StatA

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

tice of such default, such person shall forfeit to
the United States the sum of $1,000 for each and
every day of the continuance of such failure,
which forfeiture shall be payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United
States in the district court of the United States
where such person has his principal office or in
any district in which he does business. The Administrator may upon application therefor
remit or mitigate any forfeiture provided for
under this subsection.
(e) Compensation of board members
Board members, other than officers or employees of Federal, State, or local governments,
shall be for each day (including travel-time)
during which they are performing board business, entitled to receive compensation at a rate
fixed by the Administrator but not in excess of
the maximum rate of pay for grade GS–18, as
provided in the General Schedule under section
5332 of title 5, and shall, notwithstanding the
limitations of sections 5703 and 5704 of title 5, be
fully reimbursed for travel, subsistence and related expenses.
(f) Enforcement proceedings
When any such recommendation adopted by
the Administrator involves the institution of
enforcement proceedings against any person to
obtain the abatement of pollution subject to
such recommendation, the Administrator shall
institute such proceedings if he believes that the
evidence warrants such proceedings. The district
court of the United States shall consider and determine de novo all relevant issues, but shall receive in evidence the record of the proceedings
before the conference or hearing board. The
court shall have jurisdiction to enter such judgment and orders enforcing such judgment as it
deems appropriate or to remand such proceedings to the Administrator for such further action as it may direct.
(June 30, 1948, ch. 758, title III, § 310, as added
Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 860.)
REFERENCES IN OTHER LAWS TO GS–16, 17, OR 18 PAY
RATES
References in laws to the rates of pay for GS–16, 17,
or 18, or to maximum rates of pay under the General
Schedule, to be considered references to rates payable
under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, § 101(c)(1)]
of Pub. L. 101–509, set out in a note under section 5376
of Title 5.

§ 1321. Oil and hazardous substance liability
(a) Definitions
For the purpose of this section, the term—
(1) ‘‘oil’’ means oil of any kind or in any
form, including, but not limited to, petroleum,
fuel oil, sludge, oil refuse, and oil mixed with
wastes other than dredged spoil;
(2) ‘‘discharge’’ includes, but is not limited
to, any spilling, leaking, pumping, pouring,
emitting, emptying or dumping, but excludes
(A) discharges in compliance with a permit
under section 1342 of this title, (B) discharges
resulting from circumstances identified and
reviewed and made a part of the public record

§ 1321

with respect to a permit issued or modified
under section 1342 of this title, and subject to
a condition in such permit,,1 (C) continuous or
anticipated intermittent discharges from a
point source, identified in a permit or permit
application under section 1342 of this title,
which are caused by events occurring within
the scope of relevant operating or treatment
systems, and (D) discharges incidental to mechanical removal authorized by the President
under subsection (c) of this section;
(3) ‘‘vessel’’ means every description of
watercraft or other artificial contrivance
used, or capable of being used, as a means of
transportation on water other than a public
vessel;
(4) ‘‘public vessel’’ means a vessel owned or
bareboat-chartered and operated by the United
States, or by a State or political subdivision
thereof, or by a foreign nation, except when
such vessel is engaged in commerce;
(5) ‘‘United States’’ means the States, the
District of Columbia, the Commonwealth of
Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, American Samoa,
the Virgin Islands, and the Trust Territory of
the Pacific Islands;
(6) ‘‘owner or operator’’ means (A) in the
case of a vessel, any person owning, operating,
or chartering by demise, such vessel, and (B)
in the case of an onshore facility, and an offshore facility, any person owning or operating
such onshore facility or offshore facility, and
(C) in the case of any abandoned offshore facility, the person who owned or operated such facility immediately prior to such abandonment;
(7) ‘‘person’’ includes an individual, firm,
corporation, association, and a partnership;
(8) ‘‘remove’’ or ‘‘removal’’ refers to containment and removal of the oil or hazardous substances from the water and shorelines or the
taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare, including,
but not limited to, fish, shellfish, wildlife, and
public and private property, shorelines, and
beaches;
(9) ‘‘contiguous zone’’ means the entire zone
established or to be established by the United
States under article 24 of the Convention on
the Territorial Sea and the Contiguous Zone;
(10) ‘‘onshore facility’’ means any facility
(including, but not limited to, motor vehicles
and rolling stock) of any kind located in, on,
or under, any land within the United States
other than submerged land;
(11) ‘‘offshore facility’’ means any facility of
any kind located in, on, or under, any of the
navigable waters of the United States, and any
facility of any kind which is subject to the jurisdiction of the United States and is located
in, on, or under any other waters, other than
a vessel or a public vessel;
(12) ‘‘act of God’’ means an act occasioned by
an unanticipated grave natural disaster;
(13) ‘‘barrel’’ means 42 United States gallons
at 60 degrees Fahrenheit;
1 So

in original.

§ 1321

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(14) ‘‘hazardous substance’’ means any substance designated pursuant to subsection (b)(2)
of this section;
(15) ‘‘inland oil barge’’ means a non-self-propelled vessel carrying oil in bulk as cargo and
certificated to operate only in the inland waters of the United States, while operating in
such waters;
(16) ‘‘inland waters of the United States’’
means those waters of the United States lying
inside the baseline from which the territorial
sea is measured and those waters outside such
baseline which are a part of the Gulf Intracoastal Waterway;
(17) ‘‘otherwise subject to the jurisdiction of
the United States’’ means subject to the jurisdiction of the United States by virtue of
United States citizenship, United States vessel
documentation or numbering, or as provided
for by international agreement to which the
United States is a party;
(18) ‘‘Area Committee’’ means an Area Committee established under subsection (j) of this
section;
(19) ‘‘Area Contingency Plan’’ means an Area
Contingency Plan prepared under subsection
(j) of this section;
(20) ‘‘Coast Guard District Response Group’’
means a Coast Guard District Response Group
established under subsection (j) of this section;
(21) ‘‘Federal On-Scene Coordinator’’ means
a Federal On-Scene Coordinator designated in
the National Contingency Plan;
(22) ‘‘National Contingency Plan’’ means the
National Contingency Plan prepared and published under subsection (d) of this section;
(23) ‘‘National Response Unit’’ means the
National Response Unit established under subsection (j) of this section;
(24) ‘‘worst case discharge’’ means—
(A) in the case of a vessel, a discharge in
adverse weather conditions of its entire
cargo; and
(B) in the case of an offshore facility or onshore facility, the largest foreseeable discharge in adverse weather conditions;
(25) ‘‘removal costs’’ means—
(A) the costs of removal of oil or a hazardous substance that are incurred after it is
discharged; and
(B) in any case in which there is a substantial threat of a discharge of oil or a hazardous substance, the costs to prevent, minimize, or mitigate that threat; and
(26) ‘‘nontank vessel’’ means a self-propelled
vessel that—
(A) is at least 400 gross tons as measured
under section 14302 of title 46 or, for vessels
not measured under that section, as measured under section 14502 of that title;
(B) is not a tank vessel;
(C) carries oil of any kind as fuel for main
propulsion; and
(D) operates on the navigable waters of the
United States, as defined in section 2101(17a)
of that title.

Page 422

(b) Congressional declaration of policy against
discharges of oil or hazardous substances;
designation of hazardous substances; study
of higher standard of care incentives and report to Congress; liability; penalties; civil actions: penalty limitations, separate offenses,
jurisdiction, mitigation of damages and costs,
recovery of removal costs, alternative remedies, and withholding clearance of vessels
(1) The Congress hereby declares that it is the
policy of the United States that there should be
no discharges of oil or hazardous substances into
or upon the navigable waters of the United
States, adjoining shorelines, or into or upon the
waters of the contiguous zone, or in connection
with activities under the Outer Continental
Shelf Lands Act [43 U.S.C. 1331 et seq.] or the
Deepwater Port Act of 1974 [33 U.S.C. 1501 et
seq.], or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States
(including resources under the Magnuson-Stevens Fishery Conservation and Management Act
[16 U.S.C. 1801 et seq.]).
(2)(A) The Administrator shall develop, promulgate, and revise as may be appropriate, regulations designating as hazardous substances,
other than oil as defined in this section, such
elements and compounds which, when discharged in any quantity into or upon the navigable waters of the United States or adjoining
shorelines or the waters of the contiguous zone
or in connection with activities under the Outer
Continental Shelf Lands Act [43 U.S.C. 1331 et
seq.] or the Deepwater Port Act of 1974 [33 U.S.C.
1501 et seq.], or which may affect natural resources belonging to, appertaining to, or under
the exclusive management authority of the
United States (including resources under the
Magnuson-Stevens Fishery Conservation and
Management Act [16 U.S.C. 1801 et seq.]), present
an imminent and substantial danger to the public health or welfare, including, but not limited
to, fish, shellfish, wildlife, shorelines, and
beaches.
(B) The Administrator shall within 18 months
after the date of enactment of this paragraph,
conduct a study and report to the Congress on
methods, mechanisms, and procedures to create
incentives to achieve a higher standard of care
in all aspects of the management and movement
of hazardous substances on the part of owners,
operators, or persons in charge of onshore facilities, offshore facilities, or vessels. The Administrator shall include in such study (1) limits of liability, (2) liability for third party damages, (3)
penalties and fees, (4) spill prevention plans, (5)
current practices in the insurance and banking
industries, and (6) whether the penalty enacted
in subclause (bb) of clause (iii) of subparagraph
(B) of subsection (b)(2) of section 311 of Public
Law 92–500 should be enacted.
(3) The discharge of oil or hazardous substances (i) into or upon the navigable waters of
the United States, adjoining shorelines, or into
or upon the waters of the contiguous zone, or (ii)
in connection with activities under the Outer
Continental Shelf Lands Act [43 U.S.C. 1331 et
seq.] or the Deepwater Port Act of 1974 [33 U.S.C.
1501 et seq.], or which may affect natural resources belonging to, appertaining to, or under

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

the exclusive management authority of the
United States (including resources under the
Magnuson-Stevens Fishery Conservation and
Management Act [16 U.S.C. 1801 et seq.]), in such
quantities as may be harmful as determined by
the President under paragraph (4) of this subsection, is prohibited, except (A) in the case of
such discharges into the waters of the contiguous zone or which may affect natural resources
belonging to, appertaining to, or under the exclusive management authority of the United
States (including resources under the Magnuson-Stevens Fishery Conservation and Management Act), where permitted under the Protocol
of 1978 Relating to the International Convention
for the Prevention of Pollution from Ships, 1973,
and (B) where permitted in quantities and at
times and locations or under such circumstances
or conditions as the President may, by regulation, determine not to be harmful. Any regulations issued under this subsection shall be consistent with maritime safety and with marine
and navigation laws and regulations and applicable water quality standards.
(4) The President shall by regulation determine for the purposes of this section those quantities of oil and any hazardous substances the
discharge of which may be harmful to the public
health or welfare or the environment of the
United States, including but not limited to fish,
shellfish, wildlife, and public and private property, shorelines, and beaches.
(5) Any person in charge of a vessel or of an
onshore facility or an offshore facility shall, as
soon as he has knowledge of any discharge of oil
or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate
agency of the United States Government of such
discharge. The Federal agency shall immediately notify the appropriate State agency of
any State which is, or may reasonably be expected to be, affected by the discharge of oil or
a hazardous substance. Any such person (A) in
charge of a vessel from which oil or a hazardous
substance is discharged in violation of paragraph (3)(i) of this subsection, or (B) in charge of
a vessel from which oil or a hazardous substance
is discharged in violation of paragraph (3)(ii) of
this subsection and who is otherwise subject to
the jurisdiction of the United States at the time
of the discharge, or (C) in charge of an onshore
facility or an offshore facility, who fails to notify immediately such agency of such discharge
shall, upon conviction, be fined in accordance
with title 18, or imprisoned for not more than 5
years, or both. Notification received pursuant to
this paragraph shall not be used against any
such natural person in any criminal case, except
a prosecution for perjury or for giving a false
statement.
(6) ADMINISTRATIVE PENALTIES.—
(A) VIOLATIONS.—Any owner, operator, or
person in charge of any vessel, onshore facility, or offshore facility—
(i) from which oil or a hazardous substance
is discharged in violation of paragraph (3), or
(ii) who fails or refuses to comply with any
regulation issued under subsection (j) of this
section to which that owner, operator, or
person in charge is subject,

