the provisions of subsection
16 (e), when the response action is to be done using only fund
17 money, the department may waive requirements that might
18 otherwise be applicable to a response at the site undertaken by
19 a responsible person if it determines the waiver to be in the
20 public interest.
21 (g) Permits.--When prior written approval is obtained from
22 the department, no State or local permits shall be required for
23 a response action conducted entirely on the site, provided that
24 the response action complies with standards pursuant to this
25 section.
26 (h) Review.--Any action taken by the department under this
27 section shall be subject to judicial or administrative review
28 only as provided in section 508.
29 SECTION 504. CLEANUP STANDARDS. <--
30 (A) GENERAL RULE.--FINAL REMEDIAL ACTIONS UNDER THIS ACT
19870H1852B3632 - 46 -
1 SHALL MEET ALL STANDARDS, REQUIREMENTS, CRITERIA OR LIMITATIONS
2 WHICH ARE LEGALLY APPLICABLE OR RELEVANT AND APPROPRIATE UNDER
3 THE CIRCUMSTANCES PRESENTED BY THE RELEASE OR THREATENED RELEASE
4 OF THE HAZARDOUS SUBSTANCE OR CONTAMINANT AND WHICH PROVIDE FOR
5 COST-EFFECTIVE RESPONSES. CLEANUP STANDARDS PROMULGATED UNDER
6 THIS ACT SHALL BE CONSISTENT WITH THOSE ESTABLISHED UNDER THE
7 FEDERAL SUPERFUND ACT. PENDING PROMULGATION OF REGULATIONS
8 REQUIRED BY SUBSECTION (B), THE CLEANUP STANDARDS ESTABLISHED
9 UNDER THE FEDERAL SUPERFUND ACT SHALL APPLY TO ALL REMEDIAL
10 ACTIONS.
11 (B) RULEMAKING.--THE DEPARTMENT SHALL PROMULGATE THE
12 STANDARDS, REQUIREMENTS, CRITERIA OR LIMITATIONS THAT ARE
13 GENERALLY APPLICABLE TO REMEDIAL RESPONSES TO RELEASES OF
14 HAZARDOUS SUBSTANCES OR CONTAMINANTS BY REGULATION.
15 (C) SPECIAL STANDARDS.--THE DEPARTMENT MAY ADD, WITHOUT <--
16 RULEMAKING UNDER SUBSECTION (B), SPECIAL STANDARDS, MORE
17 STRINGENT THAN FEDERAL CLEANUP STANDARDS, ON A CASE-BY-CASE
18 BASIS IF BOTH ANY OF THE FOLLOWING APPLY: <--
19 (1) THE CIRCUMSTANCES AT THE SITE ARE SUCH THAT THE
20 APPLICABLE FEDERAL STANDARD, AS APPLIED, WOULD NOT PROVIDE
21 THE DEGREE OF PROTECTION TO PUBLIC HEALTH OR THE ENVIRONMENT
22 INTENDED BY THE FEDERAL STANDARD.
23 (2) THE ADDITIONAL DEGREE OF ENVIRONMENTAL PROTECTION <--
24 PROVIDED BY THE SPECIAL STANDARD IS PROPORTIONATE TO THE
25 INCREMENTAL COST OF IMPLEMENTING IT.
26 (D) MODIFICATION.--THE DEPARTMENT MAY WAIVE OTHERWISE
27 APPLICABLE REQUIREMENTS IF ANY OF THE FOLLOWING APPLY:
28 (1) COMPLIANCE WITH A REQUIREMENT AT A SITE WILL RESULT
29 IN GREATER RISK TO THE PUBLIC HEALTH AND THE ENVIRONMENT THAN
30 ALTERNATIVE OPTIONS.
19870H1852B3632 - 47 -
1 (2) COMPLIANCE WITH A REQUIREMENT AT A SITE IS
2 TECHNICALLY INFEASIBLE FROM AN ENGINEERING PERSPECTIVE.
3 (3) THE REMEDIAL ACTIONS SELECTED WILL ATTAIN A STANDARD
4 OF PERFORMANCE THAT IS EQUIVALENT TO THAT REQUIRED UNDER THE
5 OTHERWISE APPLICABLE REQUIREMENT THROUGH USE OF ANOTHER
6 METHOD OR APPROACH.
7 (4) THE REMEDIAL ACTION SELECTED WILL NOT PROVIDE FOR
8 COST-EFFECTIVE RESPONSE.
9 (E) FUND MONEY.--IN ADDITION TO THE PROVISIONS OF SUBSECTION
10 (D), IF THE RESPONSE ACTION IS TO BE DONE USING ONLY FUND MONEY,
11 THE DEPARTMENT MAY WAIVE REQUIREMENTS THAT MIGHT OTHERWISE BE
12 APPLICABLE TO A RESPONSE AT THE SITE UNDERTAKEN BY A RESPONSIBLE
13 PERSON IF IT DETERMINES THE WAIVER TO BE IN THE PUBLIC INTEREST.
14 (F) PERMITS.--NO STATE OR LOCAL PERMITS SHALL BE REQUIRED
15 FOR A RESPONSE ACTION CONDUCTED ENTIRELY ON THE SITE IF PRIOR
16 WRITTEN APPROVAL IS OBTAINED FROM THE DEPARTMENT.
17 (G) REVIEW.--ANY ACTION TAKEN BY THE DEPARTMENT UNDER THIS
18 SECTION SHALL BE SUBJECT TO JUDICIAL OR ADMINISTRATIVE REVIEW.
19 Section 505. Development and implementation of response
20 actions.
21 (a) Basis.--The selection of a remedial response shall be
22 based upon the administrative record developed under section
23 506.
24 (b) Interim response.--An interim response may be taken
25 before the development of an administrative record when, upon
26 the basis of the information available to the department at the
27 time of the interim response, there is a reasonable basis to
28 believe that prompt action is required to protect the public
29 health or safety or the environment. When the department takes
30 an interim response before the development of an administrative
19870H1852B3632 - 48 -
1 record, it shall provide the notice required by section 506(b)
2 within 30 days of initiating the response action. In addition to
3 the information required by section 506(b), the notice shall
4 describe the actions which have already been taken and any
5 additional actions to be taken prior to the close of the public
6 comment period under section 506(c).
7 (c) Implementation of action.--After the selection of an
8 interim response or a remedial response, the department may
9 implement all or any part of the selected action by doing any of
10 the following:
11 (1) Issuing an order to a responsible person. This
12 paragraph does not prohibit action under paragraph (2).
13 (2) Taking the action itself. This paragraph does not
14 prohibit action under paragraph (1).
15 (d) Orders.--Orders issued under this section include, but
16 are not limited to:
17 (1) Orders requiring a responsible person to take a
18 response action.
19 (2) Orders restraining a person from interfering with a
20 response action.
21 (3) Orders modifying a response action, including
22 response actions which had been previously approved by the
23 department.
24 (e) Judicial action.--The department may file an action to
25 enforce an order issued under this section in Commonwealth Court
26 or in any other court of competent jurisdiction. The department
27 may include in the same action a civil penalty assessment under
28 section 1104. When the department files such an action, its
29 order shall be enforced and its civil penalty assessment shall
30 be upheld unless the person subject to the order or the civil
19870H1852B3632 - 49 -
1 penalty can demonstrate that the department acted arbitrarily
2 and capriciously on the basis of the administrative record
3 developed under section 506.
4 (f) Costs.--
5 (1) When the department issues an order under this
6 section, a person subject to the order may seek to recover
7 from the fund the cost of complying with the order by filing
8 an action with the board after completion of the response
9 action. The action must be filed within 60 days after the
10 completion of the required action. To recover costs, the
11 person must demonstrate by a preponderance of the evidence,
12 upon the basis of the administrative record developed under
13 section 506, all of the following:
14 (i) The person was not a responsible person under
15 this act.
16 (ii) The costs sought to be recovered are reasonable
17 in light of the action required by the order.
18 (2) A person subject to an order under this act may also
19 recover reasonable costs for that portion of the response
20 action ordered which the person can demonstrate to be
21 arbitrary and capricious on the basis of the administrative
22 record developed under section 506.
23 (g) Voluntary settlements.--The department, in its
24 discretion, may enter into an agreement with any person,
25 including a person who may be liable under section 701, to
26 perform any response action when the department determines that
27 such action will be properly done in accordance with the
28 department's standards and after such person has submitted a
29 plan and obtained the department's approval of such plan.
30 Whenever practicable and in the public interest, the department
19870H1852B3632 - 50 -
1 may enter into agreements under this section in order to
2 expedite efficient remedial action and minimize litigation. The
3 decision of the department to use or not to use the procedures
4 of this subsection is not subject to judicial review.
5 (H) MIXED FUNDING.--AN AGREEMENT UNDER THIS SECTION MAY <--
6 PROVIDE THAT THE DEPARTMENT WILL PAY FROM THE FUND A CERTAIN
7 PORTION OF THE TOTAL RESPONSE COSTS OR THE COST OF CERTAIN
8 RESPONSE ACTIONS. THE DEPARTMENT SHALL, TO THE EXTENT
9 PRACTICABLE, ENTER INTO MIXED FUNDING SETTLEMENTS FOR THAT
10 PORTION OF THE RESPONSE COSTS OR DAMAGES ALLOCABLE TO PERSONS
11 AGAINST WHOM RECOVERY CANNOT BE OBTAINED BY REASON OF
12 INSOLVENCY, DISSOLUTION, LACK OF JURISDICTION BY PENNSYLVANIA
13 COURTS OR OTHER SIMILAR REASONS.
14 (I) DISCRETIONARY COVENANTS.--TO ENCOURAGE THE VOLUNTARY AND
15 TIMELY COOPERATION OF RESPONSIBLE PARTIES IN THE CLEANUP OF
16 CERTAIN HAZARDOUS WASTE SITES, THE DEPARTMENT MAY, IN ITS
17 DISCRETION, PROVIDE ANY PERSON WITH A COVENANT NOT TO SUE
18 CONCERNING ANY LIABILITY TO THE COMMONWEALTH UNDER THIS ACT,
19 INCLUDING FUTURE LIABILITY, RESULTING FROM A RELEASE OR
20 THREATENED RELEASE OF A HAZARDOUS SUBSTANCE ADDRESSED BY AN
21 ONSITE REMEDIAL ACTION WHERE:
22 (1) THE COVENANT NOT TO SUE IS IN THE PUBLIC INTEREST.
