• TITLE 42 - THE PUBLIC HEALTH AND WELFARE
  • CHAPTER 103 - COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY
    • SUBCHAPTER I - HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION

• (a) Liability of response action contractors
  • (1) Response action contractors
    A person who is a response action contractor with respect to
    any release or threatened release of a hazardous substance or
    pollutant or contaminant from a vessel or facility shall not be
    liable under this subchapter or under any other Federal law to
    any person for injuries, costs, damages, expenses, or other
    liability (including but not limited to claims for
    indemnification or contribution and claims by third parties for
    death, personal injury, illness or loss of or damage to property
    or economic loss) which results from such release or threatened
    release.
  • (2) Negligence, etc.
    Paragraph (1) shall not apply in the case of a release that is
    caused by conduct of the response action contractor which is
    negligent, grossly negligent, or which constitutes intentional
    misconduct.
  • (3) Effect on warranties; employer liability
    Nothing in this subsection shall affect the liability of any
    person under any warranty under Federal, State, or common law.
    Nothing in this subsection shall affect the liability of an
    employer who is a response action contractor to any employee of
    such employer under any provision of law, including any provision
    of any law relating to worker's compensation.
  • (4) Governmental employees
    A state employee or an employee of a political subdivision who
    provides services relating to response action while acting within
    the scope of his authority as a governmental employee shall have
    the same exemption from liability (subject to the other
    provisions of this section) as is provided to the response action
    contractor under this section.

• (b) Savings provisions
  • (1) Liability of other persons
    The defense provided by section 9607(b)(3) of this title shall
    not be available to any potentially responsible party with
    respect to any costs or damages caused by any act or omission of
    a response action contractor. Except as provided in subsection
    (a)(4) of this section and the preceding sentence, nothing in
    this section shall affect the liability under this chapter or
    under any other Federal or State law of any person, other than a
    response action contractor.
  • (2) Burden of plaintiff
    Nothing in this section shall affect the plaintiff's burden of
    establishing liability under this subchapter.

• (c) Indemnification
  • (1) In general
    The President may agree to hold harmless and indemnify any
    response action contractor meeting the requirements of this
    subsection against any liability (including the expenses of
    litigation or settlement) for negligence arising out of the
    contractor's performance in carrying out response action
    activities under this subchapter, unless such liability was
    caused by conduct of the contractor which was grossly negligent
    or which constituted intentional misconduct.
  • (2) Applicability
    This subsection shall apply only with respect to a response
    action carried out under written agreement with -
    • (A) the President;
    • (B) any Federal agency;
    • (C) a State or political subdivision which has entered into a
      contract or cooperative agreement in accordance with section
      9604(d)(1) of this title; or
    • (D) any potentially responsible party carrying out any
      agreement under section 9622 of this title (relating to
      settlements) or section 9606 of this title (relating to
      abatement).
  • (3) Source of funding
    This subsection shall not be subject to section 1301 or 1341 of
    title 31 or section 11 of title 41 or to section 9662 of this
    title. For purposes of section 9611 of this title, amounts
    expended pursuant to this subsection for indemnification of any
    response action contractor (except with respect to federally
    owned or operated facilities) shall be considered governmental
    response costs incurred pursuant to section 9604 of this title.
    If sufficient funds are unavailable in the Hazardous Substance
    Superfund established under subchapter A of chapter 98 of title
    26 to make payments pursuant to such indemnification or if the
    Fund is repealed, there are authorized to be appropriated such
    amounts as may be necessary to make such payments.
  • (4) Requirements
    An indemnification agreement may be provided under this
    subsection only if the President determines that each of the
    following requirements are met:
    • (A) The liability covered by the indemnification agreement
      exceeds or is not covered by insurance available, at a fair and
      reasonable price, to the contractor at the time the contractor
      enters into the contract to provide response action, and
      adequate insurance to cover such liability is not generally
      available at the time the response action contract is entered
      into.
    • (B) The response action contractor has made diligent efforts
      to obtain insurance coverage from non-Federal sources to cover
      such liability.
    • (C) In the case of a response action contract covering more
      than one facility, the response action contractor agrees to
      continue to make such diligent efforts each time the contractor
      begins work under the contract at a new facility.
  • (5) Limitations
    • (A) Liability covered
      Indemnification under this subsection shall apply only to
      response action contractor liability which results from a
      release of any hazardous substance or pollutant or contaminant
      if such release arises out of response action activities.
    • (B) Deductibles and limits
      An indemnification agreement under this subsection shall
      include deductibles and shall place limits on the amount of
      indemnification to be made available.
    • (C) Contracts with potentially responsible parties
      • (i) Decision to indemnify
        In deciding whether to enter into an indemnification
        agreement with a response action contractor carrying out a
        written contract or agreement with any potentially
        responsible party, the President shall determine an amount
        which the potentially responsible party is able to indemnify
        the contractor. The President may enter into such an
        indemnification agreement only if the President determines
        that such amount of indemnification is inadequate to cover
        any reasonable potential liability of the contractor arising
        out of the contractor's negligence in performing the contract
        or agreement with such party. The President shall make the
        determinations in the preceding sentences (with respect to
        the amount and the adequacy of the amount) taking into
        account the total net assets and resources of potentially
        responsible parties with respect to the facility at the time
        of such determinations.
      • (ii) Conditions
        The President may pay a claim under an indemnification
        agreement referred to in clause (i) for the amount determined
        under clause (i) only if the contractor has exhausted all
        administrative, judicial, and common law claims for
        indemnification against all potentially responsible parties
        participating in the clean-up of the facility with respect to
        the liability of the contractor arising out of the
        contractor's negligence in performing the contract or
        agreement with such party. Such indemnification agreement
        shall require such contractor to pay any deductible
        established under subparagraph (B) before the contractor may
        recover any amount from the potentially responsible party or
        under the indemnification agreement.
    • (D) RCRA facilities
      No owner or operator of a facility regulated under the Solid
      Waste Disposal Act (42 U.S.C. 6901 et seq.) may be indemnified
      under this subsection with respect to such facility.
    • (E) Persons retained or hired
      A person retained or hired by a person described in
      subsection (e)(2)(B) of this section shall be eligible for
      indemnification under this subsection only if the President
      specifically approves of the retaining or hiring of such
      person.
  • (6) Cost recovery
    For purposes of section 9607 of this title, amounts expended
    pursuant to this subsection for indemnification of any person who
    is a response action contractor with respect to any release or
    threatened release shall be considered a cost of response
    incurred by the United States Government with respect to such
    release.
  • (7) Regulations
    The President shall promulgate regulations for carrying out the
    provisions of this subsection. Before promulgation of the
    regulations, the President shall develop guidelines to carry out
    this section. Development of such guidelines shall include
    reasonable opportunity for public comment.
  • (8) Study
    The Comptroller General shall conduct a study in the fiscal
    year ending September 30, 1989, on the application of this
    subsection, including whether indemnification agreements under
    this subsection are being used, the number of claims that have
    been filed under such agreements, and the need for this
    subsection. The Comptroller General shall report the findings of
    the study to Congress no later than September 30, 1989.