§ 1321

may be assessed a class I or class II civil penalty by the Secretary of the department in
which the Coast Guard is operating, the Secretary of Transportation, or the Administrator.
(B) CLASSES OF PENALTIES.—
(i) CLASS I.—The amount of a class I civil
penalty under subparagraph (A) may not exceed $10,000 per violation, except that the
maximum amount of any class I civil penalty under this subparagraph shall not exceed $25,000. Before assessing a civil penalty
under this clause, the Administrator or Secretary, as the case may be, shall give to the
person to be assessed such penalty written
notice of the Administrator’s or Secretary’s
proposal to assess the penalty and the opportunity to request, within 30 days of the date
the notice is received by such person, a hearing on the proposed penalty. Such hearing
shall not be subject to section 554 or 556 of
title 5, but shall provide a reasonable opportunity to be heard and to present evidence.
(ii) CLASS II.—The amount of a class II
civil penalty under subparagraph (A) may
not exceed $10,000 per day for each day during which the violation continues; except
that the maximum amount of any class II
civil penalty under this subparagraph shall
not exceed $125,000. Except as otherwise provided in this subsection, a class II civil penalty shall be assessed and collected in the
same manner, and subject to the same provisions, as in the case of civil penalties assessed and collected after notice and opportunity for a hearing on the record in accordance with section 554 of title 5. The Administrator and Secretary may issue rules for discovery procedures for hearings under this
paragraph.
(C) RIGHTS OF INTERESTED PERSONS.—
(i) PUBLIC NOTICE.—Before issuing an order
assessing a class II civil penalty under this
paragraph the Administrator or Secretary,
as the case may be, shall provide public notice of and reasonable opportunity to comment on the proposed issuance of such order.
(ii) PRESENTATION OF EVIDENCE.—Any person who comments on a proposed assessment
of a class II civil penalty under this paragraph shall be given notice of any hearing
held under this paragraph and of the order
assessing such penalty. In any hearing held
under this paragraph, such person shall have
a reasonable opportunity to be heard and to
present evidence.
(iii) RIGHTS OF INTERESTED PERSONS TO A
HEARING.—If no hearing is held under subparagraph (B) before issuance of an order assessing a class II civil penalty under this
paragraph, any person who commented on
the proposed assessment may petition, within 30 days after the issuance of such order,
the Administrator or Secretary, as the case
may be, to set aside such order and to provide a hearing on the penalty. If the evidence presented by the petitioner in support
of the petition is material and was not considered in the issuance of the order, the Administrator or Secretary shall immediately
set aside such order and provide a hearing in

§ 1321

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

accordance with subparagraph (B)(ii). If the
Administrator or Secretary denies a hearing
under this clause, the Administrator or Secretary shall provide to the petitioner, and
publish in the Federal Register, notice of
and the reasons for such denial.
(D) FINALITY OF ORDER.—An order assessing
a class II civil penalty under this paragraph
shall become final 30 days after its issuance
unless a petition for judicial review is filed
under subparagraph (G) or a hearing is requested under subparagraph (C)(iii). If such a
hearing is denied, such order shall become
final 30 days after such denial.
(E) EFFECT OF ORDER.—Action taken by the
Administrator or Secretary, as the case may
be, under this paragraph shall not affect or
limit the Administrator’s or Secretary’s authority to enforce any provision of this chapter; except that any violation—
(i) with respect to which the Administrator or Secretary has commenced and is
diligently prosecuting an action to assess a
class II civil penalty under this paragraph,
or
(ii) for which the Administrator or Secretary has issued a final order assessing a
class II civil penalty not subject to further
judicial review and the violator has paid a
penalty assessed under this paragraph,
shall not be the subject of a civil penalty action under section 1319(d), 1319(g), or 1365 of
this title or under paragraph (7).
(F) EFFECT OF ACTION ON COMPLIANCE.—No
action by the Administrator or Secretary
under this paragraph shall affect any person’s
obligation to comply with any section of this
chapter.
(G) JUDICIAL REVIEW.—Any person against
whom a civil penalty is assessed under this
paragraph or who commented on the proposed
assessment of such penalty in accordance with
subparagraph (C) may obtain review of such
assessment—
(i) in the case of assessment of a class I
civil penalty, in the United States District
Court for the District of Columbia or in the
district in which the violation is alleged to
have occurred, or
(ii) in the case of assessment of a class II
civil penalty, in United States Court of Appeals for the District of Columbia Circuit or
for any other circuit in which such person
resides or transacts business,
by filing a notice of appeal in such court within the 30-day period beginning on the date the
civil penalty order is issued and by simultaneously sending a copy of such notice by certified mail to the Administrator or Secretary,
as the case may be, and the Attorney General.
The Administrator or Secretary shall promptly file in such court a certified copy of the
record on which the order was issued. Such
court shall not set aside or remand such order
unless there is not substantial evidence in the
record, taken as a whole, to support the finding of a violation or unless the Administrator’s or Secretary’s assessment of the penalty
constitutes an abuse of discretion and shall
not impose additional civil penalties for the

Page 424

same violation unless the Administrator’s or
Secretary’s assessment of the penalty constitutes an abuse of discretion.
(H) COLLECTION.—If any person fails to pay
an assessment of a civil penalty—
(i) after the assessment has become final,
or
(ii) after a court in an action brought
under subparagraph (G) has entered a final
judgment in favor of the Administrator or
Secretary, as the case may be,
the Administrator or Secretary shall request
the Attorney General to bring a civil action in
an appropriate district court to recover the
amount assessed (plus interest at currently
prevailing rates from the date of the final
order or the date of the final judgment, as the
case may be). In such an action, the validity,
amount, and appropriateness of such penalty
shall not be subject to review. Any person who
fails to pay on a timely basis the amount of an
assessment of a civil penalty as described in
the first sentence of this subparagraph shall be
required to pay, in addition to such amount
and interest, attorneys fees and costs for collection proceedings and a quarterly nonpayment penalty for each quarter during
which such failure to pay persists. Such nonpayment penalty shall be in an amount equal
to 20 percent of the aggregate amount of such
person’s penalties and nonpayment penalties
which are unpaid as of the beginning of such
quarter.
(I) SUBPOENAS.—The Administrator or Secretary, as the case may be, may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers,
books, or documents in connection with hearings under this paragraph. In case of contumacy or refusal to obey a subpoena issued pursuant to this subparagraph and served upon
any person, the district court of the United
States for any district in which such person is
found, resides, or transacts business, upon application by the United States and after notice
to such person, shall have jurisdiction to issue
an order requiring such person to appear and
give testimony before the administrative law
judge or to appear and produce documents before the administrative law judge, or both, and
any failure to obey such order of the court
may be punished by such court as a contempt
thereof.
(7) CIVIL PENALTY ACTION.—
(A) DISCHARGE, GENERALLY.—Any person who
is the owner, operator, or person in charge of
any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is
discharged in violation of paragraph (3), shall
be subject to a civil penalty in an amount up
to $25,000 per day of violation or an amount up
to $1,000 per barrel of oil or unit of reportable
quantity of hazardous substances discharged.
(B) FAILURE TO REMOVE OR COMPLY.—Any
person described in subparagraph (A) who,
without sufficient cause—
(i) fails to properly carry out removal of
the discharge under an order of the President pursuant to subsection (c) of this section; or

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(ii) fails to comply with an order pursuant
to subsection (e)(1)(B) of this section;
shall be subject to a civil penalty in an
amount up to $25,000 per day of violation or an
amount up to 3 times the costs incurred by the
Oil Spill Liability Trust Fund as a result of
such failure.
(C) FAILURE TO COMPLY WITH REGULATION.—
Any person who fails or refuses to comply with
any regulation issued under subsection (j) of
this section shall be subject to a civil penalty
in an amount up to $25,000 per day of violation.
(D) GROSS NEGLIGENCE.—In any case in which
a violation of paragraph (3) was the result of
gross negligence or willful misconduct of a
person described in subparagraph (A), the person shall be subject to a civil penalty of not
less than $100,000, and not more than $3,000 per
barrel of oil or unit of reportable quantity of
hazardous substance discharged.
(E) JURISDICTION.—An action to impose a
civil penalty under this paragraph may be
brought in the district court of the United
States for the district in which the defendant
is located, resides, or is doing business, and
such court shall have jurisdiction to assess
such penalty.
(F) LIMITATION.—A person is not liable for a
civil penalty under this paragraph for a discharge if the person has been assessed a civil
penalty under paragraph (6) for the discharge.
(8) DETERMINATION OF AMOUNT.—In determining the amount of a civil penalty under paragraphs (6) and (7), the Administrator, Secretary,
or the court, as the case may be, shall consider
the seriousness of the violation or violations,
the economic benefit to the violator, if any, resulting from the violation, the degree of culpability involved, any other penalty for the
same incident, any history of prior violations,
the nature, extent, and degree of success of any
efforts of the violator to minimize or mitigate
the effects of the discharge, the economic impact of the penalty on the violator, and any
other matters as justice may require.
(9) MITIGATION OF DAMAGE.—In addition to establishing a penalty for the discharge of oil or a
hazardous substance, the Administrator or the
Secretary of the department in which the Coast
Guard is operating may act to mitigate the
damage to the public health or welfare caused
by such discharge. The cost of such mitigation
shall be deemed a cost incurred under subsection
(c) of this section for the removal of such substance by the United States Government.
(10) RECOVERY OF REMOVAL COSTS.—Any costs
of removal incurred in connection with a discharge excluded by subsection (a)(2)(C) of this
section shall be recoverable from the owner or
operator of the source of the discharge in an action brought under section 1319(b) of this title.
(11) LIMITATION.—Civil penalties shall not be
assessed under both this section and section 1319
of this title for the same discharge.
(12) WITHHOLDING CLEARANCE.—If any owner,
operator, or person in charge of a vessel is liable
for a civil penalty under this subsection, or if
reasonable cause exists to believe that the
owner, operator, or person in charge may be subject to a civil penalty under this subsection, the

§ 1321

Secretary of the Treasury, upon the request of
the Secretary of the department in which the
Coast Guard is operating or the Administrator,
shall with respect to such vessel refuse or revoke—
(A) the clearance required by section 60105 of
title 46;
(B) a permit to proceed under section 4367 of
the Revised Statutes of the United States (46
U.S.C. App. 313); 2 and
(C) a permit to depart required under section
1443 2 of title 19;
as applicable. Clearance or a permit refused or
revoked under this paragraph may be granted
upon the filing of a bond or other surety satisfactory to the Secretary of the department in
which the Coast Guard is operating or the Administrator.
(c) Federal removal authority
(1) General removal requirement
(A) The President shall, in accordance with
the National Contingency Plan and any appropriate Area Contingency Plan, ensure effective
and immediate removal of a discharge, and
mitigation or prevention of a substantial
threat of a discharge, of oil or a hazardous
substance—
(i) into or on the navigable waters;
(ii) on the adjoining shorelines to the navigable waters;
(iii) into or on the waters of the exclusive
economic zone; or
(iv) that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United
States.
(B) In carrying out this paragraph, the
President may—
(i) remove or arrange for the removal of a
discharge, and mitigate or prevent a substantial threat of a discharge, at any time;
(ii) direct or monitor all Federal, State,
and private actions to remove a discharge;
and
(iii) remove and, if necessary, destroy a
vessel discharging, or threatening to discharge, by whatever means are available.
(2) Discharge posing substantial threat to public health or welfare
(A) If a discharge, or a substantial threat of
a discharge, of oil or a hazardous substance
from a vessel, offshore facility, or onshore facility is of such a size or character as to be a
substantial threat to the public health or welfare of the United States (including but not
limited to fish, shellfish, wildlife, other natural resources, and the public and private
beaches and shorelines of the United States),
the President shall direct all Federal, State,
and private actions to remove the discharge or
to mitigate or prevent the threat of the discharge.
(B) In carrying out this paragraph, the
President may, without regard to any other
provision of law governing contracting procedures or employment of personnel by the Federal Government—
2 See

References in Text note below.