23 (2) THE COVENANT NOT TO SUE WOULD EXPEDITE RESPONSE
24 ACTION CONSISTENT WITH SECTIONS 102 AND 104.
25 (3) THE RESPONSE ACTION HAS BEEN APPROVED BY THE
26 DEPARTMENT.
27 (J) SPECIAL COVENANTS NOT TO SUE.--IN THE CASE OF ANY PERSON
28 TO WHOM THE DEPARTMENT IS AUTHORIZED UNDER SUBSECTION (C) TO
29 PROVIDE A COVENANT NOT TO SUE, THE DEPARTMENT SHALL PROVIDE SUCH
30 A PERSON WITH A COVENANT NOT TO SUE WITH RESPECT TO FUTURE
19870H1852B3632 - 51 -
1 LIABILITY TO THE COMMONWEALTH UNDER THIS ACT FOR A FUTURE
2 RELEASE OR THREATENED RELEASE OF HAZARDOUS SUBSTANCES FROM SUCH
3 FACILITY FOR THE PORTION OF REMEDIAL ACTION WHICH INVOLVES THE
4 TREATMENT OF HAZARDOUS SUBSTANCES SO AS TO DESTROY, ELIMINATE OR
5 PERMANENTLY IMMOBILIZE THE HAZARDOUS CONSTITUENTS OF SUCH
6 SUBSTANCES, SO THAT, IN THE JUDGMENT OF THE DEPARTMENT, THE
7 SUBSTANCES NO LONGER PRESENT A CURRENT OR CURRENTLY FORESEEABLE
8 FUTURE SIGNIFICANT RISK TO PUBLIC HEALTH, WELFARE OR THE
9 ENVIRONMENT, NO BY-PRODUCT OF THE TREATMENT OR DESTRUCTION
10 PROCESS PRESENTS ANY SIGNIFICANT HAZARD TO PUBLIC HEALTH,
11 WELFARE OR THE ENVIRONMENT; AND A PERSON PROVIDED SUCH COVENANT
12 NOT TO SUE SHALL NOT BE LIABLE TO THE COMMONWEALTH UNDER THIS
13 ACT WITH RESPECT TO SUCH A RELEASE OR THREATENED RELEASE AT A
14 FUTURE TIME.
15 (K) REQUIREMENT THAT REMEDIAL ACTION BE COMPLETED.--A
16 COVENANT NOT TO SUE CONCERNING FUTURE LIABILITY TO THE
17 COMMONWEALTH SHALL TAKE EFFECT WHEN THE DEPARTMENT CERTIFIES
18 THAT REMEDIAL ACTION HAS BEEN SUBSTANTIALLY COMPLETED, IN
19 ACCORDANCE WITH THE REQUIREMENTS OF THIS ACT, AT THE SITE THAT
20 IS THE SUBJECT OF SUCH COVENANT.
21 (L) FACTORS.--IN ASSESSING THE APPROPRIATENESS OF A COVENANT
22 NOT TO SUE UNDER SUBSECTION (C) AND ANY CONDITION TO BE INCLUDED
23 IN A COVENANT NOT TO SUE UNDER SUBSECTION (C) OR (D), THE
24 DEPARTMENT SHALL CONSIDER WHETHER THE COVENANT OR CONDITION IS
25 IN THE PUBLIC INTEREST ON THE BASIS OF FACTORS COMPARABLE WITH,
26 BUT NOT STRICTER THAN, THOSE ENUMERATED IN SECTION 122(F)(4) OF
27 THE FEDERAL SUPERFUND ACT.
28 Section 506. Administrative record.
29 (a) Contents.--The administrative record upon which a
30 response action is based shall consist of all of the following:
19870H1852B3632 - 52 -
1 (1) The notice issued under subsection (b).
2 (2) The department's description of the action and the <--
3 information which supports the action.
4 (2) ALL INFORMATION, DATA, STUDIES AND REPORTS KNOWN TO <--
5 THE DEPARTMENT RELATING TO THE RELEASE OR THREATENED RELEASE,
6 AND TO THE SELECTION, DESIGN AND ADEQUACY OF THE RESPONSE
7 ACTION.
8 (2) INFORMATION, INCLUDING, BUT NOT LIMITED TO, STUDIES, <--
9 INSPECTION REPORTS, SAMPLE RESULTS AND PERMIT FILES, WHICH IS
10 KNOWN AND REASONABLY AVAILABLE TO THE DEPARTMENT AND WHICH
11 RELATES TO THE RELEASE OR THREATENED RELEASE AND TO THE
12 SELECTION, DESIGN AND ADEQUACY OF THE RESPONSE ACTION.
13 (3) Written comments submitted during the public comment
14 period under subsection (c).
15 (4) Transcripts of comments made at the public hearing
16 held under subsection (d).
17 (5) The department's statement of the basis and purpose
18 for its decision, including findings of fact, an analysis of
19 the alternatives considered and the reasons for selecting the
20 proposed response action, and its response to significant
21 comments made during the public comment period.
22 (6) The docket maintained under subsection (f), listing
23 the contents of the administrative record.
24 (b) Notice.--
25 (1) The department shall issue a notice setting forth
26 all of the following:
27 (i) A brief analysis of the response action and
28 alternative actions that were considered.
29 (ii) The time and place during which the information
30 listed on the docket maintained under subsection (f) may
19870H1852B3632 - 53 -
1 be inspected and copied.
2 (iii) A specified time and place for providing
3 written comments on the response action.
4 (iv) The time and place at which a public hearing
5 will be held to receive oral comments on the response
6 action.
7 (2) The notice shall be mailed to responsible persons
8 whose identities and addresses are known to the department.
9 IN ADDITION, NOTICE SHALL BE MAILED TO ALL HOLDERS OF LIENS <--
10 OF RECORD FILED AGAINST ALL PROPERTIES SUBJECT TO SECTION
11 509(B). The notice shall also be published in a newspaper of
12 general circulation in the area in which the release has
13 occurred and in the Pennsylvania Bulletin. The failure to
14 provide this notice does not affect a responsible person's
15 liability under this act.
16 (c) Public comment.--
17 (1) The public comment period shall extend for at least
18 90 days from the date that notice is published in the
19 Pennsylvania Bulletin. During the public comment period the
20 department shall make available for inspection during normal
21 business hours all of the following:
22 (i) The department's description of the response
23 action.
24 (ii) The information supporting the response action. <--
25 (II) ALL INFORMATION, DATA, STUDIES AND REPORTS <--
26 KNOWN TO THE DEPARTMENT RELATING TO THE RELEASE OR
27 THREATENED RELEASE, AND TO THE SELECTION, DESIGN AND
28 ADEQUACY OF THE RESPONSE ACTION.
29 (II) INFORMATION, INCLUDING, BUT NOT LIMITED TO, <--
30 STUDIES, INSPECTION REPORTS, SAMPLE RESULTS AND PERMIT
19870H1852B3632 - 54 -
1 FILES, WHICH IS KNOWN AND REASONABLY AVAILABLE TO THE
2 DEPARTMENT AND WHICH RELATES TO THE RELEASE OR THREATENED
3 RELEASE AND TO THE SELECTION, DESIGN AND ADEQUACY OF THE
4 RESPONSE ACTION.
5 (iii) Written comments submitted during the public
6 comment period.
7 (iv) The docket maintained under subsection (f).
8 (2) The public comment period shall extend at least 30
9 days after the public hearing to provide an opportunity for
10 the submission of rebuttal and supplementary information.
11 (d) Public hearing.--At least one public hearing shall be
12 conducted near the site of the response action to allow
13 interested persons to give oral or written comments. A
14 transcript shall be kept of oral presentations. The hearing
15 shall be scheduled at least 30 days after the publication of the
16 notice in the Pennsylvania Bulletin.
17 (e) Decision.--At the close of the public comment period,
18 the department shall file a statement of the basis and purpose
19 for its decision. THE STATEMENT SHALL INCLUDE FINDINGS OF FACT, <--
20 AN ANALYSIS OF THE ALTERNATIVES CONSIDERED AND THE REASONS FOR
21 SELECTING THE PROPOSED RESPONSE ACTION. It shall include an
22 explanation of any major changes in the response action from
23 that described in the notice. The department shall also file a
24 response to each of the significant comments, criticisms and new
25 data submitted in oral or written presentations during the
26 public comment period.
27 (f) Docket.--The department shall maintain a docket listing
28 of all the items which form the administrative record, and it
29 shall notify a person submitting a comment that it has been
30 entered on the docket. It shall be the responsibility of the
19870H1852B3632 - 55 -
1 person submitting written comments to either verify that the
2 comments have been noted on the docket or to notify the
3 department, before the end of the public comment period, that
4 the docket does not note the submitted written comment.
5 (g) Closing.--The administrative record shall be closed,
6 once the department has filed its statement and response under
7 subsection (e). The department's decision may not be based, in
8 whole or in part, upon information which has not been noted on
9 the docket as of the date the administrative record is closed.
10 The administrative record may be reopened only for any of the
11 following reasons:
12 (1) Additional information which the department
13 determines to be of central relevance to the selected action
14 is obtained during the implementation of the response action.
15 (2) A person raising an objection to the response action
16 can demonstrate that it was impracticable to raise the
17 objection during the public comment period or that the
18 grounds for the objection arose after the public comment
19 period.
20 (3) The department wishes to document its response
21 costs.
22 (4) A case is remanded to the department under section
23 508.
24 (h) Reopening.--To reopen the administrative record, the
25 department shall provide a notice setting forth the purpose of
26 the reopening and the time and place for submitting written
27 comments during a 60-day public comment period. The department
28 may hold a public hearing if a written request is received
29 within 30 days of publication of the notice of reopening. The
30 docket shall note additional information submitted by the
19870H1852B3632 - 56 -
1 department, written comments, oral comments made at the public
2 hearing and the department's responses to the significant
3 comments. The department's decision not to reopen the
4 administrative record may only be reviewed as provided in
5 section 508.
6 Section 507. Recovery of response costs.
7 (a) General rule.--A responsible person under section 701 or
8 a person who causes a release or threat of a release of a
9 hazardous substance or causes a public nuisance shall be liable
10 for the response costs and for damages to natural resources. The
11 department, a Commonwealth agency, or a municipality which
12 undertakes to abate a public nuisance or take a response action
13 may recover those response costs and natural resource damages in
14 an action in equity brought before a court of competent
15 jurisdiction. In addition, the board is given jurisdiction over
16 actions by the department to recover response costs and damages
17 to natural resources.
18 (b) Amount.--In an action to recover response costs and
19 natural resource damages, the department shall include
20 administrative and legal costs incurred from its initial
21 investigation up to the time that it recovers its costs. The
22 amount attributable to administrative and legal costs shall be
23 10% of the amount paid for the response action or the actual
24 costs, whichever is greater.
25 (c) Punitive damages.--A person who WILLFULLY fails to <--
26 comply with an order of the department requiring a response
27 action or the abatement of a public nuisance shall be liable for
28 punitive damages in an amount which is at least equal to but not
29 more than three times the costs recoverable under this section.
30 A party shall not be liable for punitive damages when a court
19870H1852B3632 - 57 -
1 reviewing the order under section 508 finds that the
2 department's order was invalid as to that party.
3 (d) Effect of damages assessment.--A determination or
4 assessment of damages to natural resources for the purposes of
5 this act, the Federal Superfund Act, or section 311 of the
6 Federal Water Pollution Control Act (62 Stat. 1155, 33 U.S.C. §
7 1321) made by the department or other trustee shall have the
8 force and effect of a rebuttable presumption on behalf of the
9 trustee in an administrative or judicial proceeding under this
10 act, the Federal Superfund Act or section 311 of the Federal
11 Water Pollution Act.
12 (e) Civil penalty.--When the department files an action to
13 recover its response costs and natural resources damage
14 assessment, it may also seek civil penalties under section 1104.
15 The department's entitlement to recover its response costs, its
16 assessment of natural resources' damages and its assessment of
17 civil penalties shall be reviewed solely upon the basis of the
18 administrative record developed under section 506. Its right to
19 recover response costs, natural resources' damages and civil
20 penalties shall be upheld unless the liable person can
21 demonstrate that the department acted arbitrarily and
22 capriciously on the basis of the administrative record developed
23 under section 506.
24 (f) Recycled oil.--
25 (1) When recycled oil is not mixed with any other
26 hazardous substance and is stored, treated, transported and
27 otherwise managed in compliance with regulations or standards
28 promulgated under applicable State and Federal law relating
29 to recycled oil, then all of the following apply:
30 (i) No person may recover from a service station
19870H1852B3632 - 58 -
1 operator, under section 702(a)(2) or (3), response costs
2 or damages resulting from a release or threatened release
3 of recycled oil.
4 (ii) Section 1102 does not apply against a service
5 station operator other than a service station operator
6 described in section 702(a)(1).
7 (2) For purposes of this subsection, a service station
8 operator may presume that a small quantity of used oil is not
9 mixed with other hazardous substances when it has been
10 removed from the engine of a motor vehicle or appliance by
11 the owner of the vehicle or appliance and is presented to the
12 operator for collection, accumulation and delivery to an oil
13 recycling facility.
14 Section 508. Administrative and judicial review of response
15 actions.
16 (a) General rule.--Notwithstanding any other provision of
17 law, the provisions of this section shall provide the exclusive
18 method of challenging either the administrative record developed
19 under section 506 or a decision of the department based upon the
20 administrative record.
21 (b) Timing of review.--Neither the board nor a court shall
22 have jurisdiction to review THE SELECTION AND ADEQUACY OF a <--
23 response action taken by the department or ordered by the <--
24 department under section 505 until the department files an
25 action to enforce the order or to recover its response costs. <--
26 (c) Grounds.--A challenge to THE SELECTION AND ADEQUACY OF a <--
27 response action shall be limited to the administrative record
28 developed under section 506. In a challenge to a response
29 action, an objection shall be waived unless it was raised during
30 the public comment period provided under section 506(c).
