Title 33 USC

TITLE 33--NAVIGATION AND NAVIGABLE WATERS

CHAPTER 40--OIL POLLUTION

SUBCHAPTER I--OIL POLLUTION LIABILITY AND COMPENSATION

Sec. 2703. Defenses to liability

(a) Complete defenses

A responsible party is not liable for removal costs or damages under

section 2702 of this title if the responsible party establishes, by a

preponderance of the evidence, that the discharge or substantial threat

of a discharge of oil and the resulting damages or removal costs were

caused solely by--

(1) an act of God;

(2) an act of war;

(3) an act or omission of a third party, other than an employee

or agent of the responsible party or a third party whose act or

omission occurs in connection with any contractual relationship with

the responsible party (except where the sole contractual arrangement

arises in connection with carriage by a common carrier by rail), if

the responsible party establishes, by a preponderance of the

evidence, that the responsible party--

(A) exercised due care with respect to the oil concerned,

taking into consideration the characteristics of the oil and in

light of all relevant facts and circumstances; and

(B) took precautions against foreseeable acts or omissions

of any such third party and the foreseeable consequences of

those acts or omissions; or

(4) any combination of paragraphs (1), (2), and (3).

(b) Defenses as to particular claimants

A responsible party is not liable under section 2702 of this title

to a claimant, to the extent that the incident is caused by the gross

negligence or willful misconduct of the claimant.

(c) Limitation on complete defense

Subsection (a) of this section does not apply with respect to a

responsible party who fails or refuses--

(1) to report the incident as required by law if the responsible

party knows or has reason to know of the incident;

(2) to provide all reasonable cooperation and assistance

requested by a responsible official in connection with removal

activities; or

(3) without sufficient cause, to comply with an order issued

under subsection (c) or (e) of section 1321 of this title or the

Intervention on the High Seas Act (33 U.S.C. 1471 et seq.).

(d) Definition of contractual relationship

(1) In general

For purposes of subsection (a)(3) of this section the term

``contractual relationship'' includes, but is not limited to, land

contracts, deeds, easements, leases, or other instruments

transferring title or possession, unless--

(A) the real property on which the facility concerned is

located was acquired by the responsible party after the

placement of the oil on, in, or at the real property on which

the facility concerned is located;

(B) one or more of the circumstances described in

subparagraph (A), (B), or (C) of paragraph (2) is established by

the responsible party by a preponderance of the evidence; and

(C) the responsible party complies with paragraph (3).

(2) Required circumstance

The circumstances referred to in paragraph (1)(B) are the

following:

(A) At the time the responsible party acquired the real

property on which the facility is located the responsible party

did not know and had no reason to know that oil that is the

subject of the discharge or substantial threat of discharge was

located on, in, or at the facility.

(B) The responsible party is a government entity that

acquired the facility--

(i) by escheat;

(ii) through any other involuntary transfer or

acquisition; or

(iii) through the exercise of eminent domain authority

by purchase or condemnation.

(C) The responsible party acquired the facility by

inheritance or bequest.

(3) Additional requirements

For purposes of paragraph (1)(C), the responsible party must

establish by a preponderance of the evidence that the responsible

party--

(A) has satisfied the requirements of subsection (a)(3)(A)

and (B) of this section;

(B) has provided full cooperation, assistance, and facility

access to the persons that are authorized to conduct removal

actions, including the cooperation and access necessary for the

installation, integrity, operation, and maintenance of any

complete or partial removal action;

(C) is in compliance with any land use restrictions

established or relied on in connection with the removal action;

and

(D) has not impeded the effectiveness or integrity of any

institutional control employed in connection with the removal

action.

(4) Reason to know

(A) Appropriate inquiries

To establish that the responsible party had no reason to

know of the matter described in paragraph (2)(A), the

responsible party must demonstrate to a court that--

(i) on or before the date on which the responsible party

acquired the real property on which the facility is located,

the responsible party carried out all appropriate inquiries,

as provided in subparagraphs (B) and (D), into the previous

ownership and uses of the real property on which the

facility is located in accordance with generally accepted

good commercial and customary standards and practices; and

(ii) the responsible party took reasonable steps to--

(I) stop any continuing discharge;

(II) prevent any substantial threat of discharge;

and

(III) prevent or limit any human, environmental, or

natural resource exposure to any previously discharged

oil.

(B) Regulations establishing standards and practices

Not later than 2 years after August 9, 2004, the Secretary,

in consultation with the Administrator of the Environmental

Protection Agency, shall by regulation establish standards and

practices for the purpose of satisfying the requirement to carry

out all appropriate inquiries under subparagraph (A).