§ 1321

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(i) remove or arrange for the removal of
the discharge, or mitigate or prevent the
substantial threat of the discharge; and
(ii) remove and, if necessary, destroy a
vessel discharging, or threatening to discharge, by whatever means are available.
(3) Actions in accordance with National Contingency Plan
(A) Each Federal agency, State, owner or operator, or other person participating in efforts
under this subsection shall act in accordance
with the National Contingency Plan or as directed by the President.
(B) An owner or operator participating in efforts under this subsection shall act in accordance with the National Contingency Plan and
the applicable response plan required under
subsection (j) of this section, or as directed by
the President, except that the owner or operator may deviate from the applicable response
plan if the President or the Federal On-Scene
Coordinator determines that deviation from
the response plan would provide for a more expeditious or effective response to the spill or
mitigation of its environmental effects.
(4) Exemption from liability
(A) A person is not liable for removal costs
or damages which result from actions taken or
omitted to be taken in the course of rendering
care, assistance, or advice consistent with the
National Contingency Plan or as otherwise directed by the President relating to a discharge
or a substantial threat of a discharge of oil or
a hazardous substance.
(B) Subparagraph (A) does not apply—
(i) to a responsible party;
(ii) to a response under the Comprehensive
Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et
seq.);
(iii) with respect to personal injury or
wrongful death; or
(iv) if the person is grossly negligent or engages in willful misconduct.
(C) A responsible party is liable for any removal costs and damages that another person
is relieved of under subparagraph (A).
(5) Obligation and liability of owner or operator not affected
Nothing in this subsection affects—
(A) the obligation of an owner or operator
to respond immediately to a discharge, or
the threat of a discharge, of oil; or
(B) the liability of a responsible party
under the Oil Pollution Act of 1990 [33 U.S.C.
2701 et seq.].
(6) ‘‘Responsible party’’ defined
For purposes of this subsection, the term
‘‘responsible party’’ has the meaning given
that term under section 1001 of the Oil Pollution Act of 1990 [33 U.S.C. 2701].
(d) National Contingency Plan
(1) Preparation by President
The President shall prepare and publish a
National Contingency Plan for removal of oil
and hazardous substances pursuant to this section.

Page 426

(2) Contents
The National Contingency Plan shall provide for efficient, coordinated, and effective
action to minimize damage from oil and hazardous substance discharges, including containment, dispersal, and removal of oil and
hazardous substances, and shall include, but
not be limited to, the following:
(A) Assignment of duties and responsibilities among Federal departments and agencies in coordination with State and local
agencies and port authorities including, but
not limited to, water pollution control and
conservation and trusteeship of natural resources (including conservation of fish and
wildlife).
(B) Identification, procurement, maintenance, and storage of equipment and supplies.
(C) Establishment or designation of Coast
Guard strike teams, consisting of—
(i) personnel who shall be trained, prepared, and available to provide necessary
services to carry out the National Contingency Plan;
(ii) adequate oil and hazardous substance
pollution control equipment and material;
and
(iii) a detailed oil and hazardous substance pollution and prevention plan, including measures to protect fisheries and
wildlife.
(D) A system of surveillance and notice designed to safeguard against as well as ensure
earliest possible notice of discharges of oil
and hazardous substances and imminent
threats of such discharges to the appropriate
State and Federal agencies.
(E) Establishment of a national center to
provide coordination and direction for operations in carrying out the Plan.
(F) Procedures and techniques to be employed in identifying, containing, dispersing,
and removing oil and hazardous substances.
(G) A schedule, prepared in cooperation
with the States, identifying—
(i) dispersants, other chemicals, and
other spill mitigating devices and substances, if any, that may be used in carrying out the Plan,
(ii) the waters in which such dispersants,
other chemicals, and other spill mitigating
devices and substances may be used, and
(iii) the quantities of such dispersant,
other chemicals, or other spill mitigating
device or substance which can be used
safely in such waters,
which schedule shall provide in the case of
any dispersant, chemical, spill mitigating
device or substance, or waters not specifically identified in such schedule that the
President, or his delegate, may, on a caseby-case basis, identify the dispersants, other
chemicals, and other spill mitigating devices
and substances which may be used, the waters in which they may be used, and the
quantities which can be used safely in such
waters.
(H) A system whereby the State or States
affected by a discharge of oil or hazardous

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

substance may act where necessary to remove such discharge and such State or
States may be reimbursed in accordance
with the Oil Pollution Act of 1990 [33 U.S.C.
2701 et seq.], in the case of any discharge of
oil from a vessel or facility, for the reasonable costs incurred for that removal, from
the Oil Spill Liability Trust Fund.
(I) Establishment of criteria and procedures to ensure immediate and effective Federal identification of, and response to, a discharge, or the threat of a discharge, that results in a substantial threat to the public
health or welfare of the United States, as required under subsection (c)(2) of this section.
(J) Establishment of procedures and standards for removing a worst case discharge of
oil, and for mitigating or preventing a substantial threat of such a discharge.
(K) Designation of the Federal official who
shall be the Federal On-Scene Coordinator
for each area for which an Area Contingency
Plan is required to be prepared under subsection (j) of this section.
(L) Establishment of procedures for the coordination of activities of—
(i) Coast Guard strike teams established
under subparagraph (C);
(ii) Federal On-Scene Coordinators designated under subparagraph (K);
(iii) District Response Groups established under subsection (j) of this section;
and
(iv) Area Committees established under
subsection (j) of this section.
(M) A fish and wildlife response plan, developed in consultation with the United
States Fish and Wildlife Service, the National Oceanic and Atmospheric Administration, and other interested parties (including
State fish and wildlife conservation officials), for the immediate and effective protection, rescue, and rehabilitation of, and
the minimization of risk of damage to, fish
and wildlife resources and their habitat that
are harmed or that may be jeopardized by a
discharge.
(3) Revisions and amendments
The President may, from time to time, as
the President deems advisable, revise or otherwise amend the National Contingency Plan.
(4) Actions in accordance with National Contingency Plan
After publication of the National Contingency Plan, the removal of oil and hazardous
substances and actions to minimize damage
from oil and hazardous substance discharges
shall, to the greatest extent possible, be in accordance with the National Contingency Plan.
(e) Civil enforcement
(1) Orders protecting public health
In addition to any action taken by a State
or local government, when the President determines that there may be an imminent and
substantial threat to the public health or welfare of the United States, including fish, shellfish, and wildlife, public and private property,
shorelines, beaches, habitat, and other living

§ 1321

and nonliving natural resources under the jurisdiction or control of the United States, because of an actual or threatened discharge of
oil or a hazardous substance from a vessel or
facility in violation of subsection (b) of this
section, the President may—
(A) require the Attorney General to secure
any relief from any person, including the
owner or operator of the vessel or facility, as
may be necessary to abate such endangerment; or
(B) after notice to the affected State, take
any other action under this section, including issuing administrative orders, that may
be necessary to protect the public health
and welfare.
(2) Jurisdiction of district courts
The district courts of the United States
shall have jurisdiction to grant any relief
under this subsection that the public interest
and the equities of the case may require.
(f) Liability for actual costs of removal
(1) Except where an owner or operator can
prove that a discharge was caused solely by (A)
an act of God, (B) an act of war, (C) negligence
on the part of the United States Government, or
(D) an act or omission of a third party without
regard to whether any such act or omission was
or was not negligent, or any combination of the
foregoing clauses, such owner or operator of any
vessel from which oil or a hazardous substance
is discharged in violation of subsection (b)(3) of
this section shall, notwithstanding any other
provision of law, be liable to the United States
Government for the actual costs incurred under
subsection (c) of this section for the removal of
such oil or substance by the United States Government in an amount not to exceed, in the case
of an inland oil barge $125 per gross ton of such
barge, or $125,000, whichever is greater, and in
the case of any other vessel, $150 per gross ton
of such vessel (or, for a vessel carrying oil or
hazardous substances as cargo, $250,000), whichever is greater, except that where the United
States can show that such discharge was the result of willful negligence or willful misconduct
within the privity and knowledge of the owner,
such owner or operator shall be liable to the
United States Government for the full amount
of such costs. Such costs shall constitute a maritime lien on such vessel which may be recovered in an action in rem in the district court of
the United States for any district within which
any vessel may be found. The United States may
also bring an action against the owner or operator of such vessel in any court of competent jurisdiction to recover such costs.
(2) Except where an owner or operator of an
onshore facility can prove that a discharge was
caused solely by (A) an act of God, (B) an act of
war, (C) negligence on the part of the United
States Government, or (D) an act or omission of
a third party without regard to whether any
such act or omission was or was not negligent,
or any combination of the foregoing clauses,
such owner or operator of any such facility from
which oil or a hazardous substance is discharged
in violation of subsection (b)(3) of this section
shall be liable to the United States Government
for the actual costs incurred under subsection

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(c) of this section for the removal of such oil or
substance by the United States Government in
an amount not to exceed $50,000,000, except that
where the United States can show that such discharge was the result of willful negligence or
willful misconduct within the privity and
knowledge of the owner, such owner or operator
shall be liable to the United States Government
for the full amount of such costs. The United
States may bring an action against the owner or
operator of such facility in any court of competent jurisdiction to recover such costs. The
Administrator is authorized, by regulation,
after consultation with the Secretary of Commerce and the Small Business Administration,
to establish reasonable and equitable classifications of those onshore facilities having a total
fixed storage capacity of 1,000 barrels or less
which he determines because of size, type, and
location do not present a substantial risk of the
discharge of oil or a hazardous substance in violation of subsection (b)(3) of this section, and
apply with respect to such classifications differing limits of liability which may be less than
the amount contained in this paragraph.
(3) Except where an owner or operator of an
offshore facility can prove that a discharge was
caused solely by (A) an act of God, (B) an act of
war, (C) negligence on the part of the United
States Government, or (D) an act or omission of
a third party without regard to whether any
such act or omission was or was not negligent,
or any combination of the foregoing clauses,
such owner or operator of any such facility from
which oil or a hazardous substance is discharged
in violation of subsection (b)(3) of this section
shall, notwithstanding any other provision of
law, be liable to the United States Government
for the actual costs incurred under subsection
(c) of this section for the removal of such oil or
substance by the United States Government in
an amount not to exceed $50,000,000, except that
where the United States can show that such discharge was the result of willful negligence or
willful misconduct within the privity and
knowledge of the owner, such owner or operator
shall be liable to the United States Government
for the full amount of such costs. The United
States may bring an action against the owner or
operator of such a facility in any court of competent jurisdiction to recover such costs.
(4) The costs of removal of oil or a hazardous
substance for which the owner or operator of a
vessel or onshore or offshore facility is liable
under subsection (f) of this section shall include
any costs or expenses incurred by the Federal
Government or any State government in the restoration or replacement of natural resources
damaged or destroyed as a result of a discharge
of oil or a hazardous substance in violation of
subsection (b) of this section.
(5) The President, or the authorized representative of any State, shall act on behalf of the
public as trustee of the natural resources to recover for the costs of replacing or restoring such
resources. Sums recovered shall be used to restore, rehabilitate, or acquire the equivalent of
such natural resources by the appropriate agencies of the Federal Government, or the State
government.