19870H1852B3632 - 59 -
1 Notwithstanding any provision of section 1921-A of the act of
2 April 9, 1929 (P.L.177, No.175), known as The Administrative
3 Code of 1929, the record for judicial or administrative review
4 shall consist exclusively of the material referred to in section
5 506(a).
6 (d) Procedural errors.--Procedural errors in the development
7 of the administrative record shall not be a basis for
8 challenging a response action unless the errors were so serious
9 and related to matters of such central relevance to the response
10 action that the action would have been significantly changed had
11 the errors not been made. The person asserting the significance
12 of the procedural errors shall have the burden of proving that
13 the action would have been significantly changed.
14 (e) Remand.--When a response action is demonstrated to be
15 arbitrary and capricious on the basis of the administrative
16 record developed under section 506, or when a procedural error
17 occurred in the development of the administrative record which
18 (error) would have significantly changed the response action,
19 the following apply:
20 (1) When additional information could affect the outcome
21 of the case, the matter shall be remanded to the department
22 for reopening the administrative record.
23 (2) When additional information could not affect the
24 outcome of the case, the department's enforcement of its
25 order or its recovery of response costs shall be limited only
26 as to that portion of the response action found to be
27 arbitrary and capricious or the result of a procedural error
28 which would have significantly changed the action.
29 Section 509. Private cause of action. <--
30 Any person responsible for a release of a hazardous substance
19870H1852B3632 - 60 -
1 under this act shall also be strictly liable for any personal
2 injury or property damage resulting from the release or for any
3 response costs incurred which are not inconsistent with a
4 departmental action pursuant to section 505.
5 Section 510. Superlien.
6 (a) Limit of lien.--The lien shall be limited to the amount
7 of the judgment for costs and penalties as provided in
8 subsection (b); and shall not apply to property used as
9 residential property as provided in subsection (d).
10 (b) Establishment.--An award of response costs, assessment
11 of natural resources' damages or assessment of civil penalties
12 shall constitute a judgment against the party found liable. This
13 judgment may be collected in any manner provided by law. The
14 department shall send a notice of lien to the prothonotary or
15 equivalent official of the county in which the responsible party
16 has real or personal property, setting forth the amount of the
17 award of costs, of the assessment of damages and of the
18 assessment of penalties. The prothonotary or equivalent official
19 shall promptly enter upon the civil judgment or order docket the
20 name and address of the responsible party and the amount of the
21 lien as set forth in the notice of lien. Upon entry by the
22 prothonotary, the lien shall attach to the revenue and all real
23 and personal property of the responsible party, whether or not
24 the responsible party is insolvent.
25 (c) Registry.--There is established a central registry of
26 all liens filed under this act in the Department of State. The
27 Commonwealth shall file a notice of lien with the Secretary of
28 the Commonwealth in addition to filings with a prothonotary or
29 equivalent official.
30 (d) Priority.--The notice of lien filed under this section
19870H1852B3632 - 61 -
1 shall create a lien with priority over all other claims or liens
2 filed. When the property is used for residential purposes, this
3 notice of lien shall not affect a valid lien, right or interest
4 in the property filed in accordance with established procedures
5 prior to the filing of this notice of lien. For purposes of this
6 section, residential purposes include all mortgages eligible for
7 purchase by a corporate instrumentality of the United States
8 Government.
9 (e) Certain interests not affected.--The notice of lien
10 shall not affect a lien, mortgage or security interest in the
11 property which secures a loan or extension of credit if the loan
12 or extension of credit, or the commitment to make the loan or
13 extension of credit, was made in good faith and without
14 knowledge that there were hazardous substances on the property
15 and if prior to the time the loan or commitment was made the
16 lender received a written report of an actual inspection of the
17 property, within a reasonable time immediately prior to the date
18 of the loan or commitment, which did not reveal any indication
19 of the presence of hazardous substances.
20 (f) Time.--The notice of lien filed under this section
21 affecting property of a responsible person which is not the
22 subject of a response action shall have priority from the day of
23 the filing of the notice of the lien over all other claims and
24 liens filed against the property; but it shall not affect any
25 valid lien, right, or interest in the property filed in
26 accordance with established procedure prior to the filing of a
27 notice of lien under this subsection.
28 (g) Notice.--Notice shall be mailed to all known holders of
29 liens of record filed against parties subject to this section.
30 SECTION 509. LIEN. <--
19870H1852B3632 - 62 -
1 (A) ESTABLISHMENT.--AN AWARD OF RESPONSE COSTS, ASSESSMENT
2 OF NATURAL RESOURCES' DAMAGES OR ASSESSMENT OF CIVIL PENALTIES
3 SHALL CONSTITUTE A JUDGMENT AGAINST THE RESPONSIBLE PERSON. THE
4 JUDGMENT MAY BE COLLECTED IN ANY MANNER PROVIDED BY LAW. THE
5 DEPARTMENT SHALL SEND A NOTICE OF LIEN TO THE PROTHONOTARY OR
6 EQUIVALENT OFFICIAL OF THE COUNTY IN WHICH THE RESPONSIBLE PARTY
7 HAS REAL OR PERSONAL PROPERTY, SETTING FORTH THE AMOUNT OF THE
8 AWARD OF COSTS, OF THE ASSESSMENT OF DAMAGES AND OF THE
9 ASSESSMENT OF PENALTIES. THE PROTHONOTARY OR EQUIVALENT OFFICIAL
10 SHALL PROMPTLY ENTER UPON THE CIVIL JUDGMENT OR ORDER DOCKET THE
11 NAME AND ADDRESS OF THE RESPONSIBLE PERSON AND THE AMOUNT OF THE
12 LIEN AS SET FORTH IN THE NOTICE OF LIEN. UPON ENTRY BY THE
13 PROTHONOTARY, THE LIEN SHALL ATTACH TO THE REVENUE AND ALL REAL
14 AND PERSONAL PROPERTY OF THE RESPONSIBLE PERSON, WHETHER OR NOT
15 THE RESPONSIBLE PERSON IS INSOLVENT.
16 (B) REGISTRY.--THERE SHALL BE ESTABLISHED A CENTRAL REGISTRY
17 OF ALL LIENS FILED UNDER THIS ACT IN THE DEPARTMENT OF STATE.
18 THE COMMONWEALTH SHALL FILE A NOTICE OF LIEN WITH THE SECRETARY
19 OF THE COMMONWEALTH IN ADDITION TO FILINGS WITH A PROTHONOTARY
20 OR EQUIVALENT OFFICIAL.
21 (C) PRIORITY.--THE NOTICE OF LIEN FILED UNDER THIS SECTION
22 AFFECTING PROPERTY OF A RESPONSIBLE PERSON, INCLUDING PROPERTY
23 SUBJECT TO A RESPONSE ACTION, SHALL CREATE A LIEN WHICH SHALL
24 HAVE PRIORITY FROM THE DAY OF THE FILING OF THE NOTICE OF THE
25 LIEN OVER ALL SUBSEQUENT CLAIMS AND LIENS AGAINST THE PROPERTY,
26 BUT IT SHALL NOT AFFECT ANY VALID LIEN, RIGHT OR INTEREST IN THE
27 PROPERTY FILED IN ACCORDANCE WITH ESTABLISHED PROCEDURE PRIOR TO
28 THE FILING OF A NOTICE OF LIEN UNDER THIS SUBSECTION.
29 Section 511 510. Evaluation grant. <--
30 The department may make available a reasonable sum as a grant
19870H1852B3632 - 63 -
1 to the governing body of the host municipality of a site where
2 the department is considering a remedial response. The host
3 municipality shall use this sum solely to conduct an independent
4 technical evaluation of the proposed remedial response. The
5 grant shall not exceed $50,000 unless the department promulgates
6 regulations establishing a schedule for grants.
7 Section 512 511. Acquisition of real property. <--
8 (a) General rule.--The department may acquire, by purchase,
9 lease, condemnation, donation or otherwise, real property or an
10 interest in real property that the department, in its
11 discretion, determines is needed to conduct a response action
12 under this act. The department has no duty to acquire any
13 interest in real property under this act.
14 (b) Sovereign immunity.--The Commonwealth shall not be
15 liable under this act as a result of acquiring an interest in
16 real estate under this section, nor shall anything in this act
17 be construed as a waiver of sovereign immunity or a waiver under
18 42 Pa.C.S. § 8522 (relating to exceptions to sovereign
19 immunity).
20 Section 513 512. After closure and conveyance of property. <--
21 (a) General rule.--A site at which hazardous substances
22 remain after completion of a response action shall not be put to
23 a use which would disturb or be inconsistent with the response
24 action implemented. The department shall have the authority to
25 issue an order precluding or requiring cessation of activity at
26 a facility which the department finds would disturb or be
27 inconsistent with the response action implemented. A person
28 adversely affected by the order may file an appeal with the
29 board. The department shall require the recorder of deeds to
30 record an order under this subsection in a manner which will
19870H1852B3632 - 64 -
1 assure its disclosure in the ordinary course of a title search
2 of the subject property. An order under this subsection, when
3 recorded, shall be binding upon subsequent purchasers.
4 (b) Acknowledgment.--The grantor, in every deed for the
5 conveyance of property on which a hazardous substance is either
6 presently being disposed or has ever been disposed by the
7 grantor or to the grantor's actual knowledge, shall include in
8 the property description section of the deed an acknowledgment
9 of the hazardous substance disposal. The acknowledgment shall
10 include, but not be limited to, the extent the information is
11 available, the surface area size and exact location of the
12 disposed substances and a description of the types of hazardous
13 substances contained. This property description shall be made a
14 part of the deed for all future conveyances or transfers of the
15 subject property.
16 Section 514 513. Contracting. <--
17 (a) Authority.--The department shall have the authority to
18 enter into a contract with any person or firm to have them
19 provide assistance to the department for the implementation of
20 this act.
21 (b) Indemnification.--Any person who enters into a contract
22 with the department to assist the department in implementing
23 this chapter, shall not be required to indemnify the
24 Commonwealth or Commonwealth employees against claims arising
25 out of performance of the contract.
26 CHAPTER 7
27 LIABILITY AND COST RECOVERY
28 Section 701. Responsible person.
29 (a) General rule.--Except for releases of hazardous
30 substances expressly and specifically approved under a valid
19870H1852B3632 - 65 -
1 Federal or State permit, a person shall be responsible for a
2 release or threatened release of a hazardous substance from a
3 site when any of the following apply:
4 (1) The person owns or operates the site:
5 (i) when a hazardous substance is placed or comes to
6 be located in or on a site;
7 (ii) when a hazardous substance is located in or on
8 the site, but before it is released; or
9 (iii) during the time of the release or threatened
10 release.
11 (2) The person generates, owns or possesses a hazardous
12 substance and arranges by contract, agreement or otherwise
13 for the disposal, treatment or transport for disposal or
14 treatment of the hazardous substance. THIS PARAGRAPH DOES NOT <--
15 APPLY TO A PERSON WHO OWNS OR OPERATES EQUIPMENT FOR THE
16 RECOVERY OR PROCESSING, INCLUDING RECIRCULATION OF
17 CONDENSATE, OF METHANE UNLESS THE RELEASE OR THREATENED
18 RELEASE IS PRIMARILY CAUSED BY THE ACTIVITIES OF THE PERSON.
19 IF THE RELEASE OR THREATENED RELEASE IS PRIMARILY CAUSED BY
20 THE ACTIVITIES OF A PERSON WHO OWNS OR OPERATES EQUIPMENT FOR
21 THE RECOVERY OR PROCESSING, INCLUDING RECIRCULATION OF
22 CONDENSATE, OF METHANE, THE PERSON'S RESPONSIBILITY SHALL BE
23 LIMITED TO COSTS AND DAMAGES PRIMARILY CAUSED BY THE PERSON'S
24 ACTIVITIES.
25 (3) The person accepts hazardous substances for
26 transport to disposal or treatment facilities, incineration
27 vessels or sites selected by such person from which there is
28 a release or a threatened release of a hazardous substance
29 which causes the incurrence of response costs.