• (d) Exception
  The exemption provided under subsection (a) of this section and the authority of the President to offer indemnification under subsection (c) of this section shall not apply to any person covered by the provisions of paragraph (1), (2), (3), or (4) of section 9607(a) of this title with respect to the release or threatened release concerned if such person would be covered by such provisions even if such person had not carried out any actions referred to in subsection (e) of this section.

• (e) Definitions
  For purposes of this section -
  • (1) Response action contract
    The term ''response action contract'' means any written
    contract or agreement entered into by a response action
    contractor (as defined in paragraph (2)(A) of this subsection)
    with -
    • (A) the President;
    • (B) any Federal agency;
    • (C) a State or political subdivision which has entered into a
      contract or cooperative agreement in accordance with section
      9604(d)(1) of this title; or
    • (D) any potentially responsible party carrying out an
      agreement under section 9606 or 9622 of this title;
      to provide any remedial action under this chapter at a facility
      listed on the National Priorities List, or any removal under this
      chapter, with respect to any release or threatened release of a
      hazardous substance or pollutant or contaminant from the facility
      or to provide any evaluation, planning, engineering, surveying
      and mapping, design, construction, equipment, or any ancillary
      services thereto for such facility.
  • (2) Response action contractor
    The term ''response action contractor'' means -
    • (A) any -
      • (i) person who enters into a response action contract with
        respect to any release or threatened release of a hazardous
        substance or pollutant or contaminant from a facility and is
        carrying out such contract; and ^[1]
      • (ii) person, public or nonprofit private entity, conducting
        a field demonstration pursuant to section 9660(b) of this
        title; and
        (iii) Recipients ^[2] of grants (including
        sub-grantees) under section 9660a ^[3] of this title
        for the training and education of workers who are or may be
        engaged in activities related to hazardous waste removal,
        containment, or emergency response under this chapter; and

        (3) Insurance
        The term ''insurance'' means liability insurance which is fair
        and reasonably priced, as determined by the President, and which
        is made available at the time the contractor enters into the
        response action contract to provide response action.

• (f) Competition
  Response action contractors and subcontractors for program management, construction management, architectural and engineering, surveying and mapping, and related services shall be selected in accordance with title IX of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 541 et seq.). The Federal selection procedures shall apply to appropriate contracts negotiated by all Federal governmental agencies involved in carrying out this chapter. Such procedures shall be followed by response action contractors and subcontractors.

• (g) Surety bonds
  • (1) If under the Act of August 24, 1935 (40 U.S.C. 270a-270d), commonly referred to as the ''Miller Act'', surety bonds are required for any direct Federal procurement of any response action contract and are not waived pursuant to the Act of April 29, 1941 (40 U.S.C. 270e-270f), they shall be issued in accordance with such Act of August 24, 1935.
  • (2) If under applicable Federal law surety bonds are required for any direct Federal procurement of any response action contract, no right of action shall accrue on the performance bond issued on such response action contract to or for the use of any person other than the obligee named in the bond.
  • (3) If under applicable Federal law surety bonds are required for any direct Federal procurement of any response action contract, unless otherwise provided for by the procuring agency in the bond, in the event of a default, the surety's liability on a performance bond shall be only for the cost of completion of the contract work in accordance with the plans and specifications less the balance of funds remaining to be paid under the contract, up to the penal sum of the bond. The surety shall in no event be liable on bonds to indemnify or compensate the obligee for loss or liability arising from personal injury or property damage whether or not caused by a breach of the bonded contract.
  • (4) Nothing in this subsection shall be construed as preempting, limiting, superseding, affecting, applying to, or modifying any State laws, regulations, requirements, rules, practices or procedures. Nothing in this subsection shall be construed as affecting, applying to, modifying, limiting, superseding, or preempting any rights, authorities, liabilities, demands, actions, causes of action, losses, judgments, claims, statutes of limitation, or obligations under Federal or State law, which do not arise on or under the bond.
  • (5) This subsection shall not apply to bonds executed before October 17, 1990, or after December 31, 1995.

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