Page 428

(g) Third party liability
Where the owner or operator of a vessel (other
than an inland oil barge) carrying oil or hazardous substances as cargo or an onshore or offshore facility which handles or stores oil or hazardous substances in bulk, from which oil or a
hazardous substance is discharged in violation
of subsection (b) of this section, alleges that
such discharge was caused solely by an act or
omission of a third party, such owner or operator shall pay to the United States Government
the actual costs incurred under subsection (c) of
this section for removal of such oil or substance
and shall be entitled by subrogation to all rights
of the United States Government to recover
such costs from such third party under this subsection. In any case where an owner or operator
of a vessel, of an onshore facility, or of an offshore facility, from which oil or a hazardous
substance is discharged in violation of subsection (b)(3) of this section, proves that such
discharge of oil or hazardous substance was
caused solely by an act or omission of a third
party, or was caused solely by such an act or
omission in combination with an act of God, an
act of war, or negligence on the part of the
United States Government, such third party
shall, notwithstanding any other provision of
law, be liable to the United States Government
for the actual costs incurred under subsection
(c) of this section for removal of such oil or substance by the United States Government, except
where such third party can prove that such discharge was caused solely by (A) an act of God,
(B) an act of war, (C) negligence on the part of
the United States Government, or (D) an act or
omission of another party without regard to
whether such act or omission was or was not
negligent, or any combination of the foregoing
clauses. If such third party was the owner or operator of a vessel which caused the discharge of
oil or a hazardous substance in violation of subsection (b)(3) of this section, the liability of such
third party under this subsection shall not exceed, in the case of an inland oil barge $125 per
gross ton of such barge, or $125,000, whichever is
greater, and in the case of any other vessel, $150
per gross ton of such vessel (or, for a vessel carrying oil or hazardous substances as cargo,
$250,000), whichever is greater. In any other case
the liability of such third party shall not exceed
the limitation which would have been applicable
to the owner or operator of the vessel or the onshore or offshore facility from which the discharge actually occurred if such owner or operator were liable. If the United States can show
that the discharge of oil or a hazardous substance in violation of subsection (b)(3) of this
section was the result of willful negligence or
willful misconduct within the privity and
knowledge of such third party, such third party
shall be liable to the United States Government
for the full amount of such removal costs. The
United States may bring an action against the
third party in any court of competent jurisdiction to recover such removal costs.
(h) Rights against third parties who caused or
contributed to discharge
The liabilities established by this section shall
in no way affect any rights which (1) the owner

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

or operator of a vessel or of an onshore facility
or an offshore facility may have against any
third party whose acts may in any way have
caused or contributed to such discharge, or (2)
the United States Government may have
against any third party whose actions may in
any way have caused or contributed to the discharge of oil or hazardous substance.
(i) Recovery of removal costs
In any case where an owner or operator of a
vessel or an onshore facility or an offshore facility from which oil or a hazardous substance is
discharged in violation of subsection (b)(3) of
this section acts to remove such oil or substance
in accordance with regulations promulgated
pursuant to this section, such owner or operator
shall be entitled to recover the reasonable costs
incurred in such removal upon establishing, in a
suit which may be brought against the United
States Government in the United States Court
of Federal Claims, that such discharge was
caused solely by (A) an act of God, (B) an act of
war, (C) negligence on the part of the United
States Government, or (D) an act or omission of
a third party without regard to whether such
act or omission was or was not negligent, or of
any combination of the foregoing causes.
(j) National Response System
(1) In general
Consistent with the National Contingency
Plan required by subsection (c)(2) of this section, as soon as practicable after October 18,
1972, and from time to time thereafter, the
President shall issue regulations consistent
with maritime safety and with marine and
navigation laws (A) establishing methods and
procedures for removal of discharged oil and
hazardous substances, (B) establishing criteria
for the development and implementation of
local and regional oil and hazardous substance
removal contingency plans, (C) establishing
procedures, methods, and equipment and other
requirements for equipment to prevent discharges of oil and hazardous substances from
vessels and from onshore facilities and offshore facilities, and to contain such discharges, and (D) governing the inspection of
vessels carrying cargoes of oil and hazardous
substances and the inspection of such cargoes
in order to reduce the likelihood of discharges
of oil from vessels in violation of this section.
(2) National Response Unit
The Secretary of the department in which
the Coast Guard is operating shall establish a
National Response Unit at Elizabeth City,
North Carolina. The Secretary, acting through
the National Response Unit—
(A) shall compile and maintain a comprehensive computer list of spill removal resources, personnel, and equipment that is
available worldwide and within the areas
designated by the President pursuant to
paragraph (4), and of information regarding
previous spills, including data from universities, research institutions, State governments, and other nations, as appropriate,
which shall be disseminated as appropriate
to response groups and area committees, and
which shall be available to Federal and
State agencies and the public;

§ 1321

(B) shall provide technical assistance,
equipment, and other resources requested by
a Federal On-Scene Coordinator;
(C) shall coordinate use of private and public personnel and equipment to remove a
worst case discharge, and to mitigate or prevent a substantial threat of such a discharge, from a vessel, offshore facility, or
onshore facility operating in or near an area
designated by the President pursuant to
paragraph (4);
(D) may provide technical assistance in
the preparation of Area Contingency Plans
required under paragraph (4);
(E) shall administer Coast Guard strike
teams established under the National Contingency Plan;
(F) shall maintain on file all Area Contingency Plans approved by the President under
this subsection; and
(G) shall review each of those plans that
affects its responsibilities under this subsection.
(3) Coast Guard District Response Groups
(A) The Secretary of the department in
which the Coast Guard is operating shall establish in each Coast Guard district a Coast
Guard District Response Group.
(B) Each Coast Guard District Response
Group shall consist of—
(i) the Coast Guard personnel and equipment, including firefighting equipment, of
each port within the district;
(ii) additional prepositioned equipment;
and
(iii) a district response advisory staff.
(C) Coast Guard district response groups—
(i) shall provide technical assistance,
equipment, and other resources when required by a Federal On-Scene Coordinator;
(ii) shall maintain all Coast Guard response equipment within its district;
(iii) may provide technical assistance in
the preparation of Area Contingency Plans
required under paragraph (4); and
(iv) shall review each of those plans that
affect its area of geographic responsibility.
(4) Area Committees and Area Contingency
Plans
(A) There is established for each area designated by the President an Area Committee
comprised of members appointed by the President from qualified personnel of Federal,
State, and local agencies.
(B) Each Area Committee, under the direction of the Federal On-Scene Coordinator for
its area, shall—
(i) prepare for its area the Area Contingency Plan required under subparagraph (C);
(ii) work with State and local officials to
enhance the contingency planning of those
officials and to assure preplanning of joint
response efforts, including appropriate procedures for mechanical recovery, dispersal,
shoreline cleanup, protection of sensitive environmental areas, and protection, rescue,
and rehabilitation of fisheries and wildlife;
and
(iii) work with State and local officials to
expedite decisions for the use of dispersants
and other mitigating substances and devices.

§ 1321

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(C) Each Area Committee shall prepare and
submit to the President for approval an Area
Contingency Plan for its area. The Area Contingency Plan shall—
(i) when implemented in conjunction with
the National Contingency Plan, be adequate
to remove a worst case discharge, and to
mitigate or prevent a substantial threat of
such a discharge, from a vessel, offshore facility, or onshore facility operating in or
near the area;
(ii) describe the area covered by the plan,
including the areas of special economic or
environmental importance that might be
damaged by a discharge;
(iii) describe in detail the responsibilities
of an owner or operator and of Federal,
State, and local agencies in removing a discharge, and in mitigating or preventing a
substantial threat of a discharge;
(iv) list the equipment (including firefighting equipment), dispersants or other mitigating substances and devices, and personnel
available to an owner or operator and Federal, State, and local agencies, to ensure an
effective and immediate removal of a discharge, and to ensure mitigation or prevention of a substantial threat of a discharge;
(v) compile a list of local scientists, both
inside and outside Federal Government service, with expertise in the environmental effects of spills of the types of oil typically
transported in the area, who may be contacted to provide information or, where appropriate, participate in meetings of the scientific support team convened in response to
a spill, and describe the procedures to be followed for obtaining an expedited decision regarding the use of dispersants;
(vi) describe in detail how the plan is integrated into other Area Contingency Plans
and vessel, offshore facility, and onshore facility response plans approved under this
subsection, and into operating procedures of
the National Response Unit;
(vii) include any other information the
President requires; and
(viii) be updated periodically by the Area
Committee.
(D) The President shall—
(i) review and approve Area Contingency
Plans under this paragraph; and
(ii) periodically review Area Contingency
Plans so approved.
(5) Tank vessel, nontank vessel, and facility response plans
(A)(i) The President shall issue regulations
which require an owner or operator of a tank
vessel or facility described in subparagraph (C)
to prepare and submit to the President a plan
for responding, to the maximum extent practicable, to a worst case discharge, and to a
substantial threat of such a discharge, of oil or
a hazardous substance.
(ii) The President shall also issue regulations which require an owner or operator of a
nontank vessel to prepare and submit to the
President a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a
discharge, of oil.

Page 430

(B) The Secretary of the Department in
which the Coast Guard is operating may issue
regulations which require an owner or operator of a tank vessel, a nontank vessel, or a facility described in subparagraph (C) that
transfers noxious liquid substances in bulk to
or from a vessel to prepare and submit to the
Secretary a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a
discharge, of a noxious liquid substance that is
not designated as a hazardous substance or
regulated as oil in any other law or regulation.
For purposes of this paragraph, the term ‘‘noxious liquid substance’’ has the same meaning
when that term is used in the MARPOL Protocol described in section 1901(a)(3) 2 of this title.
(C) The tank vessels, nontank vessels, and
facilities referred to in subparagraphs (A) and
(B) are the following:
(i) A tank vessel, as defined under section
2101 of title 46.
(ii) A nontank vessel.
(iii) An offshore facility.
(iv) An onshore facility that, because of its
location, could reasonably be expected to
cause substantial harm to the environment
by discharging into or on the navigable waters, adjoining shorelines, or the exclusive
economic zone.
(D) A response plan required under this paragraph shall—
(i) be consistent with the requirements of
the National Contingency Plan and Area
Contingency Plans;
(ii) identify the qualified individual having
full authority to implement removal actions, and require immediate communications between that individual and the appropriate Federal official and the persons providing personnel and equipment pursuant to
clause (iii);
(iii) identify, and ensure by contract or
other means approved by the President the
availability of, private personnel and equipment necessary to remove to the maximum
extent practicable a worst case discharge
(including a discharge resulting from fire or
explosion), and to mitigate or prevent a substantial threat of such a discharge;
(iv) describe the training, equipment testing, periodic unannounced drills, and response actions of persons on the vessel or at
the facility, to be carried out under the plan
to ensure the safety of the vessel or facility
and to mitigate or prevent the discharge, or
the substantial threat of a discharge;
(v) be updated periodically; and
(vi) be resubmitted for approval of each
significant change.
(E) With respect to any response plan submitted under this paragraph for an onshore facility that, because of its location, could reasonably be expected to cause significant and
substantial harm to the environment by discharging into or on the navigable waters or
adjoining shorelines or the exclusive economic
zone, and with respect to each response plan
submitted under this paragraph for a tank vessel, nontank vessel, or offshore facility, the
President shall—

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(i) promptly review such response plan;
(ii) require amendments to any plan that
does not meet the requirements of this paragraph;
(iii) approve any plan that meets the requirements of this paragraph;
(iv) review each plan periodically thereafter; and
(v) in the case of a plan for a nontank vessel, consider any applicable State-mandated
response plan in effect on August 9, 2004, and
ensure consistency to the extent practicable.
(F) A tank vessel, nontank vessel, offshore
facility, or onshore facility required to prepare a response plan under this subsection
may not handle, store, or transport oil unless—
(i) in the case of a tank vessel, nontank
vessel, offshore facility, or onshore facility
for which a response plan is reviewed by the
President under subparagraph (E), the plan
has been approved by the President; and
(ii) the vessel or facility is operating in
compliance with the plan.
(G) Notwithstanding subparagraph (E), the
President may authorize a tank vessel,
nontank vessel, offshore facility, or onshore
facility to operate without a response plan approved under this paragraph, until not later
than 2 years after the date of the submission
to the President of a plan for the tank vessel,
nontank vessel, or facility, if the owner or operator certifies that the owner or operator has
ensured by contract or other means approved
by the President the availability of private
personnel and equipment necessary to respond, to the maximum extent practicable, to
a worst case discharge or a substantial threat
of such a discharge.
(H) The owner or operator of a tank vessel,
nontank vessel, offshore facility, or onshore
facility may not claim as a defense to liability
under title I of the Oil Pollution Act of 1990 [33
U.S.C. 2701 et seq.] that the owner or operator
was acting in accordance with an approved response plan.
(I) The Secretary shall maintain, in the Vessel Identification System established under
chapter 125 of title 46, the dates of approval
and review of a response plan under this paragraph for each tank vessel and nontank vessel
that is a vessel of the United States.
(6) Equipment requirements and inspection
The President may require—
(A) periodic inspection of containment
booms, skimmers, vessels, and other major
equipment used to remove discharges; and
(B) vessels operating on navigable waters
and carrying oil or a hazardous substance in
bulk as cargo, and nontank vessels carrying
oil of any kind as fuel for main propulsion,
to carry appropriate removal equipment
that employs the best technology economically feasible and that is compatible with
the safe operation of the vessel.
(7) Area drills
The President shall periodically conduct
drills of removal capability, without prior notice, in areas for which Area Contingency