30 (4) A RELEASE OR THREATENED RELEASE IS PRIMARILY CAUSED <--
19870H1852B3632 - 66 -
1 BY A PERSON WHO OWNS OR OPERATES EQUIPMENT FOR THE RECOVERY
2 OR PROCESSING, INCLUDING RECIRCULATION OF CONDENSATE, OF
3 METHANE. RESPONSIBILITY UNDER THIS PARAGRAPH SHALL BE LIMITED
4 TO COSTS AND DAMAGES PRIMARILY CAUSED BY THE ACTIVITIES OF
5 THE PERSON.
6 (b) Exceptions.--
7 (1) An owner of real property is not responsible for the
8 release or threatened release of a hazardous substance from a
9 site in or on the property when the owner demonstrates to the
10 department that all of the following are true:
11 (i) The real property on which the site concerned is
12 located was acquired by the owner after the disposal or
13 placement of a hazardous substance on, in or at the site.
14 (ii) The owner has exercised due care with respect
15 to the hazardous substances concerned, taking into
16 consideration the characteristics of such hazardous
17 substances, in light of all relevant facts and
18 circumstances.
19 (iii) The owner took precautions against foreseeable
20 acts or omissions of any third party and the consequences
21 that could foreseeably result from such acts or
22 omissions.
23 (iv) When the owner obtained actual knowledge of the
24 release or threatened release of a hazardous substance at
25 the site when the owner owned the real property, and the
26 owner did not subsequently transfer ownership of the
27 property to another person without disclosing such
28 knowledge.
29 (v) The owner has not, by act or omission, caused or
30 contributed to the release or threatened release of a
19870H1852B3632 - 67 -
1 hazardous substance which is the subject of the action
2 relating to the site.
3 (vi) The owner meets one of these requirements:
4 (A) At the time the owner acquired the site, the
5 owner did not know, and had no reason to know, that a
6 hazardous substance which is the subject of the
7 release or threatened release was disposed of on, in
8 or at the site. For purposes of this subparagraph,
9 the owner must have undertaken, at the time of
10 acquisition, all appropriate inquiries into the
11 previous ownership and uses of the property
12 consistent with good commercial or customary practice
13 in an effort to minimize liability. The department
14 shall take into account specialized knowledge or
15 experience on the part of the owner, the relationship
16 of the purchase price to the value of the property if
17 uncontaminated, commonly known or reasonably
18 ascertainable information about the property, the
19 obviousness of the presence or likely presence of
20 contamination at the property and the ability to
21 detect the contamination by appropriate inspection.
22 (B) The owner is a government entity which
23 acquired the site by escheat, through any other
24 involuntary transfer or acquisition or through the
25 exercise of eminent domain authority by purchase or
26 condemnation.
27 (C) The owner acquired the site by inheritance
28 or bequest.
29 (D) The owner is a financial institution, an <--
30 affiliate of a financial institution or a parent
19870H1852B3632 - 68 -
1 owner of a financial institution, which acquired the
2 site, by foreclosure or by deed in lieu of
3 foreclosure before the site was included on a Federal
4 or State superfund ranking list and did not manage or
5 control activities or conditions at the site which
6 contributed to the release or threatened release of a
7 hazardous substance. For the purposes of this
8 subsection, management shall not include operations
9 by virtue of supervision of the finances or fiscal
10 operations of a responsible person in connection with
11 a loan or fiscal obligation to that responsible
12 person.
13 (D) THE OWNER IS A FINANCIAL INSTITUTION OR AN <--
14 AFFILIATE OF A FINANCIAL INSTITUTION OR A CORPORATION
15 INSTRUMENTALITY OF THE FEDERAL GOVERNMENT WHICH
16 ACQUIRED THE SITE BY FORECLOSURE OR BY ACCEPTANCE OF
17 A DEED IN LIEU OF FORECLOSURE.
18 (vii) The only basis of liability for the landowner
19 is ownership of the land.
20 (2) This subsection shall not apply to an SUBSECTION (A) <--
21 SHALL NOT APPLY TO A CURRENT OR PAST owner of real property
22 if that, AT THE TIME OF OWNERSHIP, THE real property is <--
23 primarily used or is under construction as single or multi-
24 family housing, and that owner was not responsible for
25 placing the hazardous substance on the property.
26 (c) Employees.--When a person who is responsible for a
27 release or threatened release under subsection (a) is an
28 employee who is acting in the scope of employment:
29 (1) The employee is subject to liability under this
30 section only when the employee's conduct with respect to the
19870H1852B3632 - 69 -
1 hazardous substance was negligent under circumstances in
2 which the employee knew that the substance was hazardous and
3 that the employee's conduct could result in serious harm.
4 (2) The employer shall be considered a person
5 responsible for the release or threatened release and is
6 subject to liability under this section regardless of the
7 degree of care exercised by the employee.
8 Section 702. Scope of liability.
9 (a) General rule.--A person who is responsible for a release
10 or threatened release of a hazardous substance from a site as
11 specified in section 701 is strictly liable for the following
12 response costs and damages which result from the release or
13 threatened release or to which the release or threatened release
14 significantly contributes:
15 (1) Costs of interim response which are reasonable in
16 light of the information available to the department at the
17 time the interim response action was taken.
18 (2) Reasonable and necessary or appropriate costs of
19 remedial response incurred by the United States, the
20 Commonwealth or a political subdivision.
21 (3) Other reasonable and necessary or appropriate costs
22 of response incurred by any other person.
23 (4) Damages for injury to, destruction of, or loss of
24 natural resources within this Commonwealth or belonging to,
25 managed by, controlled by or appertaining to the United
26 States, the Commonwealth or a political subdivision. This
27 paragraph includes the reasonable costs of assessing injury,
28 destruction or loss resulting from such a release.
29 (5) The cost of a health assessment or health effects
30 study.
19870H1852B3632 - 70 -
1 (b) Interest.--
2 (1) The amounts recoverable in an action under sections
3 507 and 1101 include interest on the amounts recoverable
4 under subsection (a). Interest shall accrue from the later
5 of:
6 (i) the date payment of a specified amount is
7 demanded in writing; or
8 (ii) the date of the expenditure concerned.
9 (2) The rate of interest on the outstanding unpaid
10 balance of the amounts recoverable under sections 507 and
11 1101 shall be 6% annually.
12 (c) Contractors.--A person or company who has entered into a
13 contract with the department to assist the department in
14 implementing this act OR WITH A RESPONSE ACTION CONTRACTOR UNDER <--
15 SECTION 119 OF THE FEDERAL SUPERFUND ACT (42 U.S.C. § 9619)
16 shall not be held liable under this act for a release of a
17 hazardous substance arising out of performance of the contract A <--
18 RESPONSE ACTION when the release is not caused by the
19 contractor's negligence.
20 (d) Commonwealth employees.--Persons employed by the
21 Commonwealth shall not be held liable for a release of a
22 hazardous substance or contaminant, or any other damages
23 incurred, as a result of actions or omissions occurring when
24 acting in their official capacity.
25 (E) CONSTRUCTION OF LIABILITY.--WITH THE EXCEPTION OF <--
26 SECTIONS 706 AND 708 AS APPLIED SOLELY TO RESPONSIBLE PERSONS
27 AND THE DEPARTMENT, NOTHING IN THIS ACT SHALL BE CONSTRUED TO
28 ALTER ANY RIGHTS OF ACTION OR REMEDIES NOW OR HEREAFTER EXISTING
29 UNDER THE LAWS OF THIS COMMONWEALTH.
30 Section 703. Defenses to liability.
19870H1852B3632 - 71 -
1 (a) Grounds.--There shall be no liability under section 701
2 for a person otherwise liable who can establish, that the
3 release or threat of release of a hazardous substance and the
4 damages resulting therefrom were caused solely by any of the
5 following:
6 (1) An act of God.
7 (2) An act of war.
8 (3) An act or omission of a third party other than an
9 employee, agent or contractor of the responsible person or
10 one whose act or omission occurs in connection with an
11 agreement or contractual relationship (EXCEPT WHERE THE SOLE <--
12 CONTRACTUAL ARRANGEMENTS ARISE EITHER FROM A PUBLISHED TARIFF
13 AND ACCEPTANCE FOR CARRIAGE BY A COMMON CARRIER BY RAIL, OR
14 AN EXEMPT CIRCULAR OF TRANSPORTATION CONTRACT IN LIEU OF A
15 PUBLISHED TARIFF FOR CARRIAGE BY A COMMON CARRIER BY RAIL),
16 if the responsible person:
17 (i) exercised due care with respect to the hazardous
18 substance concerned, taking into consideration the
19 characteristics of such hazardous substance, in light of
20 all relevant facts and circumstances; and
21 (ii) took precautions against foreseeable acts or
22 omissions of any such third party and the consequences
23 that could foreseeably result from those acts or
24 omissions.
25 (b) Assistance.--Except as provided in subsection (c), no
26 person shall be liable under this act for costs or damages as a
27 result of actions taken or omitted in the course of rendering
28 care, assistance or advice in accordance with this act or at the
29 direction of the department with respect to an incident creating
30 a danger to public health, safety or welfare or the environment
19870H1852B3632 - 72 -
1 as a result of a release of a hazardous substance or contaminant
2 or the threat thereof. This subsection does not preclude
3 liability for costs or damages as the result of negligence on
4 the part of the person.
5 (c) Government action.--No State agency or political
6 subdivision shall be liable under this act for costs or damages
7 as a result of actions taken by the State agency or political
8 subdivision in response to a release or threatened release of a
9 hazardous substance generated by or from a site.
10 (d) Burden of proof.--A person claiming a defense provided
11 in this section has the burden to prove all elements of the
12 defense by a preponderance of the evidence.
13 Section 704. Subrogation and insurance.
14 (a) General rule.--An owner or operator of a facility or any
15 other person who may be liable under section 701 may not avoid
16 that liability by means of a conveyance of a right, title or
17 interest in real property, or by an indemnification, a hold
18 harmless agreement, or a similar agreement.
19 (b) Construction.--Nothing in this section shall be
20 construed to do any of the following:
21 (1) Prohibit a party who may be liable under section 701
22 from entering into an agreement by which that party is
23 insured, held harmless or indemnified for part or all of that
24 liability.
25 (2) Prohibit the enforcement of an insurance, a hold
26 harmless or an indemnification agreement.
27 (3) Bar a cause of action brought by a party who may be
28 liable under section 701 or by an insurer or guarantor,
29 whether by right of subrogation or otherwise.
30 Section 705. Contribution.
19870H1852B3632 - 73 -
1 (a) General rule.--A person may seek contribution from a
2 responsible person under section 701, during or following a
3 civil action under sections 507 or 1101. Claims for contribution
4 shall be brought in accordance with this section and the
5 Pennsylvania Rules of Civil Procedure. Nothing in this section
6 shall diminish the right of a person to bring an action for
7 contribution in the absence of a civil action under sections 507
8 or 1101. A liable party's right to contribution shall be limited <--
9 to the excess of consideration paid to the department over that
10 party's allocated share of liability as determined under this
11 section.
12 (b) Allocation.--In a civil action in which a liable party
13 seeks a contribution claim, the court, or the board in an action
14 brought under section 507 or 1101, shall enter judgment
15 allocating liability among the liable parties. Allocation shall
16 not affect the parties' liability to the department. The burden
17 is on each party to show how liability should be allocated. In
18 determining allocation under this section, the court or the
19 board may use such equitable factors as it deems appropriate.
20 The trier of fact shall consider the following factors:
21 (1) The extent to which each party's contribution to the
22 release of a hazardous substance can be distinguished.
23 (2) The amount of hazardous substance involved.
24 (3) The degree of toxicity of the hazardous substance
25 involved.
26 (4) The degree of involvement of and care exercised by
27 each party in manufacturing, treating, transporting, and
28 disposing of the hazardous substance.
29 (5) The degree of cooperation by each party with
30 Federal, State, or local officials to prevent harm to the
19870H1852B3632 - 74 -
1 public health or the environment.
2 (6) Knowledge by each party of the hazardous nature of
3 the substance.
4 (c) Settlements.--
5 (1) When the department enters into an administrative or
6 judicially approved settlement of a civil action brought
7 under sections 507 or 1101, the amount of the department's
8 claim under that civil action shall be reduced by the amount
9 of the consideration paid to the department or the allocated
10 amount of the settling party's liability, whichever is less.
