PUBLIC LAW 109–58—AUG. 8, 2005
119 STAT. 1093
a State fund or State assurance program for purposes other than those related to the regulation of underground storage tanks covered by this subtitle, with the exception of those transfers that had been completed earlier than the date of enactment of this subsection. ‘‘(C) REVISIONS TO PROCESS.—The Administrator may revise the allocation process referred to in subparagraph (A) after— ‘‘(i) consulting with State agencies responsible for overseeing corrective action for releases from underground storage tanks; and ‘‘(ii) taking into consideration, at a minimum, each of the following: ‘‘(I) The number of confirmed releases from federally regulated leaking underground storage tanks in the States. ‘‘(II) The number of federally regulated underground storage tanks in the States. ‘‘(III) The performance of the States in implementing and enforcing the program. ‘‘(IV) The financial needs of the States. ‘‘(V) The ability of the States to use the funds referred to in subparagraph (A) in any year. ‘‘(3) DISTRIBUTIONS TO STATE AGENCIES.—Distributions from the Trust Fund under this subsection shall be made directly to a State agency that— ‘‘(A) enters into a cooperative agreement referred to in paragraph (2)(A); or ‘‘(B) is enforcing a State program approved under this section.’’. (b) WITHDRAWAL OF APPROVAL OF STATE FUNDS.—Section 9004(c) of the Solid Waste Disposal Act (42 U.S.C. 6991c(c)) is amended by inserting the following new paragraph at the end thereof: ‘‘(6) WITHDRAWAL OF APPROVAL.—After an opportunity for good faith, collaborative efforts to correct financial deficiencies with a State fund, the Administrator may withdraw approval of any State fund or State assurance program to be used as a financial responsibility mechanism without withdrawing approval of a State underground storage tank program under section 9004(a).’’. (c) ABILITY TO PAY.—Section 9003(h)(6) of the Solid Waste Disposal Act (42 U.S.C. 6591a(h)(6)) is amended by adding the following new subparagraph at the end thereof: ‘‘(E) INABILITY OR LIMITED ABILITY TO PAY.— ‘‘(i) IN GENERAL.—In determining the level of recovery effort, or amount that should be recovered, the Administrator (or the State pursuant to paragraph (7)) shall consider the owner or operator’s ability to pay. An inability or limited ability to pay corrective action costs must be demonstrated to the Administrator (or the State pursuant to paragraph (7)) by the owner or operator. ‘‘(ii) CONSIDERATIONS.—In determining whether or not a demonstration is made under clause (i), the Administrator (or the State pursuant to paragraph (7)) shall take into consideration the ability of the
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