§ 1321

Plans are required under this subsection and
under relevant tank vessel, nontank vessel,
and facility response plans. The drills may include participation by Federal, State, and
local agencies, the owners and operators of
vessels and facilities in the area, and private
industry. The President may publish annual
reports on these drills, including assessments
of the effectiveness of the plans and a list of
amendments made to improve plans.
(8) United States Government not liable
The United States Government is not liable
for any damages arising from its actions or
omissions relating to any response plan required by this section.
(k) Repealed. Pub. L. 101–380, title II, § 2002(b)(2),
Aug. 18, 1990, 104 Stat. 507
(l) Administration
The President is authorized to delegate the administration of this section to the heads of
those Federal departments, agencies, and instrumentalities which he determines to be appropriate. Each such department, agency, and instrumentality, in order to avoid duplication of
effort, shall, whenever appropriate, utilize the
personnel, services, and facilities of other Federal departments, agencies, and instrumentalities.
(m) Administrative provisions
(1) For vessels
Anyone authorized by the President to enforce the provisions of this section with respect to any vessel may, except as to public
vessels—
(A) board and inspect any vessel upon the
navigable waters of the United States or the
waters of the contiguous zone,
(B) with or without a warrant, arrest any
person who in the presence or view of the authorized person violates the provisions of
this section or any regulation issued thereunder, and
(C) execute any warrant or other process
issued by an officer or court of competent
jurisdiction.
(2) For facilities
(A) Recordkeeping
Whenever required to carry out the purposes of this section, the Administrator, the
Secretary of Transportation, or the Secretary of the Department in which the Coast
Guard is operating shall require the owner
or operator of a facility to which this section applies to establish and maintain such
records, make such reports, install, use, and
maintain such monitoring equipment and
methods, and provide such other information as the Administrator or Secretary, as
the case may be, may require to carry out
the objectives of this section.
(B) Entry and inspection
Whenever required to carry out the purposes of this section, the Administrator, the
Secretary of Transportation, or the Secretary of the Department in which the Coast
Guard is operating or an authorized rep-

§ 1321

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

resentative of the Administrator or Secretary, upon presentation of appropriate credentials, may—
(i) enter and inspect any facility to
which this section applies, including any
facility at which any records are required
to be maintained under subparagraph (A);
and
(ii) at reasonable times, have access to
and copy any records, take samples, and
inspect any monitoring equipment or
methods required under subparagraph (A).
(C) Arrests and execution of warrants
Anyone authorized by the Administrator
or the Secretary of the department in which
the Coast Guard is operating to enforce the
provisions of this section with respect to any
facility may—
(i) with or without a warrant, arrest any
person who violates the provisions of this
section or any regulation issued thereunder in the presence or view of the person
so authorized; and
(ii) execute any warrant or process issued by an officer or court of competent
jurisdiction.
(D) Public access
Any records, reports, or information obtained under this paragraph shall be subject
to the same public access and disclosure requirements which are applicable to records,
reports, and information obtained pursuant
to section 1318 of this title.
(n) Jurisdiction
The several district courts of the United
States are invested with jurisdiction for any actions, other than actions pursuant to subsection
(i)(1) of this section, arising under this section.
In the case of Guam and the Trust Territory of
the Pacific Islands, such actions may be brought
in the district court of Guam, and in the case of
the Virgin Islands such actions may be brought
in the district court of the Virgin Islands. In the
case of American Samoa and the Trust Territory of the Pacific Islands, such actions may be
brought in the District Court of the United
States for the District of Hawaii and such court
shall have jurisdiction of such actions. In the
case of the Canal Zone, such actions may be
brought in the United States District Court for
the District of the Canal Zone.
(o) Obligation for damages unaffected; local authority not preempted; existing Federal authority not modified or affected
(1) Nothing in this section shall affect or modify in any way the obligations of any owner or
operator of any vessel, or of any owner or operator of any onshore facility or offshore facility to
any person or agency under any provision of law
for damages to any publicly owned or privately
owned property resulting from a discharge of
any oil or hazardous substance or from the removal of any such oil or hazardous substance.
(2) Nothing in this section shall be construed
as preempting any State or political subdivision
thereof from imposing any requirement or liability with respect to the discharge of oil or
hazardous substance into any waters within

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such State, or with respect to any removal activities related to such discharge.
(3) Nothing in this section shall be construed
as affecting or modifying any other existing authority of any Federal department, agency, or
instrumentality, relative to onshore or offshore
facilities under this chapter or any other provision of law, or to affect any State or local law
not in conflict with this section.
(p) Repealed. Pub. L. 101–380, title II, § 2002(b)(4),
Aug. 18, 1990, 104 Stat. 507
(q) Establishment of maximum limit of liability
with respect to onshore or offshore facilities
The President is authorized to establish, with
respect to any class or category of onshore or
offshore facilities, a maximum limit of liability
under subsections (f)(2) and (3) of this section of
less than $50,000,000, but not less than $8,000,000.
(r) Liability limitations not to limit liability
under other legislation
Nothing in this section shall be construed to
impose, or authorize the imposition of, any limitation on liability under the Outer Continental
Shelf Lands Act [43 U.S.C. 1331 et seq.] or the
Deepwater Port Act of 1974 [33 U.S.C. 1501 et
seq.].
(s) Oil Spill Liability Trust Fund
The Oil Spill Liability Trust Fund established
under section 9509 of title 26 shall be available to
carry out subsections (b), (c), (d), (j), and (l) of
this section as those subsections apply to discharges, and substantial threats of discharges,
of oil. Any amounts received by the United
States under this section shall be deposited in
the Oil Spill Liability Trust Fund.
(June 30, 1948, ch. 758, title III, § 311, as added
Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 862;
amended Pub. L. 93–207, § 1(4), Dec. 28, 1973, 87
Stat. 906; Pub. L. 95–217, §§ 57, 58(a)–(g), (i),
(k)–(m), Dec. 27, 1977, 91 Stat. 1593–1596; Pub. L.
95–576, § 1(b), Nov. 2, 1978, 92 Stat. 2467; Pub. L.
96–478, § 13(b), Oct. 21, 1980, 94 Stat. 2303; Pub. L.
96–483, § 8, Oct. 21, 1980, 94 Stat. 2362; Pub. L.
96–561, title II, § 238(b), Dec. 22, 1980, 94 Stat. 3300;
Pub. L. 97–164, title I, § 161(5), Apr. 2, 1982, 96
Stat. 49; Pub. L. 100–4, title V, § 502(b), Feb. 4,
1987, 101 Stat. 75; Pub. L. 101–380, title II,
§ 2002(b), title IV, §§ 4201(a), (b), (b)[(c)], 4202(a),
(c), 4204, 4301(a), (b), 4305, 4306, Aug. 18, 1990, 104
Stat. 507, 523–527, 532, 533, 540, 541; Pub. L.
102–388, title III, § 349, Oct. 6, 1992, 106 Stat. 1554;
Pub. L. 102–572, title IX, § 902(b)(1), Oct. 29, 1992,
106 Stat. 4516; Pub. L. 104–208, div. A, title I,
§ 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat.
3009, 3009–41; Pub. L. 104–324, title XI, §§ 1143, 1144,
Oct. 19, 1996, 110 Stat. 3992; Pub. L. 105–383, title
IV, § 411, Nov. 13, 1998, 112 Stat. 3432; Pub. L.
108–293, title VII, § 701(a), (b), (d), Aug. 9, 2004, 118
Stat. 1067, 1068; Pub. L. 109–241, title VI, § 608,
title IX, § 901(i), July 11, 2006, 120 Stat. 558, 564;
Pub. L. 112–90, § 10, Jan. 3, 2012, 125 Stat. 1912.)
REFERENCES IN TEXT
The Outer Continental Shelf Lands Act, referred to in
subsecs. (b)(1), (2)(A), (3) and (r), is act Aug. 7, 1953, ch.
345, 67 Stat. 462, as amended, which is classified generally to subchapter III (§ 1331 et seq.) of chapter 29 of
Title 43, Public Lands. For complete classification of

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

this Act to the Code, see Short Title note set out under
section 1331 of Title 43 and Tables.
The Deepwater Port Act of 1974, referred to in subsecs. (b)(1), (2)(A), (3) and (r), is Pub. L. 93–627, Jan. 3,
1975, 88 Stat. 2126, as amended, which is classified generally to chapter 29 (§ 1501 et seq.) of this title. For
complete classification of this Act to the Code, see
Short Title note set out under section 1501 of this title
and Tables.
The Magnuson-Stevens Fishery Conservation and
Management Act, referred to in subsec. (b)(1), (2)(A),
(3), is Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as
amended, which is classified principally to chapter 38
(§ 1801 et seq.) of Title 16, Conservation. For complete
classification of this Act to the Code, see Short Title
note set out under section 1801 of Title 16 and Tables.
The date of enactment of this paragraph, referred to
in subsec. (b)(2)(B), probably means the date of enactment of Pub. L. 95–576, which amended subsec. (b)(2)(B)
and which was approved Nov. 2, 1978.
The penalty enacted in subclause (bb) of clause (iii) of
subparagraph (B) of subsection (b)(2) of section 311 of
Public Law 92–500, referred to in subsec. (b)(2)(B), probably means the penalty provision of subsec.
(b)(2)(B)(iii)(bb) of this section as added by Pub. L.
92–500, § 2, Oct. 18, 1972, 86 Stat. 864, prior to the amendment to subsec. (b)(2)(B) by section 1(b)(3) of Pub. L.
95–576. Prior to amendment, subsec. (b)(2)(B)(iii)(bb)
read as follows: ‘‘a penalty determined by the number
of units discharged multiplied by the amount established for such unit under clause (iv) of this subparagraph, but such penalty shall not be more than
$5,000,000 in the case of a discharge from a vessel and
$500,000 in the case of a discharge from an onshore or
offshore facility.’’
Section 4367 of the Revised Statutes of the United
States (46 U.S.C. App. 313), referred to in subsec.
(b)(12)(B), was repealed by Pub. L. 103–182, title VI,
§ 690(a)(21), Dec. 8, 1993, 107 Stat. 2223.
Section 1443 of title 19, referred to in subsec.
(b)(12)(C), was repealed by Pub. L. 103–182, title VI,
§ 690(b)(6), Dec. 8, 1993, 107 Stat. 2223.
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, referred to in subsec. (c)(4)(B)(ii), is Pub. L. 96–510, Dec. 11, 1980, 94 Stat.
2767, as amended, which is classified principally to
chapter 103 (§ 9601 et seq.) of Title 42, The Public Health
and Welfare. For complete classification of this Act to
the Code, see Short Title note set out under section
9601 of Title 42 and Tables.
The Oil Pollution Act of 1990, referred to in subsecs.
(c)(5)(B), (d)(2)(H), and (j)(5)(H), is Pub. L. 101–380, Aug.
18, 1990, 104 Stat. 484, which is classified principally to
chapter 40 (§ 2701 et seq.) of this title. Title I of the Act
is classified generally to subchapter I (§ 2701 et seq.) of
chapter 40 of this title. For complete classification of
this Act to the Code, see Short Title note set out under
section 2701 of this title and Tables.
Par. (3) of section 1901(a) of this title, referred to in
subsec. (j)(5)(B), was redesignated par. (4) by Pub. L.
110–280, § 3(1), July 21, 2008, 122 Stat. 2611.
CODIFICATION
In subsec. (b)(12)(A), ‘‘section 60105 of title 46’’ substituted for ‘‘section 4197 of the Revised Statutes of the
United States (46 App. U.S.C. 91)’’ on authority of Pub.
L. 109–304, § 18(c), Oct. 6, 2006, 120 Stat. 1709, which Act
enacted section 60105 of Title 46, Shipping.
AMENDMENTS
2012—Subsec. (b)(6)(A). Pub. L. 112–90, § 10(b), substituted ‘‘operating, the Secretary of Transportation,
or’’ for ‘‘operating or’’ in concluding provisions.
Subsec. (m)(2)(A), (B). Pub. L. 112–90, § 10(a), which directed amendment of subpars. (A) and (B) by substituting ‘‘Administrator, the Secretary of Transportation,
or’’ for ‘‘Administrator or’’ was executed by making
the substitution the first place appearing in each subpar., to reflect the probable intent of Congress.