11 A settlement shall not otherwise affect the department's
12 claim under sections 507 or 1101.
13 (2) A person who has resolved its liability to the
14 department in an administrative or judicially approved
15 settlement shall not be liable for claims for contribution
16 regarding matters addressed in the settlement unless the
17 terms of the settlement provide otherwise. The settling party
18 may seek contribution from a nonsettling party to recover the
19 consideration paid in excess of its allocated share of
20 liability as determined by the court or the board.
21 (3) When the department has obtained less than complete
22 relief from a person who has resolved its liability to the
23 department in an administrative or judicially approved
24 settlement, the department may bring an action against a
25 person who has not so resolved its liability. A nonsettling
26 party may seek contribution from any other nonsettling party
27 or any settling party as allowed under this section.
28 (d) Federal funds; cooperative agreements.--The Commonwealth
29 shall actively seek to obtain Federal funds to which it is
30 entitled under the Federal Superfund Act and may take actions
19870H1852B3632 - 75 -
1 necessary to enter into contractual or cooperative agreements
2 under section 104(c)(3) and (d)(1) of the Federal Superfund Act
3 (42 U.S.C. § 9604(c)(3) and (d)(a)).
4 Section 706. De minimis settlements.
5 (a) Authorization.--The department may enter into a de
6 minimis settlement with any person or group of persons who have
7 demonstrated to the department's satisfaction that the following
8 conditions have been met:
9 (1) The volume of hazardous substances contributed by
10 that party to the site is minimal in comparison to the volume
11 of hazardous substances contributed at the site by all known
12 and financially viable responsible persons.
13 (2) The remaining responsible persons have sufficient
14 resources to implement the response action proposed by the
15 department either alone or in combination with funds made
16 available by the department under section 902(a)(3).
17 (3) The persons seeking the de minimis settlement <--
18 provide an amount which is significantly greater than the
19 cost of their individual contribution as a percentage of the
20 volume contributed to the site cleanup.
21 (4) The entry of a de minimis settlement will expedite
22 the implementation of the remedial response. A de minimis
23 settlement may provide that the parties to the settlement
24 will have no further responsibility for the release which is
25 addressed by the proposed remedial action.
26 (b) Discretion.--The decision to enter into a de minimis
27 settlement is within the sole discretion of the department. No
28 person has a right to participate in a de minimis settlement and
29 the department's decision whether or not to enter into a
30 settlement shall not be deemed to be a final action subject to
19870H1852B3632 - 76 -
1 review under Title 2 of the Pennsylvania Consolidated Statutes
2 (relating to administrative law and procedure) or section 1921-A
3 of the act of April 9, 1929 (P.L.177, No.175), known as The
4 Administrative Code of 1929.
5 (B) DE MINIMIS LIABILITY.--ANY PERSON WHOSE CONTRIBUTION TO <--
6 THE SITE IS MINIMAL IN BOTH AMOUNT AND TOXIC OR OTHER HAZARDOUS
7 EFFECT, IN COMPARISON TO OTHER HAZARDOUS SUBSTANCES AT THE SITE,
8 SHALL BE LIABLE ONLY FOR HIS PROPORTIONAL SHARE OF RESPONSE
9 COSTS AND DAMAGES ASSESSED UNDER SECTION 702. UPON PAYMENT OF
10 SUCH PERSON'S SHARE, SAID PERSON SHALL BE ENTITLED TO A SPECIAL
11 COVENANT NOT TO SUE.
12 Section 707. Nonbinding allocation of liability.
13 Within 120 days of the request of any responsible person, the
14 department shall make a nonbinding allocation of responsibility
15 among the known responsible persons. The request shall not
16 prohibit or delay any action authorized under this act. The
17 department's nonbinding allocation shall not be deemed to be a
18 final action subject to review under Title 2 of the Pennsylvania
19 Consolidated Statutes (relating to administrative law and
20 procedure) or section 1921-A of the act of April 9, 1929
21 (P.L.177, No.175), known as The Administrative Code of 1929, nor
22 shall it confer a right or duty upon the department or any
23 person.
24 Section 708. Voluntary acceptance of responsibility.
25 A responsible person who voluntarily undertakes a response <--
26 action approved by the department shall not be liable for any
27 further response action provided that:
28 (1) The responsible person completes the remedial
29 response approved by the department.
30 (2) The responsible person demonstrates that the
19870H1852B3632 - 77 -
1 remedial response taken is preventing any release of
2 hazardous substances from the site.
3 ANY PERSON WHO VOLUNTARILY ACCEPTS RESPONSIBILITY UNDER <--
4 SECTION 701 AND AGREES TO PAY HIS PROPORTIONATE SHARE OF THE
5 RESPONSE COSTS AND DAMAGES LISTED IN SECTION 702 SHALL NOT BE
6 LIABLE TO THE DEPARTMENT, OR TO ANY OTHER RESPONSIBLE PERSON, <--
7 FOR ANY CLAIMS IN EXCESS OF THAT PERSON'S PROPORTIONATE
8 LIABILITY SHARE OF THE RESPONSE COSTS AND DAMAGES UNDER SECTION <--
9 702, AS ULTIMATELY DETERMINED.
10 Section 709. Mediation.
11 Upon the request of any responsible person, the department
12 may appoint an independent mediator recognized by the American
13 Arbitration Association to resolve any dispute among the
14 responsible persons. The expenses of the mediator shall be paid
15 by the parties to the mediation. Any agreement reached during
16 the mediation shall be binding upon the parties to the
17 agreement, and shall create a presumption in favor of the
18 parties as to all matters addressed by the agreement. This <--
19 presumption shall operate against any responsible person who
20 fails after notice, to participate in the mediation. The
21 mediation shall not prohibit or delay any action authorized by
22 this act.
23 CHAPTER 9
24 FUND
25 Section 901. Fund.
26 (a) Establishment.--The Hazardous Sites Cleanup Fund, as
27 established in section 602.3 of the act of March 4, 1971 (P.L.6,
28 No.2), known as the Tax Reform Code of 1971, shall be a special
29 fund administered by the department and shall not be subject to
30 the act of July 13, 1987 (P.L.340, No.64), entitled "An act
19870H1852B3632 - 78 -
1 providing for the establishment, funding and operation of a
2 special restricted receipt account within the General Fund to
3 support the establishment and operation of a Statewide judicial
4 computer system; providing for annual appropriations from the
5 restricted funds; and providing for the payment of a portion of
6 all fines, fees and costs collected by the judiciary into the
7 restricted receipt account."
8 (b) Appropriation.--Money placed in the fund is appropriated
9 to the department for the purposes set forth in this section.
10 The department shall annually submit to the Governor for
11 approval estimates of amounts to be expended under this act.
12 (c) Funds.--Money from the following sources shall be
13 deposited in the fund:
14 (1) Proceeds from hazardous waste transportation and
15 management fees imposed by section 903, including interest
16 and penalties.
17 (2) Money recovered by the Commonwealth under sections
18 507 and 1101.
19 (3) Interest attributable to investment of money
20 deposited in the fund.
21 (4) Money appropriated by the General Assembly for
22 implementation of this act.
23 (5) Money recovered by the Commonwealth pursuant to a
24 cost recovery action under the Federal Superfund Act.
25 (6) Money received from the Federal Government under the
26 Federal Superfund Act.
27 (7) All revenues collected pursuant to section 602.3 of
28 the Tax Reform Code of 1971.
29 (8) All fees collected under sections 903 and 904 <--
30 SECTION 903. <--
19870H1852B3632 - 79 -
1 (9) Funds available from appropriations for the same and
2 similar purposes.
3 Section 902. Expenditures from fund.
4 (a) Purposes.--The department shall expend money in the fund
5 for purposes including, but not limited to:
6 (1) Preparation by the department or its agents for
7 taking response actions, which include emergency responses,
8 investigations, testing activities, contracting, excavation,
9 administrative costs and enforcement efforts relating to the
10 release or threatened release of hazardous substances or
11 contaminants.
12 (2) Response actions taken or authorized by the
13 department, including related enforcement and compliance
14 efforts and the payment of the State share of the cost of
15 remedial responses which may be carried out under an
16 agreement or contract with the Federal Government pursuant to
17 the Federal Superfund Act.
18 (3) Participation in response activities to the extent
19 the department, in its discretion, finds necessary or
20 appropriate, to carry out the purposes of this act. The
21 department may also use the fund to promote voluntary
22 cleanups by participating in mixed funding settlements with
23 potentially responsible persons.
24 (4) Emergency responses, including response to spills
25 and other uncontrolled releases and their cleanup.
26 (5) Reimbursement to a private party for expenditures
27 made from the effective date of this act to provide
28 alternative water supplies deemed necessary by the department
29 to protect the public health from contamination resulting
30 from the release of a hazardous substance or contaminant.
19870H1852B3632 - 80 -
1 (6) Replacement of public or private water supplies
2 deemed necessary by the department to protect the public
3 health from contamination resulting from the release of a
4 hazardous substance or contaminant.
5 (7) Rehabilitation, restoration or acquisition of
6 natural resources to remedy injuries or losses to natural
7 resources resulting from the release of a hazardous substance
8 or contaminant.
9 (8) Grants by the department to demonstrate alternatives
10 to land disposal of hazardous waste, including reduction,
11 separation, pretreatment, processing and resource recovery
12 for education of persons involved in regulating and handling
13 hazardous substances.
14 (9) Intervention and environmental mediation to
15 facilitate cleanup of hazardous sites.
16 (10) State matching funds required under the Federal
17 Superfund Act for the response of a site on the National
18 Priority List established under the Federal Superfund Act.
19 (11) Studies of potential or actual human health effects
20 from the release or potential release of hazardous substances
21 at individual sites, including, but not limited to, studies
22 of potential pathways of human exposure, the size and
23 potential susceptibility of the community within the likely
24 pathways of exposure, the comparison of expected health
25 effects associated with identified hazardous substances and
26 available recommended exposure or tolerance limits for the
27 hazardous substances, the comparison of existing morbidity
28 and mortality data on diseases that may be associated with
29 the observed levels of exposure and epidemiological and
30 clinical studies.
19870H1852B3632 - 81 -
1 (12) Grants provided to municipalities under section 511 <--
2 510.
3 (13) Reimbursement of expenses under section 505(f).
4 (b) Annual report.--Beginning October 1, 1988, and annually
5 thereafter, the secretary shall transmit to the General Assembly
6 a report concerning activities and expenditures made pursuant to
7 this chapter for the preceding State fiscal year. Included in
8 this report shall be information concerning all revenues and
9 receipts deposited into the Hazardous Site Cleanup Fund, all
10 expenditures, including, but not limited to, expenditures for
11 personnel, operating expenses, the purchase of fixed assets,
12 grants and subsidies, other major objects of expenditures where
13 appropriate, and information detailing the department's efforts
14 to obtain contributions for response actions from potentially
15 responsible parties and a listing of sites where mixed funding
16 as described in section 902(a)(3) was utilized for cleanup. The
17 secretary shall also supply information on both authorized and
18 filled complement and information concerning program activities,
19 including, but not limited to:
20 (1) The number of response actions initiated and
21 completed, and the costs incurred, in the aggregate and for
22 each action.
23 (2) The number of public or private water supply
24 replacements, and the costs incurred.
25 (3) Expenditures for the rehabilitation, restorations or
26 acquisition of natural resources.
27 (4) Expenditures for intervention and environmental
28 mediation.
29 (5) The number of Federal Superfund sites in which the
30 Commonwealth participates in response activities, and the
19870H1852B3632 - 82 -
1 State matching costs incurred.
2 (6) The number of health effect studies undertaken, and
3 the costs incurred.
4 (7) The number of grants provided to municipalities
5 under section 511 510, and the amounts granted. <--
6 (8) The number of reimbursements of expenses under
7 section 505(f), and the amounts reimbursed.
8 (c) Health study report.--Upon completion of health effect
9 studies performed pursuant to subsection (a)(11), copies of the
10 findings and any recommendations of such studies shall be
11 transmitted to the General Assembly and the governing bodies of
12 the affected communities. Except for personal health records of
13 individuals, such studies shall be public information, and the
14 department shall provide copies to any person upon request.