(C) Criteria

In promulgating regulations that establish the standards and

practices referred to in subparagraph (B), the Secretary shall

include in such standards and practices provisions regarding

each of the following:

(i) The results of an inquiry by an environmental

professional.

(ii) Interviews with past and present owners, operators,

and occupants of the facility and the real property on which

the facility is located for the purpose of gathering

information regarding the potential for oil at the facility

and on the real property on which the facility is located.

(iii) Reviews of historical sources, such as chain of

title documents, aerial photographs, building department

records, and land use records, to determine previous uses

and occupancies of the real property on which the facility

is located since the property was first developed.

(iv) Searches for recorded environmental cleanup liens

against the facility and the real property on which the

facility is located that are filed under Federal, State, or

local law.

(v) Reviews of Federal, State, and local government

records, waste disposal records, underground storage tank

records, and waste handling, generation, treatment,

disposal, and spill records, concerning oil at or near the

facility and on the real property on which the facility is

located.

(vi) Visual inspections of the facility, the real

property on which the facility is located, and adjoining

properties.

(vii) Specialized knowledge or experience on the part of

the responsible party.

(viii) The relationship of the purchase price to the

value of the facility and the real property on which the

facility is located, if oil was not at the facility or on

the real property.

(ix) Commonly known or reasonably ascertainable

information about the facility and the real property on

which the facility is located.

(x) The degree of obviousness of the presence or likely

presence of oil at the facility and on the real property on

which the facility is located, and the ability to detect the

oil by appropriate investigation.

(D) Interim standards and practices

(i) Real property purchased before May 31, 1997

With respect to real property purchased before May 31,

1997, in making a determination with respect to a

responsible party described in subparagraph (A), a court

shall take into account--

(I) any specialized knowledge or experience on the

part of the responsible party;

(II) the relationship of the purchase price to the

value of the facility and the real property on which the

facility is located, if the oil was not at the facility

or on the real property;

(III) commonly known or reasonably ascertainable

information about the facility and the real property on

which the facility is located;

(IV) the obviousness of the presence or likely

presence of oil at the facility and on the real property

on which the facility is located; and

(V) the ability of the responsible party to detect

oil by appropriate inspection.

(ii) Real property purchased on or after May 31,

1997

With respect to real property purchased on or after May

31, 1997, until the Secretary promulgates the regulations

described in clause (ii), the procedures of the American

Society for Testing and Materials, including the document

known as ``Standard E1527-97'', entitled ``Standard Practice

for Environmental Site Assessment: Phase I Environmental

Site Assessment Process'', shall satisfy the requirements in

subparagraph (A).

(E) Site inspection and title search

In the case of real property for residential use or other

similar use purchased by a nongovernmental or noncommercial

entity, inspection and title search of the facility and the real

property on which the facility is located that reveal no basis

for further investigation shall be considered to satisfy the

requirements of this paragraph.

(5) Previous owner or operator

Nothing in this paragraph or in subsection (a)(3) of this

section shall diminish the liability of any previous owner or

operator of such facility who would otherwise be liable under this

Act. Notwithstanding this paragraph, if a responsible party obtained

actual knowledge of the discharge or substantial threat of discharge

of oil at such facility when the responsible party owned the

facility and then subsequently transferred ownership of the facility

or the real property on which the facility is located to another

person without disclosing such knowledge, the responsible party

shall be treated as liable under 2702(a) \1\ of this title and no

defense under subsection (a) of this section shall be available to

such responsible party.

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\1\ So in original. Probably should be preceded by ``section''.

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(6) Limitation on defense

Nothing in this paragraph shall affect the liability under this

Act of a responsible party who, by any act or omission, caused or

contributed to the discharge or substantial threat of discharge of

oil which is the subject of the action relating to the facility.

(Pub. L. 101-380, title I, Sec. 1003, Aug. 18, 1990, 104 Stat. 491; Pub.

L. 108-293, title VII, Sec. 703(c), Aug. 9, 2004, 118 Stat. 1072.)

References in Text

The Intervention on the High Seas Act, referred to in subsec.

(c)(3), is Pub. L. 93-248, Feb. 5, 1974, 88 Stat. 8, as amended, which

is classified generally to chapter 28 (Sec. 1471 et seq.) of this title.

For complete classification of this Act to the Code, see Short Title

note set out under section 1471 of this title and Tables.

This Act, referred to in subsec. (d)(5), (6), is Pub. L. 101-380,

Aug. 18, 1990, 104 Stat. 484, as amended, known as the Oil Pollution Act

of 1990, which is classified principally to this chapter. For complete

classification of this Act to the Code, see Short Title note set out

under section 2701 of this title and Tables.

Amendments

2004--Subsec. (d). Pub. L. 108-293 added subsec. (d).