§ 1321

2006—Subsec. (a)(26). Pub. L. 109–241, § 608, amended
par. (26) generally. Prior to amendment, par. (26) read
as follows: ‘‘ ‘nontank vessel’ means a self-propelled
vessel of 400 gross tons as measured under section 14302
of title 46 or greater, other than a tank vessel, that carries oil of any kind as fuel for main propulsion and
that—
‘‘(A) is a vessel of the United States; or
‘‘(B) operates on the navigable waters of the United
States.’’
Subsec. (j)(5)(A)(ii), (B), (F), and (G). Pub. L. 109–241,
§ 901(i)(1), substituted ‘‘nontank’’ for ‘‘non-tank’’ wherever appearing.
Subsec. (j)(5)(H). Pub. L. 109–241, § 901(i)(2), amended
directory language of Pub. L. 108–293, § 701(b)(9). See
2004 Amendment note below.
2004—Subsec. (a)(26). Pub. L. 108–293, § 701(a), added
par. (26).
Subsec. (j)(5). Pub. L. 108–293, § 701(b)(1), inserted
‘‘, nontank vessel,’’ after ‘‘vessel’’ in heading.
Subsec. (j)(5)(A). Pub. L. 108–293, § 701(b)(2), (d)(3), designated existing text as cl. (i), substituted ‘‘subparagraph (C)’’ for ‘‘subparagraph (B)’’, and added cl. (ii).
Subsec. (j)(5)(B). Pub. L. 108–293, § 701(d)(2), added subpar. (B). Former subpar. (B) redesignated (C).
Pub. L. 108–293, § 701(b)(3), (4), inserted ‘‘, nontank
vessels,’’ after ‘‘vessels’’ in introductory provisions,
added cl. (ii), and redesignated former cls. (ii) and (iii)
as (iii) and (iv), respectively.
Subsec. (j)(5)(C). Pub. L. 108–293, § 701(d)(1), (4), redesignated subpar. (B) as (C) and substituted ‘‘subparagraphs (A) and (B)’’ for ‘‘subparagraph (A)’’ in introductory provisions. Former subpar. (C) redesignated (D).
Subsec. (j)(5)(D). Pub. L. 108–293, § 701(d)(1), redesignated subpar. (C) as (D). Former subpar (D) redesignated (E).
Pub. L. 108–293, § 701(b)(5), inserted ‘‘, nontank vessel,’’ after ‘‘vessel’’ in introductory provisions and
added cl. (v).
Subsec. (j)(5)(E). Pub. L. 108–293, § 701(d)(1), redesignated subpar. (D) as (E). Former subpar. (E) redesignated (F).
Pub. L. 108–293, § 701(b)(6), inserted ‘‘non-tank vessel,’’
after ‘‘vessel,’’ in two places.
Subsec. (j)(5)(F). Pub. L. 108–293, § 701(d)(1), (5), redesignated subpar. (E) as (F) and substituted ‘‘subparagraph (E),’’ for ‘‘subparagraph (D),’’ in cl. (i). Former
subpar. (F) redesignated (G).
Pub. L. 108–293, § 701(b)(7), inserted ‘‘non-tank vessel,’’
after ‘‘vessel,’’ and substituted ‘‘vessel, non-tank vessel, or’’ for ‘‘vessel or’’.
Subsec. (j)(5)(G). Pub. L. 108–293, § 701(d)(1), redesignated subpar. (F) as (G). Former subpar. (G) redesignated (H).
Pub. L. 108–293, § 701(b)(8), inserted ‘‘nontank vessel,’’
after ‘‘vessel,’’.
Subsec. (j)(5)(H). Pub. L. 108–293, § 701(d)(1), redesignated subpar. (G) as (H). Former subpar. (H) redesignated (I).
Pub. L. 108–293, § 701(b)(9), as amended by Pub. L.
109–241, § 901(i)(2), inserted ‘‘and nontank vessel’’ after
‘‘each tank vessel’’.
Subsec. (j)(5)(I). Pub. L. 108–293, § 701(d)(1), redesignated subpar. (H) as (I).
Subsec. (j)(6). Pub. L. 108–293, § 701(b)(10), substituted
‘‘The President may require—’’ for ‘‘Not later than 2
years after August 18, 1990, the President shall require—’’ in introductory provisions.
Subsec. (j)(6)(B). Pub. L. 108–293, § 701(b)(11), inserted
‘‘, and nontank vessels carrying oil of any kind as fuel
for main propulsion,’’ after ‘‘cargo’’.
Subsec. (j)(7). Pub. L. 108–293, § 701(b)(12), inserted
‘‘, nontank vessel,’’ after ‘‘vessel’’.
1998—Subsec. (a)(2). Pub. L. 105–383, § 411(b), substituted ‘‘, (C)’’ for ‘‘and (C)’’ and inserted ‘‘, and (D)
discharges incidental to mechanical removal authorized by the President under subsection (c) of this section’’ before semicolon at end.
Subsec. (a)(8). Pub. L. 105–383, § 411(a)(1), substituted
‘‘to prevent, minimize, or mitigate damage’’ for ‘‘to
minimize or mitigate damage’’.

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

Subsec. (a)(25). Pub. L. 105–383, § 411(a)(2), added par.
(25).
Subsec. (c)(4)(A). Pub. L. 105–383, § 411(a)(3), inserted
‘‘relating to a discharge or a substantial threat of a discharge of oil or a hazardous substance’’ before period at
end.
1996—Subsec. (b)(1), (2)(A), (3). Pub. L. 104–208 substituted ‘‘Magnuson-Stevens Fishery’’ for ‘‘Magnuson
Fishery’’ wherever appearing.
Subsec. (c)(3)(B). Pub. L. 104–324, § 1144, inserted
‘‘, except that the owner or operator may deviate from
the applicable response plan if the President or the
Federal On-Scene Coordinator determines that deviation from the response plan would provide for a more
expeditious or effective response to the spill or mitigation of its environmental effects’’ before period at end.
Subsec. (j)(2)(A). Pub. L. 104–324, § 1143(1), inserted
‘‘and of information regarding previous spills, including data from universities, research institutions, State
governments, and other nations, as appropriate, which
shall be disseminated as appropriate to response groups
and area committees, and’’ after ‘‘paragraph (4),’’.
Subsec. (j)(4)(C)(v). Pub. L. 104–324, § 1143(2), inserted
‘‘compile a list of local scientists, both inside and outside Federal Government service, with expertise in the
environmental effects of spills of the types of oil typically transported in the area, who may be contacted to
provide information or, where appropriate, participate
in meetings of the scientific support team convened in
response to a spill, and’’ before ‘‘describe’’.
1992—Subsec. (b)(12). Pub. L. 102–388 added par. (12).
Subsec. (i). Pub. L. 102–572 substituted ‘‘United States
Court of Federal Claims’’ for ‘‘United States Claims
Court’’.
1990—Subsec. (a)(8). Pub. L. 101–380, § 4201(b)(1)[(c)(1)],
inserted ‘‘containment and’’ after ‘‘refers to’’.
Subsec. (a)(16). Pub. L. 101–380, § 4201(b)(2)[(c)(2)], substituted semicolon for period at end.
Subsec. (a)(17). Pub. L. 101–380, § 4201(b)(3)[(c)(3)], substituted ‘‘otherwise’’ for ‘‘Otherwise’’ and semicolon for
period at end.
Subsec.
(a)(18)
to
(24).
Pub.
L.
101–380,
§ 4201(b)(4)[(c)(4)], added pars. (18) to (24).
Subsec. (b)(4). Pub. L. 101–380, § 4204, inserted ‘‘or the
environment’’ after ‘‘the public health or welfare’’.
Subsec. (b)(5). Pub. L. 101–380, § 4301(a), inserted after
first sentence ‘‘The Federal agency shall immediately
notify the appropriate State agency of any State which
is, or may reasonably be expected to be, affected by the
discharge of oil or a hazardous substance.’’, substituted
‘‘fined in accordance with title 18, United States Code,
or imprisoned for not more than 5 years, or both’’ for
‘‘fined not more than $10,000, or imprisoned for not
more than one year, or both’’, struck out ‘‘or information obtained by the exploitation of such notification’’
before ‘‘shall not be used’’, and inserted ‘‘natural’’ before ‘‘person in any’’.
Subsec. (b)(6) to (11). Pub. L. 101–380, § 4301(b), added
pars. (6) to (11) and struck out former par. (6) which related to assessment of civil penalties, limited to $5,000
for each offense, against any owner, operator, or person
in charge of any onshore or offshore facility from which
oil or a hazardous substance was discharged in violation of par. (3).
Subsec. (c). Pub. L. 101–380, § 4201(a), amended subsec.
(c) generally, substituting present provisions for provisions authorizing President to arrange for removal of
discharge of oil or a hazardous substance into or upon
the navigable waters of the U.S., unless he determined
such removal would be properly conducted by owner or
operator of the vessel causing discharge, and directed
President to prepare and publish a National Contingency Plan within 60 days after October 18, 1972.
Subsec. (d). Pub. L. 101–380, § 4201(b), amended subsec.
(d) generally. Prior to amendment, subsec. (d) read as
follows: ‘‘Whenever a marine disaster in or upon the
navigable waters of the United States has created a
substantial threat of a pollution hazard to the public
health or welfare of the United States, including, but
not limited to, fish, shellfish, and wildlife and the pub-

Page 434

lic and private shorelines and beaches of the United
States, because of a discharge, or an imminent discharge, of large quantities of oil, or of a hazardous substance from a vessel the United States may (A) coordinate and direct all public and private efforts directed
at the removal or elimination of such threat; and (B)
summarily remove, and, if necessary, destroy such vessel by whatever means are available without regard to
any provisions of law governing the employment of personnel or the expenditure of appropriated funds. Any
expense incurred under this subsection or under the
Intervention on the High Seas Act (or the convention
defined in section 2(3) thereof) shall be a cost incurred
by the United States Government for the purposes of
subsection (f) of this section in the removal of oil or
hazardous substance.’’
Subsec. (e). Pub. L. 101–380, § 4306, amended subsec. (e)
generally. Prior to amendment, subsec. (e) read as follows: ‘‘In addition to any other action taken by a State
or local government, when the President determines
there is an imminent and substantial threat to the public health or welfare of the United States, including,
but not limited to, fish, shellfish, and wildlife and public and private property, shorelines, and beaches within
the United States, because of an actual or threatened
discharge of oil or hazardous substance into or upon
the navigable waters of the United States from an onshore or offshore facility, the President may require
the United States attorney of the district in which the
threat occurs to secure such relief as may be necessary
to abate such threat, and the district courts of the
United States shall have jurisdiction to grant such relief as the public interest and the equities of the case
may require.’’
Subsec. (i). Pub. L. 101–380, § 2002(b)(1), struck out par.
(1) designation before ‘‘In any case’’ and struck out
pars. (2) and (3) which read as follows:
‘‘(2) The provisions of this subsection shall not apply
in any case where liability is established pursuant to
the Outer Continental Shelf Lands Act, or the Deepwater Port Act of 1974.
‘‘(3) Any amount paid in accordance with a judgment
of the United States Claims Court pursuant to this section shall be paid from the funds established pursuant
to subsection (k) of this section.’’
Subsec. (j). Pub. L. 101–380, § 4202(a), amended heading, inserted heading for par. (1) and realigned its margin, added pars. (2) to (8), and struck out former par. (2)
which read as follows: ‘‘Any owner or operator of a vessel or an onshore facility or an offshore facility and
any other person subject to any regulation issued under
paragraph (1) of this subsection who fails or refuses to
comply with the provisions of any such regulations,
shall be liable to a civil penalty of not more than $5,000
for each such violation. This paragraph shall not apply
to any owner or operator of any vessel from which oil
or a hazardous substance is discharged in violation of
paragraph (3)(ii) of subsection (b) of this section unless
such owner, operator, or person in charge is otherwise
subject to the jurisdiction of the United States. Each
violation shall be a separate offense. The President
may assess and compromise such penalty. No penalty
shall be assessed until the owner, operator, or other
person charged shall have been given notice and an opportunity for a hearing on such charge. In determining
the amount of the penalty, or the amount agreed upon
in compromise, the gravity of the violation, and the
demonstrated good faith of the owner, operator, or
other person charged in attempting to achieve rapid
compliance, after notification of a violation, shall be
considered by the President.’’
Subsec. (k). Pub. L. 101–380, § 2002(b)(2), struck out
subsec. (k) which authorized appropriations and supplemental appropriations to create and maintain a revolving fund to carry out subsecs. (c), (d), (i), and (l) of this
section.
Subsec. (l). Pub. L. 101–380, § 2002(b)(3), struck out
after first sentence ‘‘Any moneys in the fund established by subsection (k) of this section shall be available to such Federal departments, agencies, and instru-