15 Section 903. Hazardous waste transportation and management fees.
16 (a) Assessment.--Fees shall be assessed for the
17 transportation and management of hazardous waste in accordance
18 with this section. TO CARRY OUT THE PURPOSES OF THIS ACT AND IN <--
19 ORDER TO CARRY OUT THE NATIONAL AND STATE POLICIES TO MINIMIZE
20 LAND DISPOSAL OF HAZARDOUS WASTE BY ENCOURAGING PROPERLY
21 CONDUCTED RECYCLING AND REUSE, THE TRANSPORTATION AND MANAGEMENT <--
22 FEES LEVIED UNDER THIS SECTION SHALL NOT BE IMPOSED ON:
23 (1) HAZARDOUS WASTE WHICH IS RECYCLABLE MATERIAL UNDER
24 40 CFR § 261.6 AND SUCCESSOR FEDERAL AND STATE REGULATIONS
25 AND WHICH IS SENT TO A VERIFIED RECYCLING FACILITY FOR USE,
26 REUSE OR RECLAMATION RECYCLING; AND
27 (2) HAZARDOUS WASTE GENERATED IN THE PROCESS OF
28 RECYCLING RECYCLABLE MATERIALS DESCRIBED IN 40 CFR § 261.6
29 AND ITS SUCCESSOR FEDERAL AND STATE REGULATIONS, AND SO
30 VERIFIED BY THE DEPARTMENT:
19870H1852B3632 - 83 -
1 PROVIDED, THAT ANY HAZARDOUS WASTE GENERATED IN THE RECYCLING
2 PROCESS IS DISPOSED OF AT A PERMITTED DISPOSAL FACILITY. ALL
3 VERIFICATIONS REFERRED TO IN THIS SUBSECTION SHALL BE IN WRITING
4 AND APPROVED BY THE DEPARTMENT.
5 (b) Transportation fee.--A transporter of hazardous waste
6 shall be assessed a transportation fee for hazardous waste
7 transported within this Commonwealth, whether originating in-
8 State or out-of-State. For purposes of computing the fee, each
9 shipment, requiring the use of a hazardous waste manifest, to or
10 from a PENNSYLVANIA hazardous waste facility, or between two <--
11 PENNSYLVANIA hazardous waste facilities, shall be considered a <--
12 discrete transportation activity and shall be subject to the
13 fee.
14 (c) Management fee.--
15 (1) The operator of a hazardous waste management
16 facility IN PENNSYLVANIA shall be assessed a management fee <--
17 for hazardous waste stored, treated or disposed of at a
18 facility. No management fee shall be charged for hazardous
19 wastes which are reused or recycled in accordance with
20 department regulations. For purposes of this paragraph,
21 incineration shall be considered a form of treatment rather
22 than disposal.
23 (2) A generator who disposes of hazardous waste at the
24 site at which it was generated or at a captive disposal
25 facility IN PENNSYLVANIA shall be assessed a fee for all <--
26 hazardous waste disposed.
27 (3) No management fee shall be assessed for hazardous
28 waste storage or treatment at the site at which it was
29 generated or at a captive facility IN PENNSYLVANIA. <--
30 (4) No management fee shall be charged for waste stored
19870H1852B3632 - 84 -
1 prior to recycling at a legitimate commercial recycling
2 facility.
3 (d) Rates.--The following rates shall apply unless the
4 secretary adjusts the fee schedule in accordance with subsection
5 (g):
6 (1) Transportation of hazardous waste (EXCEPT AS <--
7 PROVIDED IN PARAGRAPH (2)) - $3 per ton.
8 (2) TRANSPORTATION OF HAZARDOUS WASTE RESULTING FROM THE <--
9 RECYCLING OF LEAD ACID BATTERIES - $1.50 PER TON.
10 (2) (3) Storage of hazardous waste at a commercial <--
11 hazardous waste management facility - $2 per ton.
12 (3) (4) Treatment or incineration of hazardous waste at <--
13 a commercial hazardous waste management facility - $5 per
14 ton.
15 (4) (5) Disposal of hazardous waste at a commercial <--
16 disposal facility - $12 per ton.
17 (5) (6) Disposal of hazardous waste on the site at which <--
18 it was generated or at a captive facility - $8 per ton.
19 (e) Conversion.--In the event that any hazardous waste is
20 measured in units other than tonnage, the fee shall be levied on
21 a conversion to tonnage determined by the department.
22 (f) Cumulative nature.--
23 (1) The transportation and management fees are
24 cumulative.
25 (2) When several management activities occur at the same
26 facility, the operator shall be assessed only one management
27 fee FOR EACH QUANTITY OF WASTE, which shall be the highest <--
28 rate of the management activities involved.
29 (3) However, when treatment or incineration prior to
30 disposal results in a reduction in the tonnage of waste
19870H1852B3632 - 85 -
1 requiring disposal, the operator shall be assessed the
2 disposal management fee for the waste requiring disposal
3 after treatment or incineration and the treatment management
4 fee for the rest of the waste which underwent treatment.
5 (g) Adjustments.--The secretary may, by regulation, adjust
6 the rates as appropriate in accordance with the following
7 formula:
8 (1) The fees shall be calculated and rates adjusted to
9 collect projected annual revenues of $5,000,000 plus the
10 reasonably projected administrative cost of collecting the
11 fee.
12 (2) Management fee rates shall encourage preferred
13 hazardous waste management practices by establishing four fee
14 categories with graduated fee schedule. The fee categories
15 from lowest rate per ton to highest rate per ton shall be:
16 (i) Hazardous waste stored at a hazardous waste
17 management facility.
18 (ii) Hazardous waste treated or incinerated at a
19 hazardous waste management facility.
20 (iii) Hazardous waste disposed of at a hazardous
21 waste disposal facility at the site where the waste was
22 generated or at a captive disposal facility.
23 (iv) Hazardous waste disposed of at a commercial
24 hazardous waste disposal facility.
25 (3) No fee shall be charged for hazardous wastes which
26 are recycled or reused in accordance with the department's
27 regulations.
28 (4) The department may exclude small quantity generators
29 from the fees.
30 (h) Annual disposal report.--
19870H1852B3632 - 86 -
1 (1) By March 1, 1989, and by March 1 of each year
2 thereafter, a person who submitted for off-site disposal or
3 who disposed of on site more than 500 pounds of hazardous
4 waste in this Commonwealth during the preceding calendar year
5 shall report to the department the total amount of hazardous
6 waste which that person has submitted for disposal or
7 disposed of in this Commonwealth during the preceding
8 calendar year. This subsection does not apply to a person who
9 is already providing this information to the department.
10 (2) The total amount of hazardous waste reported under
11 this subsection shall be the total weight, measured in tons,
12 of all components of the waste in the form in which the waste
13 existed at the time of submission for disposal or at the time
14 of disposal.
15 (3) A person who fails to file the report required by
16 this subsection shall be liable for a civil penalty not to
17 exceed $500 for each day the violation continues. A person
18 who knowingly fails to file the report commits a misdemeanor
19 of the third degree and shall, upon conviction, be sentenced
20 to pay a fine of not more than $25,000 or to imprisonment for
21 not more than one year, or both.
22 (I) WASTE FROM CLEANUP.--THE FEES ASSESSED PURSUANT TO THIS <--
23 SECTION FOR THE TRANSPORTATION, MANAGEMENT OR AUTHORIZED
24 DISPOSAL OF HAZARDOUS WASTE SHALL NOT APPLY TO HAZARDOUS WASTE
25 THAT IS DERIVED FROM THE CLEANUP OF A SITE PURSUANT TO THIS ACT,
26 THE FEDERAL SUPERFUND ACT, THE SOLID WASTE DISPOSAL ACT (PUBLIC
27 LAW 89-272, 42 U.S.C. § 6901 ET SEQ.) OR THE ACT OF JULY 7, 1980
28 (P.L.380, NO.97), KNOWN AS THE SOLID WASTE MANAGEMENT ACT.
29 Section 904. Contingency surcharge. <--
30 In the event the total amount appropriated from the General
19870H1852B3632 - 87 -
1 Fund for the hazardous waste control program and Federal
2 superfund projects is less than $25,000,000, one of the
3 surcharges established in paragraphs (1) and (2), in addition to
4 other fees contained in this section, shall be levied.
5 (1) On all hazardous waste generated in this
6 Commonwealth, except hazardous waste covered by paragraph
7 (2), a surcharge fee in the amount of $7.50 per ton shall be
8 paid to the fund. In the event that any hazardous waste is
9 measured by other than tonnage, the surcharge shall be levied
10 on the equivalent thereof as shall be determined by the
11 department. Each generator of hazardous waste shall, on or
12 before the 20th day of the month following the close of each
13 tax period, render an accounting and record of the total
14 waste generated and stored or disposed of in that period on
15 such forms as the department may require and make full
16 payment of the surcharge in a manner to be prescribed by the
17 department.
18 (2) On all hazardous waste generated and treated, reused
19 or recycled in this Commonwealth, a surcharge fee in the
20 amount of $2.50 per ton of waste generated and treated,
21 reused or recycled, shall be paid to the fund. In the event
22 that any hazardous waste is measured by other than tonnage,
23 the surcharge shall be levied on the equivalent thereof as
24 shall be determined by the department. Each generator of
25 hazardous waste shall, on or before the 20th day of the month
26 following the close of each tax period, render an accounting
27 and record of the total waste generated and treated, reused
28 or recycled in that period on such forms as the department
29 may require and make full payment of the surcharge in a
30 manner to be prescribed by the department.
19870H1852B3632 - 88 -
1 (3) To carry out the purposes of this act and in order
2 to carry out the National and State policies to minimize land
3 disposal of hazardous waste by encouraging properly conducted
4 recycling and reuse, the surcharge fee levied under paragraph
5 (2) shall be levied on hazardous waste which is recyclable
6 material under 40 CFR § 261.6 and successor Federal and State
7 regulations and which is sent by the generator to a verified
8 recycling facility for recycling or reuse; and the surcharge
9 levied under paragraph (2) shall not apply to waste generated
10 in the process of recycling recyclable materials listed in 40
11 CFR § 261.6(a)(2) and (3) and its successor Federal and State
12 regulations, and so verified by the department: Provided,
13 That any hazardous waste generated in the recycling process
14 is disposed of at a permitted disposal facility. All
15 verifications referred to in this paragraph shall be in
16 writing and approved by the department.
17 (4) The surcharge fee levied under paragraphs (1) and
18 (2) shall not apply to waste specifically excluded as a
19 hazardous waste under 25 Pa. Code § 75.261(c) of the
20 department's regulations and to waste for which disposal is
21 carried on as a point source discharge pursuant to and in
22 compliance with a valid permit issued under the act of June
23 22, 1937 (P.L.1987, No.394), known as The Clean Streams Law,
24 and under section 402 of the Federal Water Pollution Control
25 Act, as amended (86 Stat. 880).
26 (5) The surcharge fees levied under paragraphs (1) and
27 (2) shall not apply to hazardous waste retrieved or created
28 and which must be disposed of due to the remediation of an
29 abandoned hazardous waste site.
30 (6) Following each quarterly reporting date, the
19870H1852B3632 - 89 -
1 secretary shall certify the amount deposited in the fund
2 during the quarter and the cumulative amount collected since
3 the start of the current calendar year. If the secretary
4 certifies that the total annual amount collected as of the
5 end of any quarter equals or exceeds $25,000,000, no
6 surcharge shall be collected for the remainder of the year.
7 Section 905 904. Loan fund. <--
8 (a) Establishment.--There is established a separate account
9 in the State Treasury to be known as the Hazardous Sites Loan
10 Fund, which shall be a special fund administered by the Economic <--
11 Development Partnership DEPARTMENT OF COMMERCE. <--
12 (b) Purpose.--In the case of a release or threatened release
13 of hazardous substances from a site for which the department has
14 identified no more than two persons as potentially liable under
15 section 702, such persons may be eligible, upon written
16 application to the Economic Development Partnership DEPARTMENT <--
17 OF COMMERCE, to receive long-term, low-interest loans in an
18 amount sufficient to fund all or a portion of the response costs
19 at the site. The Economic Development Partnership DEPARTMENT OF <--
20 COMMERCE shall promulgate regulations establishing eligibility
21 criteria for the loans. As part of this effort, the Economic <--
22 Development Partnership Board DEPARTMENT OF COMMERCE shall <--
23 include a determination of the availability of other sources of
24 funds at reasonable rates to finance all or a portion of the
25 response action and the need for board assistance to finance the
26 response action.