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

mentalities to carry out the provisions of subsections
(c) and (i) of this section.’’
Subsec. (m). Pub. L. 101–380, § 4305, amended subsec.
(m) generally. Prior to amendment, subsec. (m) read as
follows: ‘‘Anyone authorized by the President to enforce the provisions of this section may, except as to
public vessels, (A) board and inspect any vessel upon
the navigable waters of the United States or the waters
of the contiguous zone, (B) with or without a warrant
arrest any person who violates the provisions of this
section or any regulation issued thereunder in his presence or view, and (C) execute any warrant or other
process issued by an officer or court of competent jurisdiction.’’
Subsec. (o)(2). Pub. L. 101–380, § 4202(c), inserted ‘‘, or
with respect to any removal activities related to such
discharge’’ after ‘‘within such State’’.
Subsec. (p). Pub. L. 101–380, § 2002(b)(4), struck out
subsec. (p) which provided for establishment and maintenance of evidence of financial responsibility by vessels over 300 gross tons carrying oil or hazardous substances.
Subsec. (s). Pub. L. 101–380, § 2002(b)(5), added subsec.
(s).
1987—Subsec. (a)(5). Pub. L. 100–4 substituted ‘‘the
Commonwealth of the Northern Mariana Islands’’ for
‘‘the Canal Zone’’.
1982—Subsec. (i)(1), (3). Pub. L. 97–164 substituted
‘‘Claims Court’’ for ‘‘Court of Claims’’.
1980—Subsec. (b)(1), (2)(A), (3). Pub. L. 96–561 substituted ‘‘Magnuson Fishery Conservation and Management Act’’ for ‘‘Fishery Conservation and Management
Act of 1976’’.
Subsec. (b)(3)(A). Pub. L. 96–478 struck out ‘‘of oil’’
after ‘‘in the case of such discharges’’ and substituted
‘‘Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973’’
for ‘‘International Convention for the Prevention of
Pollution of the Sea by Oil, 1954, as amended’’.
Subsec. (c)(1). Pub. L. 96–561 substituted ‘‘Magnuson
Fishery Conservation and Management Act’’ for ‘‘Fishery Conservation and Management Act of 1976’’.
Subsec. (k). Pub. L. 96–483 designated existing provisions as par. (1) and added par. (2).
1978—Subsec. (a)(2). Pub. L. 95–576, § 1(b)(1), excluded
discharges described in cls. (A) to (C) from term ‘‘discharge’’.
Subsec. (a)(17). Pub. L. 95–576, § 1(b)(2), added par. (17).
Subsec. (b)(2)(B). Pub. L. 95–576, § 1(b)(3), substituted
requirement that a study be made respecting methods,
mechanisms, and procedures for creating incentives to
achieve higher standard of care in management and
movement of hazardous substances, including consideration of enumerated items, and a report made to Congress within 18 months after Nov. 2, 1978, for provisions
concerning actual removability of any designated hazardous substance, liability during two year period commencing Oct. 18, 1972 based on toxicity, degradability,
and dispersal characteristics of the substance limited
to $50,000 and without limitation in cases of willful negligence or willful misconduct, liability after such two
year period ranging from $500 to $5,000 based on toxicity, etc., or liability for penalty determined by number of units discharged multiplied by amount established for the unit limited to $5,000,000 in the case of a
discharge from a vessel and to $500,000 in the case of a
discharge from onshore or offshore facility, establishment by regulation of a unit of measurement based
upon the usual trade practice for each designated hazardous substance and establishment for such unit a
fixed monetary amount ranging from $100 to $1,000
based on toxicity, etc.
Subsec. (b)(3). Pub. L. 95–576, § 1(b)(4), substituted
‘‘such quantities as may be harmful’’ for ‘‘harmful
quantities’’.
Subsec. (b)(4). Pub. L. 95–576, § 1(b)(5), struck out ‘‘, to
be issued as soon as possible after October 18, 1972,’’
after ‘‘regulation’’ and substituted ‘‘substances’’ for
‘‘substance’’ and ‘‘discharge of which may be harmful’’
for ‘‘discharge of which, at such times, locations, circumstances, and conditions, will be harmful’’.

§ 1321

Subsec. (b)(5). Pub. L. 95–576, § 1(b)(6), inserted ‘‘at the
time of the discharge’’ after ‘‘otherwise subject to the
jurisdiction of the United States’’.
Subsec. (b)(6)(A) to (E). Pub. L. 95–576, § 1(b)(7), designated existing provisions as subpar. (A), inserted ‘‘at
the time of the discharge’’ after ‘‘jurisdiction of the
United States’’, and added subpars. (B) to (E).
1977—Subsec. (a)(11). Pub. L. 95–217, § 58(k), inserted
‘‘, and any facility of any kind which is subject to the
jurisdiction of the United States and is located in, on,
or under any other waters,’’ after ‘‘United States’’.
Subsec. (a)(15), (16). Pub. L. 95–217, § 58(d)(1), added
pars. (15) and (16).
Subsec. (b)(1). Pub. L. 95–217, § 58(a)(1), inserted reference to activities under the Outer Continental Shelf
Lands Act or the Deepwater Port Act of 1974, or which
may affect natural resources belonging to, appertaining to, or under the exclusive management authority of
the United States (including resources under the Fishery Conservation and Management Act of 1976).
Subsec. (b)(2)(A). Pub. L. 95–217, § 58(a)(2), inserted reference to activities under the Outer Continental Shelf
Lands Act or the Deepwater Port Act of 1974, or which
may affect natural resources belonging to, appertaining to, or under the exclusive management authority of
the United States (including resources under the Fishery Conservation and Management Act of 1976).
Subsec. (b)(2)(B)(v). Pub. L. 95–217, § 57, added cl. (v).
Subsec. (b)(3). Pub. L. 95–217, § 58(a)(3), (4), designated
part of existing provisions preceding cl. (A) as cl. (i)
and added cl. (ii), and, in cl. (A), inserted ‘‘or which
may affect natural resources belonging to, appertaining to, or under the exclusive management authority of
the United States (including resources under the Fishery Conservation and Management Act of 1976)’’ after
‘‘waters of the contiguous zone’’ and struck out ‘‘article IV of’’ before ‘‘the International Convention for the
Prevention of Pollution of the Sea by Oil, 1954’’.
Subsec. (b)(4). Pub. L. 95–217, § 58(a)(5), struck out provisions under which, in the case of the discharge of oil
into or upon the waters of the contiguous zone, only
those discharges which threatened the fishery resources of the contiguous zone or threatened to pollute
or contribute to the pollution of the territory or the
territorial sea of the United States could be determined
to be harmful.
Subsec. (b)(5). Pub. L. 95–217, § 58(a)(6), added cls. (A),
(B), and (C) between ‘‘Any such person’’ and ‘‘who fails
to notify’’.
Subsec. (b)(6). Pub. L. 95–217, § 58(a)(7), (8), substituted
‘‘Any owner, operator, or person in charge of any onshore facility, or offshore facility’’ for ‘‘Any owner or
operator of any vessel, onshore facility, or offshore facility’’ in provision relating to violations of par. (3) of
this subsection, and inserted provisions directing the
assessment of a civil penalty of not more than $5,000 for
each offense by the Secretary of the department in
which the Coast Guard is operating to be assessed
against any owner, operator, or person in charge of any
vessel from which oil or a hazardous substance is discharged in violation of paragraph (3)(i) of this subsection, and any owner, operator, or person in charge of
a vessel from which oil or a hazardous substance is discharged in violation of paragraph (3)(ii) who is otherwise subject to the jurisdiction of the United States.
Subsec. (c)(1). Pub. L. 95–217, § 58(b), (c)(1), inserted
‘‘or there is a substantial threat of such discharge,’’
after ‘‘Whenever any oil or a hazardous substance is
discharged,’’ and ‘‘or in connection with activities
under the Outer Continental Shelf Lands Act or the
Deepwater Port Act of 1974, or which may affect natural resources belonging to, appertaining to, or under
the exclusive management authority of the United
States (including resources under the Fishery Conservation and Management Act of 1976)’’ after ‘‘waters
of the contiguous zone,’’.
Subsec. (c)(2)(D). Pub. L. 95–217, § 58(e), substituted
‘‘and imminent threats of such discharges to the appropriate State and Federal agencies;’’ for ‘‘to the appropriate Federal agency;’’.

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Subsec. (d). Pub. L. 95–217, § 58(c)(2), inserted ‘‘or
under the Intervention on the High Seas Act (or the
convention defined in section 2(3) thereof)’’ after ‘‘Any
expense incurred under this subsection’’.
Subsec. (f)(1). Pub. L. 95–217, § 58(d)(2), substituted
‘‘, in the case of an inland oil barge $125 per gross ton
of such barge, or $125,000, whichever is greater, and in
the case of any other vessel, $150 per gross ton of such
vessel (or, for a vessel carrying oil or hazardous substances as cargo, $250,000), whichever is greater,’’ for
‘‘$100 per gross ton of such vessel or $14,000,000, whichever is lesser,’’.
Subsec. (f)(2), (3). Pub. L. 95–217, § 58(d)(5), (6), substituted ‘‘$50,000,000’’ for ‘‘$8,000,000’’.
Subsec. (f)(4), (5). Pub. L. 95–217, § 58(g), added pars. (4)
and (5).
Subsec. (g). Pub. L. 95–217, § 58(d)(3), (f), substituted
‘‘, in the case of an inland oil barge $125 per gross ton
of such barge, or $125,000, whichever is greater, and in
the case of any other vessel, $150 per gross ton of such
vessel (or, for a vessel carrying oil or hazardous substances as cargo, $250,000), whichever is greater’’ for
‘‘$100 per gross ton of such vessel or $14,000,000, whichever is the lesser’’ in the existing provisions and inserted provision under which, where the owner or operator of a vessel (other than an inland oil barge) carrying oil or hazardous substances as cargo or an onshore
or offshore facility which handles or stores oil or hazardous substances in bulk, from which oil or a hazardous substance is discharged in violation of subsec. (b) of
this section, alleges that the discharge was caused solely by an act or omission of a third party, the owner or
operator must pay to the United States Government
the actual costs incurred under subsec. (c) of this section for removal of the oil or substance and shall be entitled by subrogation to all rights of the United States
Government to recover the costs from the third party
under this subsection.
Subsec. (i)(2). Pub. L. 95–217, § 58(m), inserted reference to the Deepwater Port Act of 1974.
Subsec. (j)(2). Pub. L. 95–217, § 58(c)(3), inserted provision that subsec. (j)(2) shall not apply to any owner or
operator of any vessel from which oil or a hazardous
substance is discharged in violation of subsec. (b)(3)(ii)
of this section unless the owner, operator, or person in
charge is otherwise subject to the jurisdiction of the
United States.
Subsec. (k). Pub. L. 95–217, § 58(l), substituted ‘‘such
sums as may be necessary to maintain such fund at a
level of $35,000,000’’ for ‘‘not to exceed $35,000,000’’.
Subsec. (p)(1). Pub. L. 95–217, § 58(d)(4), substituted
‘‘, in the case of an inland oil barge $125 per gross ton
of such barge, or $125,000, whichever is greater, and in
the case of any other vessel, $150 per gross ton of such
vessel (or, for a vessel carrying oil or hazardous substances as cargo, $250,000), whichever is greater,’’ for
‘‘$100 per gross ton, or $14,000,000 whichever is the lesser,’’.
Subsecs. (q), (r). Pub. L. 95–217, § 58(i), added subsecs.
(q) and (r).
1973—Subsec. (f). Pub. L. 93–207, § 1(4)(A), (B), substituted ‘‘(b)(3)’’ for ‘‘(b)(2)’’ wherever appearing in
pars. (1) to (3), and substituted ‘‘Administrator’’ for
‘‘Secretary’’ in last sentence of par. (2).
Subsecs. (g), (i). Pub. L. 93–207, § 1(4)(C), substituted
‘‘(b)(3)’’ for ‘‘(b)(2)’’ wherever appearing.
EFFECTIVE DATE OF 2006 AMENDMENT
Pub. L. 109–241, title IX, § 901(i)(2), July 11, 2006, 120
Stat. 564, provided in part that the amendment made
by section 901(i)(2) is effective Aug. 9, 2004.
EFFECTIVE DATE OF 1996 AMENDMENT
Section 101(a) [title II, § 211(b)] of div. A of Pub. L.
104–208 provided that the amendment made by that section is effective 15 days after Oct. 11, 1996.