27 (c) Funds.--In addition to any funds as may be appropriated
28 by the General Assembly, at least 2% of the funds raised
29 annually by the assessments imposed by section 903 shall be
30 deposited into the loan fund.
19870H1852B3632 - 90 -
1 (d) Annual report.--Beginning October 1, 1988, and annually
2 thereafter, the Economic Development Partnership DEPARTMENT OF <--
3 COMMERCE shall transmit to the General Assembly a report
4 concerning activities and expenditures made pursuant to this
5 section for the preceding State fiscal year. Included in this
6 report shall be information concerning all revenues and receipts
7 deposits into the loan fund and all loans extended to eligible
8 applicants.
9 (e) Sunset.--The loan fund shall cease to exist on June 30,
10 1992, unless it is reestablished by action of the General
11 Assembly. Any funds remaining in the loan fund on June 30, 1992,
12 shall lapse to the Hazardous Sites Cleanup Fund. Money received
13 by the Economic Development Partnership DEPARTMENT OF COMMERCE <--
14 as repayment of outstanding loans after June 30, 1992, shall
15 lapse to the Hazardous Sites Cleanup Fund.
16 SECTION 905. RECYCLING EQUIPMENT TAX CREDIT. <--
17 (A) AMOUNT.--A TAXPAYER WHO PURCHASES OR LEASES RECYCLING
18 EQUIPMENT TO BE USED EXCLUSIVELY WITHIN THIS COMMONWEALTH SHALL
19 BE ENTITLED TO A CREDIT AGAINST THE TAXES IMPOSED UNDER ARTICLES
20 IV AND VI OF THE ACT OF MARCH 4, 1971 (P.L.6, NO.2), KNOWN AS
21 THE TAX REFORM CODE OF 1971, IN AN AMOUNT EQUAL TO 50% OF THE
22 INSTALLED COST OF THE RECYCLING EQUIPMENT. THE AMOUNT OF CREDIT
23 CLAIMED IN THE TAX YEAR DURING WHICH THE RECYCLING EQUIPMENT IS
24 PURCHASED OR LEASED SHALL NOT EXCEED 20% OF THE AMOUNT OF THE
25 TOTAL CREDIT ALLOWABLE AND SHALL NOT EXCEED 50% OF THE TOTAL OF
26 THE TAX LIABILITY WHICH WOULD BE OTHERWISE DUE.
27 (B) APPLICATION PROCEDURE.--APPLICATION FOR A TAX CREDIT
28 MUST BE MADE TO THE DEPARTMENT OF REVENUE BY APRIL 15 OF THE
29 YEAR FOLLOWING THE CALENDAR YEAR IN WHICH THE RECYCLING
30 EQUIPMENT IS PURCHASED OR LEASED. THE APPLICATION MUST INCLUDE A
19870H1852B3632 - 91 -
1 DESCRIPTION OF EACH ITEM OF RECYCLING EQUIPMENT PURCHASED OR
2 LEASED, THE DATE OF PURCHASE OR LEASE, THE INSTALLED COST OF THE
3 RECYCLING EQUIPMENT, A STATEMENT OF WHERE THE RECYCLING
4 EQUIPMENT IS TO BE USED AND OTHER INFORMATION AS THE DEPARTMENT
5 MAY REQUIRE. THE SECRETARY OF REVENUE SHALL REVIEW ALL
6 APPLICATIONS RECEIVED TO DETERMINE WHETHER EXPENDITURES FOR
7 WHICH CREDITS ARE REQUESTED MEET THE REQUIREMENTS OF THIS
8 SECTION AND SHALL ADVISE THE TAXPAYER OF THE AMOUNT OF CREDIT
9 FOR WHICH THE TAXPAYER IS ELIGIBLE UNDER THIS SECTION.
10 (C) CARRYOVER.--TAX CREDITS AWARDED PURSUANT TO THIS SECTION
11 MAY BE UTILIZED IN THE TAXABLE YEAR THE RECYCLING EQUIPMENT IS
12 PURCHASED OR LEASED AND, TO EXTENT NOT UTILIZED, CARRIED OVER
13 FOR UP TO FOUR ADDITIONAL TAXABLE YEARS BY THE TAXPAYER, AND
14 SHALL THEREAFTER EXPIRE.
15 (D) APPLICABILITY.--THE CREDIT ALLOWED BY THIS SECTION SHALL
16 APPLY TO MACHINERY AND EQUIPMENT WHICH IS PUT IN PLACE PRIOR TO
17 DECEMBER 31, 1993.
18 (E) EXPIRATION.--THIS SECTION SHALL EXPIRE DECEMBER 31,
19 1993.
20 CHAPTER 11
21 ENFORCEMENT AND REMEDIES
22 Section 1101. Public nuisances.
23 (A) GENERAL RULE.-- A release of a hazardous substance or a <--
24 violation of any provision of this act, a regulation of the
25 department, an order of the department or a response approved by
26 the department shall constitute a public nuisance. Any person
27 allowing such a release or committing such a violation shall be
28 liable for the response costs caused by the release or the
29 violation. The board and any court of competent jurisdiction is
30 hereby given jurisdiction over actions to recover the response
19870H1852B3632 - 92 -
1 costs.
2 (B) LIMITATION OF LIABILITY.--IF A RELEASE OR THREATENED <--
3 RELEASE IS PRIMARILY CAUSED BY A PERSON WHO OWNS OR OPERATES
4 EQUIPMENT FOR THE RECOVERY OR PROCESSING, INCLUDING
5 RECIRCULATION OF CONDENSATE, OF METHANE, THE PERSON'S LIABILITY
6 SHALL BE LIMITED TO COSTS AND DAMAGES PRIMARILY CAUSED BY THE
7 PERSON'S ACTIVITIES.
8 Section 1102. Enforcement orders.
9 (a) General rule.--The department shall issue orders to
10 persons as it deems necessary to aid in the enforcement of the
11 provisions of this act. Orders shall include but shall not be
12 limited to orders requiring response actions, studies and access
13 and orders modifying, suspending or ceasing a response action by
14 a responsible party even though the response may have been
15 initially approved by the department. An order issued under this
16 section shall take effect upon notice unless the order specifies
17 otherwise. The power of the department to issue an order under
18 this section is in addition to any other remedy which may be
19 afforded to the department under this act or any other statute.
20 (b) Types.--The department, when it deems necessary for the
21 response to a release or for the protection of public health,
22 safety or welfare or the environment, shall order, orally or in
23 writing, a person to immediately initiate, continue, suspend or
24 modify a response action; conduct investigations; or provide
25 access to property or information. The order shall be effective
26 upon issuance and may only be superseded by further department
27 action or, after an appeal has been perfected, by the board
28 after notice and hearing. The order may require whatever
29 alternative response actions are necessary for the abatement of
30 the release. Within two business days after the issuance of the
19870H1852B3632 - 93 -
1 oral order, the department shall issue a written order reciting
2 and modifying, where appropriate, the terms and conditions
3 contained in the oral order.
4 (c) Compliance.--It shall be the duty of any person to
5 proceed diligently to comply with an order issued under this
6 section. When the person fails to proceed diligently or fails to
7 comply with the order within the time specified, the person
8 shall be guilty of contempt and shall be punished by the court
9 in an appropriate manner. For this purpose, application may be
10 made by the department to the Commonwealth Court.
11 (d) Appeal.--An order issued under this section may be
12 appealed to the board under section 1921-A of the act of April
13 9, 1929 (P.L.177, No.175), known as The Administrative Code of
14 1929. An appeal to the board shall not act as a supersedeas.
15 Section 1103. Restraining violations.
16 (a) Department.--In addition to any other remedy provided in
17 this act, the department may institute a suit in equity in the
18 name of the Commonwealth, where a violation of law or nuisance
19 exists, for an injunction to restrain a violation of this act or
20 the regulations, standards or orders promulgated or issued
21 hereunder and to restrain the maintenance or threat of a public
22 nuisance. In a proceeding under this subsection, the court
23 shall, upon motion of the Commonwealth, issue a prohibitory or
24 mandatory preliminary injunction when it finds that the
25 defendant is engaging in unlawful conduct as defined by this act
26 or is engaged in conduct which is causing immediate and
27 irreparable harm to the public. The Commonwealth shall not be
28 required to furnish bond or other security in connection with
29 the proceedings. In addition to an injunction, the court may
30 levy civil penalties under section 1104.
19870H1852B3632 - 94 -
1 (b) Local government.--In addition to any other remedies
2 provided for in this act, upon relation of a district attorney
3 of an affected county or upon relation of the solicitor of an
4 affected municipality, an action in equity may be brought in a
5 court of competent jurisdiction for an injunction to restrain
6 any and all violations of this act or regulations promulgated
7 under it or to restrain a public nuisance or detriment to public
8 health, safety or welfare or the environment.
9 (c) Concurrent remedies.--The penalties and remedies
10 prescribed by this act shall be deemed concurrent. The existence
11 of or exercise of one remedy shall not prevent the department
12 from exercising any other remedy under this act, at law or in
13 equity.
14 (d) Jurisdiction.--Actions instituted under this section may
15 be filed in the appropriate court of common pleas or in the
16 Commonwealth Court. Actions may also be filed in a Federal Court
17 or administrative tribunal having jurisdiction over the matter.
18 Section 1104. Civil penalties.
19 (a) General rule.--In addition to proceeding with any other
20 remedy available at law or in equity for a violation of a
21 provision of this act, a regulation or order of the department
22 or a term or condition of a response approved by the department,
23 the department may assess a civil penalty upon a person for the
24 violation. A penalty may be assessed whether or not the
25 violation was willful or negligent. In determining the amount of
26 the penalty, the department shall consider the willfulness of
27 the violation; damage to air, water, land or other natural
28 resources of this Commonwealth or their uses; cost of
29 restoration and abatement; savings resulting to the person in
30 consequence of such violation; and other relevant factors.
19870H1852B3632 - 95 -
1 (b) Procedure.--When the department proposes to assess a
2 civil penalty, it shall inform the person of the proposed amount
3 of the penalty. The person charged with the penalty shall then
4 have 30 days to pay the proposed penalty in full. When the
5 person wishes to contest either the amount of the penalty or the
6 fact of the violation, the person must, within the 30-day
7 period, file an appeal of the action with the board. Failure to
8 appeal within 30 days shall result in a waiver of all legal
9 rights to contest the violation or the amount of the penalty.
10 (c) Amount.--The maximum civil penalty which may be assessed
11 under this section is $25,000 per offense. Each violation for
12 each separate day and each violation of a provision of this act,
13 a regulation under this act, an order of the department or any
14 term or condition of an approved response shall constitute a
15 separate and distinct offense under this section.
16 (d) Minimum.--A person who fails to comply with an order
17 issued under section 503 shall be subject to a minimum penalty
18 of $5,000 for each day the order is violated.
19 (e) Additional penalties.--The Environmental Quality Board
20 shall have the authority to establish, by regulation, specific
21 major violations and additional mandatory minimum civil
22 penalties.
23 Section 1105. Criminal penalties.
24 (a) Falsity.--
25 (1) A person may not knowingly make a false statement or
26 representation in an application, record, report, plan,
27 proposal or other document which:
28 (i) relates to the actual or threatened release of a
29 hazardous substance or to a response to the actual or
30 threatened release of a hazardous substance; or
19870H1852B3632 - 96 -
1 (ii) is filed, submitted, maintained or used for
2 purposes of compliance with this act.
3 (2) A person who violates paragraph (1) commits a
4 misdemeanor of the third degree and shall, upon conviction,
5 be sentenced to pay a fine of not less that $1,000 and not
6 more than $25,000 per day for each violation or to
7 imprisonment for a period of not more than one year, or both.
8 (b) Altering response action.--A person who, without written
9 authorization from the department, alters or modifies a response
10 action approved or undertaken by the department commits a
11 summary offense and shall, upon conviction, be sentenced to pay
12 a fine of not less than $100 and not more than $1,000 for each
13 day on which the offense occurs or, in default of payment of the
14 fine, to imprisonment for not more than 90 days.
15 (c) Obstruction.--A person who refuses, hinders, obstructs,
16 delays or threatens any agent or employee of the department in
17 the course of performance of a duty under this act, including
18 but not limited to entry and inspection under any circumstances,
19 commits a summary offense and shall, upon conviction, be
20 sentenced to pay a fine of not less than $100 and not more than
21 $1,000 for each day on which the offense occurs or, in default
22 of payment of the fine, to undergo imprisonment for not more
23 than 90 days.
24 (d) Intentional or negligent.--A person who intentionally or
25 negligently commits an offense under subsection (b) or (c)
26 commits a misdemeanor of the third degree and shall, upon
27 conviction, be sentenced to pay a fine of not less than $1,000
28 and not more than $25,000 for each day on which the offense
29 occurred or to undergo imprisonment for not more than one year,
30 or both.
19870H1852B3632 - 97 -
1 Section 1106. Search warrants.
2 An agent or employee of the department may apply to any
3 Commonwealth official authorized to issue a search warrant for
4 the purposes of searching any property, building, premise, or
5 place, of seizing any book, record or other physical evidence,
6 of conducting tests, or of taking samples of any solid waste.
7 Such warrant shall be issued upon probable cause. It shall be
8 sufficient probable cause to show any of the following:
9 (1) The search, seizure, test or sampling is pursuant to
10 a general administrative plan to determine compliance with
11 this act.
12 (2) The agent or employee has reason to believe that a
13 violation of this act has occurred or may occur.
14 (3) The agent or employee has been refused access to the
15 property, building, premises or place, has been refused
16 possession of any book, record or physical evidence, or has
17 been prevented from conducting tests or taking samples.
18 (4) The employee has reason to believe that a release or
19 a threat of a release of a hazardous substance or contaminant
20 exists on the property or on a nearby property and that
21 testing and sampling are needed for determining the nature or
22 extent of the release.
23 (5) The employee has reason to believe that there are
24 containers or impoundments on the property which are typical
25 of those used for containing or impounding hazardous
26 substances and that testing, sampling or the review of
27 records is necessary to determine whether hazardous
28 substances are present.
29 Section 1107. Existing and cumulative rights and remedies.
30 Nothing in this act shall be construed as estopping the
19870H1852B3632 - 98 -
1 Commonwealth, a district attorney or solicitor or a municipality
2 from proceeding in courts of law or equity to abate releases
3 forbidden under this act, or to abate nuisances under existing
4 law. It is declared to be the purpose of this act to provide
5 additional and cumulative remedies to control the release of
6 hazardous substances within this Commonwealth. Nothing contained
7 in this act shall abridge or alter rights of action or remedies
8 in law or equity. No provision of this act, the granting of
9 approval under this act, nor an act done by virtue of this act
10 shall be construed as estopping the Commonwealth, persons or
11 municipalities in the exercise of their rights in law or in
12 equity; from proceeding in courts of law or equity to suppress
13 nuisances or to abate a pollution; or from enforcing common law
14 or statutory rights. No courts of this Commonwealth having
15 jurisdiction to abate public or private nuisances shall be
16 deprived of jurisdiction in an action to abate any private or
17 public nuisance because the nuisance constitutes pollution of
18 air or water or soil.
19 Section 1108. Unlawful conduct.
20 It shall be unlawful for a person to do any of the following:
21 (1) Cause or allow a release of a hazardous substance.
22 (2) Alter or modify any response action which has been
23 approved by the department unless authorized in writing by
24 the department.
25 (3) Refuse, hinder, obstruct, delay or threaten an agent
26 or employee of the department in the course of performance of
27 a duty under this act, including, but not limited to, entry
28 and inspection under any circumstances.
29 (4) Cause or assist in the violation of any provision of
30 this act, a regulation of the department or an order of the
19870H1852B3632 - 99 -
1 department.
2 (5) Fail to make a timely payment of the hazardous waste
3 transportation and management fee.
4 (6) Hinder, obstruct, prevent or interfere with host
5 municipalities or their personnel in the performance of any
6 duty related to the collection of the hazardous waste
7 transportation and management fees.
8 (7) Cause or allow release of a contaminant in a manner
9 that creates a public nuisance.
10 Section 1109. Presumption of law for civil and administrative
11 proceedings.
12 It shall be presumed as a rebuttable presumption of law that
13 a person who causes or allows the release of a hazardous
14 substance shall be liable, without proof of fault, negligence,
15 or causation, for all damages, contamination or pollution within
16 2,500 feet of the perimeter of the area where the release has
17 occurred. This presumption may be overcome by clear and
18 convincing evidence that the person so charged did not
19 contribute to the damage, contamination or pollution.
20 Section 1110. Collection of fines and penalties.
21 Fines and penalties under this act shall be collectible in
22 the manner provided by section 510 509. Upon collection they <--
23 shall be paid into the fund.
24 Section 1111. Right of citizen to intervene in proceedings.
25 A citizen of this Commonwealth having an interest which is or
26 may be adversely affected shall have the right, on his own
27 behalf, without posting bond, to intervene in any proceeding
28 brought under this act.
29 Section 1112. Whistleblower provisions.
30 (a) Adverse action prohibited.--No employer may discharge,
19870H1852B3632 - 100 -
1 threaten or otherwise discriminate or retaliate against an
2 employee regarding the employee's compensation or terms,
3 conditions, location or privileges of employment because the
4 employee makes or is about to make a good faith report, verbally
5 or in writing, to the employer or appropriate authority an
6 instance of wrong doing under this act.
7 (b) Remedies.--The remedies, penalties and enforcement
8 procedures for violations of this section shall be as provided
9 in the act of December 12, 1986 (P.L.1559, No.169), known as the
10 Whistleblower Law.
11 (c) Definitions.--As used in this section, the following
12 words and phrases shall have the meanings given to them in this
13 subsection:
14 "Appropriate authority." A Federal, State or local
15 government body, agency or organization having jurisdiction over
16 criminal law enforcement, regulatory violations, professional
17 conduct or ethics, or waste; or a member, officer, agent,
18 representative or supervisory employee of the body, agency or
19 organization. The term includes, but is not limited to, the
20 office of Attorney General, the Department of the Auditor
21 General, the Treasury Department, the General Assembly and
22 committees of the General Assembly having the power and duty to
23 investigate criminal law enforcement, regulatory violations,
24 professional conduct or ethics or waste.
25 "Employee." A person who performs a service for wages or
26 other renumeration under a contract of hire, written or oral,
27 express or implied, for an employer, whether or not the employer
28 is a public body.
29 "Employer." A person supervising one or more employees,
30 including the employee in question; a superior of that
19870H1852B3632 - 101 -
1 supervisor; or an agent of a public body.
2 "Good faith report." A report of conduct defined in this act
3 as wrongdoing or waste which is made without malice or
4 consideration of personal benefit and which the person making
5 the report has reasonable cause to believe is true.
6 "Public body." All of the following:
7 (1) A State officer, agency, department, division,
8 bureau, board, commission, council, authority or other body
9 in the executive branch of State government.
10 (2) A county, city, township, regional governing body,
11 council, school district, special district or municipal
12 corporation, or a board, department, commission, council or
13 agency.
14 (3) Any other body which is created by Commonwealth or
15 political subdivision authority or which is funded in any
16 amount by or through Commonwealth or political subdivision
17 authority or a member or employee of that body.
18 "Waste." An employer's conduct or omissions which result in
19 substantial abuse, misuse, destruction or loss of funds or
20 resources belonging to or derived from Commonwealth or political
21 subdivision sources.
22 "Whistleblower." A person who witnesses or has evidence of
23 wrongdoing or waste while employed and who makes a good faith
24 report of the wrongdoing or waste, verbally or in writing, to
25 one of the person's superiors, to an agent of the employer or to
26 an appropriate authority.
27 "Wrongdoing." A violation which is not of a merely technical
28 or minimal nature of a Federal or State statute or regulation,
29 of a political subdivision, ordinance or regulation or of a code
30 of conduct or ethics designed to protect the interest of the
19870H1852B3632 - 102 -
1 public or the employer.
2 Section 1113. Notice of proposed settlement.
3 When a settlement is proposed in any proceeding brought under
4 this act, notice of the proposed settlement shall be sent to all
5 known responsible persons and published in the Pennsylvania
6 Bulletin and in a newspaper of general circulation in the area
7 of the release. The notice shall include the terms of the
8 settlement and the manner of submitting written comments during
9 a 60-day public comment period. The settlement shall become
10 final upon the filing of the department's response to the
11 significant written comments. The notice, the written comments
12 and the department's response shall constitute the written
13 record upon which the settlement will be reviewed. A person
14 adversely affected by the settlement may file an appeal to the
15 board. The settlement shall be upheld unless it is found to be
16 arbitrary and capricious on the basis of the administrative
17 record.
18 Section 1114. Limitation on action.
19 Notwithstanding the provisions of any other statute to the
20 contrary, actions for civil or criminal penalties under this act
21 or civil actions for releases of hazardous substances may be
22 commenced at any time within a period of 20 years from the date
23 the unlawful conduct or release is discovered. Actions to
24 recover response costs may be commenced within six years of the
25 date those costs are incurred. The initial action to recover
26 response costs shall be controlling as to liability in all
27 subsequent actions.
28 Section 1115. Citizen suits.
29 (a) General rule.--A person who has experienced or is
30 threatened with personal injury or property damage as a result
19870H1852B3632 - 103 -
1 of a release of a hazardous substance may file a civil action
2 against any person to prevent or abate a violation of this act
3 or of any order, regulation, standard or approval issued under
4 this act.
5 (b) Jurisdiction.--The courts of common pleas shall have
6 jurisdiction over any actions authorized under this section. No
7 action may be commenced under this section prior to 60 days
8 after the plaintiff has given notice to the department, to the
9 host municipality and to the alleged violator of this act, or of
10 any regulations or orders of the department under this act; nor
11 may such action be commenced when the department has commenced
12 and is diligently prosecuting a civil or criminal action in a
13 court of the United States or a state to require compliance with
14 the statute, permit, standard, regulation, condition,
15 requirement, prohibition or order. In any such civil action
16 commenced by the department, any person may intervene as a
17 plaintiff as a matter of right. The court may grant any
18 equitable relief; may impose a civil penalty under section 1104;
19 and may award litigation costs, including reasonable attorney
20 and witness fees, to the prevailing or substantially prevailing
21 party whenever the court determines such an award is
22 appropriate.
23 (c) Departmental intervention.--The department may intervene
24 as a matter of right in any action authorized under this
25 section.
26 CHAPTER 13
27 MISCELLANEOUS
28 Section 1301. Studies.
29 The Department of Commerce shall within one year of the
30 effective date of the act complete a study to investigate the
19870H1852B3632 - 104 -
1 use of the Pennsylvania Industrial Development Authority, the
2 Pennsylvania Economic Revitalization Fund and other economic
3 development grants and loans to encourage the reuse, recycling,
4 recovery, minimization and treatment which results in
5 detoxification of hazardous waste.
6 Section 1302. Repeals. <--
7 As much of subsection (a) as reads: "....through calendar
8 year 1991 and fiscal years beginning in 1991, and at the rate of
9 nine mills upon each dollar of the capital stock value as
10 defined in section 601(a) for the calendar year 1992 and fiscal
11 years beginning in 1992...." (2 occasions) and as much of
12 subsections (b)(1) and (e) as reads: "....through calendar year
13 1991 and fiscal years beginning in 1991, and at the rate of nine
14 mills for calendar year 1992 and fiscal years beginning in
15 1992...." of section 602 of the act of March 4, 1971 (P.L.6,
16 No.2), known as the Tax Reform Code of 1971, are repealed.
17 Section 1303 1302. Effective date. <--
18 This act shall take effect in 60 days.
J9L35VDL/19870H1852B3632 - 105 -