Page 436

under section 171 of Title 28, Judiciary and Judicial
Procedure.
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by Pub. L. 101–380 applicable to incidents
occurring after Aug. 18, 1990, see section 1020 of Pub. L.
101–380, set out as an Effective Date note under section
2701 of this title.
EFFECTIVE DATE OF 1982 AMENDMENT
Amendment by Pub. L. 97–164 effective Oct. 1, 1982,
see section 402 of Pub. L. 97–164, set out as a note under
section 171 of Title 28, Judiciary and Judicial Procedure.
EFFECTIVE DATE OF 1980 AMENDMENTS
Section 238(b) of Pub. L. 96–561 provided that the
amendment made by that section is effective 15 days
after Dec. 22, 1980.
Amendment by Pub. L. 96–478 effective Oct. 2, 1983,
see section 14(a) of Pub. L. 96–478, set out as an Effective Date note under section 1901 of this title.
EFFECTIVE DATE OF 1977 AMENDMENT
Section 58(h) of Pub. L. 95–217 provided that: ‘‘The
amendments made by paragraphs (5) and (6) of subsection (d) of this section [amending this section] shall
take effect 180 days after the date of enactment of the
Clean Water Act of 1977 [Dec. 27, 1977].’’
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and
assets of the Coast Guard, including the authorities
and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections
468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set
out as a note under section 542 of Title 6.
Enforcement functions of Administrator or other official of the Environmental Protection Agency under
this section relating to spill prevention, containment
and countermeasure plans with respect to pre-construction, construction, and initial operation of transportation system for Canadian and Alaskan natural gas
were transferred to the Federal Inspector, Office of
Federal Inspector for the Alaska Natural Gas Transportation System, until the first anniversary of the date of
initial operation of the Alaska Natural Gas Transportation System, see Reorg. Plan No. 1 of 1979, §§ 102(a),
203(a), 44 F.R. 33663, 33666, 93 Stat. 1373, 1376, effective
July 1, 1979, set out in the Appendix to Title 5, Government Organization and Employees. Office of Federal Inspector for the Alaska Natural Gas Transportation System abolished and functions and authority vested in Inspector transferred to Secretary of Energy by section
3012(b) of Pub. L. 102–486, set out as an Abolition of Office of Federal Inspector note under section 719e of
Title 15, Commerce and Trade. Functions and authority
vested in Secretary of Energy subsequently transferred
to Federal Coordinator for Alaska Natural Gas Transportation Projects by section 720d(f) of Title 15.
DELEGATION OF FUNCTIONS
For delegation of certain functions of President
under this section, see Ex. Ord. No. 12580, Jan. 23, 1987,
52 F.R. 2923, as amended, set out as a note under section
9615 of Title 42, The Public Health and Welfare.
TERMINATION OF TRUST TERRITORY OF THE PACIFIC
ISLANDS
For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title
48, Territories and Insular Possessions.

EFFECTIVE DATE OF 1992 AMENDMENT

TERMINATION OF UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF THE CANAL ZONE

Amendment by Pub. L. 102–572 effective Oct. 29, 1992,
see section 911 of Pub. L. 102–572, set out as a note

For termination of the United States District Court
for the District of the Canal Zone at end of the ‘‘transi-

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tion period’’, being the 30-month period beginning Oct.
1, 1979, and ending midnight Mar. 31, 1982, see Paragraph 5 of Article XI of the Panama Canal Treaty of
1977 and sections 2101 and 2201 to 2203 of Pub. L. 96–70,
title II, Sept. 27, 1979, 93 Stat. 493, formerly classified to
sections 3831 and 3841 to 3843, respectively, of Title 22,
Foreign Relations and Intercourse.
RULEMAKINGS
Pub. L. 111–281, title VII, § 701(a), (b), Oct. 15, 2010, 124
Stat. 2980, provided that:
‘‘(a) STATUS REPORT.—
‘‘(1) IN GENERAL.—Not later than 90 days after the
date of enactment of this Act [Oct. 15, 2010], the Secretary of the department in which the Coast Guard is
operating shall provide a report to the Senate Committee on Commerce, Science, and Transportation
and the House of Representatives Committee on
Transportation and Infrastructure on the status of all
Coast Guard rulemakings required or otherwise being
developed (but for which no final rule has been issued
as of the date of enactment of this Act) under section
311 of the Federal Water Pollution Control Act (33
U.S.C. 1321).
‘‘(2) INFORMATION REQUIRED.—The Secretary shall
include in the report required in paragraph (1)—
‘‘(A) a detailed explanation with respect to each
such rulemaking as to—
‘‘(i) what steps have been completed;
‘‘(ii) what areas remain to be addressed; and
‘‘(iii) the cause of any delays; and
‘‘(B) the date by which a final rule may reasonably be expected to be issued.
‘‘(b) FINAL RULES.—The Secretary shall issue a final
rule in each pending rulemaking described in subsection (a) as soon as practicable, but in no event later
than 18 months after the date of enactment of this
Act.’’
IMPLEMENTATION DATE FOR VESSEL RESPONSE PLANS
FOR NONTANK VESSELS
Pub. L. 108–293, title VII, § 701(c), Aug. 9, 2004, 118
Stat. 1068, provided that: ‘‘No later than one year after
the date of enactment of this Act [Aug. 9, 2004], the
owner or operator of a nontank vessel (as defined [sic]
section 311(j)(9) [311(a)(26)] of the Federal Water Pollution Control Act (33 U.S.C. 1321(j)(9) [1321(a)(26)], as
amended by this section) shall prepare and submit a
vessel response plan for such vessel.’’
REPORT ON OIL SPILL RESPONDER IMMUNITY
Pub. L. 107–295, title IV, § 440, Nov. 25, 2002, 116 Stat.
2130, provided that:
‘‘(a) REPORT TO CONGRESS.—Not later than January 1,
2004, the Secretary of the department in which the
Coast Guard is operating, jointly with the Secretary of
Commerce and the Secretary of the Interior, and after
consultation with the Administrator of the Environmental Protection Agency and the Attorney General,
shall submit a report to the Committee on Commerce,
Science, and Transportation of the Senate and the
Committee on Transportation and Infrastructure of the
House of Representatives on the immunity from criminal and civil penalties provided under existing law of a
private responder (other than a responsible party) in
the case of the incidental take of federally listed fish
or wildlife that results from, but is not the purpose of,
carrying out an otherwise lawful activity conducted by
that responder during an oil spill removal activity
where the responder was acting in a manner consistent
with the National Contingency Plan or as otherwise directed by the Federal On-Scene Coordinator for the
spill, and on the circumstances under which such penalties have been or could be imposed on a private responder. The report shall take into consideration the
procedures under the Inter-Agency Memorandum for
addressing incidental takes.
‘‘(b) DEFINITIONS.—In this section—
‘‘(1) the term ‘Federal On-Scene Coordinator’ has
the meaning given that term in section 311 of the
Federal Water Pollution Control Act (33 U.S.C. 1321);

§ 1321

‘‘(2) the term ‘incidental take’ has the meaning
given that term in the Inter-Agency Memorandum;
‘‘(3) the term ‘Inter-Agency Memorandum’ means
the Inter-Agency Memorandum of Agreement Regarding Oil Spill Planning and Response Activities
under the Federal Water Pollution Control Act’s National Oil and Hazardous Substances Pollution Contingency Plan and the Endangered Species Act [of
1973, 16 U.S.C. 1531 et seq.], effective on July 22, 2001;
‘‘(4) the terms ‘National Contingency Plan’, ‘removal’, and ‘responsible party’ have the meanings
given those terms under section 1001 of the Oil Pollution Act of 1990 (33 U.S.C. 2701); and
‘‘(5) the term ‘private responder’ means a nongovernmental entity or individual that is carrying
out an oil spill removal activity at the direction of a
Federal agency or a responsible party.’’
OIL SPILL LIABILITY UNDER OIL POLLUTION ACT OF
1990
Section 2002(a) of Pub. L. 101–380 provided that: ‘‘Subsections (f), (g), (h), and (i) of section 311 of the Federal
Water Pollution Control Act (33 U.S.C. 1321) shall not
apply with respect to any incident for which liability is
established under section 1002 of this Act [33 U.S.C.
2702].’’
TRANSFER OF MONEYS TO OIL SPILL LIABILITY TRUST
FUND
Section 2002(b)(2) of Pub. L. 101–380 provided that:
‘‘Subsection (k) [of this section] is repealed. Any
amounts remaining in the revolving fund established
under that subsection shall be deposited in the [Oil
Spill Liability Trust] Fund. The Fund shall assume all
liability incurred by the revolving fund established
under that subsection.’’
REVISION OF NATIONAL CONTINGENCY PLAN
Section 4201(c)[(d)] of Pub. L. 101–380 provided that:
‘‘Not later than one year after the date of the enactment of this Act [Aug. 18, 1990], the President shall revise and republish the National Contingency Plan prepared under section 311(c)(2) of the Federal Water Pollution Control Act [33 U.S.C. 1321(c)(2)] (as in effect immediately before the date of the enactment of this Act)
to implement the amendments made by this section
and section 4202 [amending this section].’’
[For delegation of functions of President under section 4201(c) of Pub. L. 101–380, set out above, see Ex.
Ord. No. 12580, Jan. 23, 1987, 52 F.R. 2923, as amended,
set out as a note under section 9615 of Title 42, The
Public Health and Welfare.]
IMPLEMENTATION OF NATIONAL PLANNING AND
RESPONSE SYSTEM
Section 4202(b) of Pub. L. 101–380 provided that:
‘‘(1) AREA COMMITTEES AND CONTINGENCY PLANS.—(A)
Not later than 6 months after the date of the enactment of this Act [Aug. 18, 1990], the President shall designate the areas for which Area Committees are established under section 311(j)(4) of the Federal Water Pollution Control Act [33 U.S.C. 1321(j)(4)], as amended by
this Act. In designating such areas, the President shall
ensure that all navigable waters, adjoining shorelines,
and waters of the exclusive economic zone are subject
to an Area Contingency Plan under that section.
‘‘(B) Not later than 18 months after the date of the
enactment of this Act, each Area Committee established under that section shall submit to the President
the Area Contingency Plan required under that section.
‘‘(C) Not later than 24 months after the date of the
enactment of this Act, the President shall—
‘‘(i) promptly review each plan;
‘‘(ii) require amendments to any plan that does not
meet the requirements of section 311(j)(4) of the Federal Water Pollution Control Act; and
‘‘(iii) approve each plan that meets the requirements of that section.
‘‘(2) NATIONAL RESPONSE UNIT.—Not later than one
year after the date of the enactment of this Act, the

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

Secretary of the department in which the Coast Guard
is operating shall establish a National Response Unit in
accordance with section 311(j)(2) of the Federal Water
Pollution Control Act, as amended by this Act.
‘‘(3) COAST GUARD DISTRICT RESPONSE GROUPS.—Not
later than 1 year after the date of the enactment of this
Act, the Secretary of the department in which the
Coast Guard is operating shall establish Coast Guard
District Response Groups in accordance with section
311(j)(3) of the Federal Water Pollution Control Act, as
amended by this Act.
‘‘(4) TANK VESSEL AND FACILITY RESPONSE PLANS;
TRANSITION PROVISION; EFFECTIVE DATE OF PROHIBITION.—(A) Not later than 24 months after the date of
the enactment of this Act, the President shall issue
regulations for tank vessel and facility response plans
under section 311(j)(5) of the Federal Water Pollution
Control Act, as amended by this Act.
‘‘(B) During the period beginning 30 months after the
date of the enactment of this paragraph [Aug. 18, 1990]
and ending 36 months after that date of enactment, a
tank vessel or facility for which a response plan is required to be prepared under section 311(j)(5) of the Federal Water Pollution Control Act, as amended by this
Act, may not handle, store, or transport oil unless the
owner or operator thereof has submitted such a plan to
the President.
‘‘(C) Subparagraph (E) of section 311(j)(5) of the Federal Water Pollution Control Act, as amended by this
Act, shall take effect 36 months after the date of the
enactment of this Act.’’
DEPOSIT OF CERTAIN PENALTIES INTO OIL SPILL
LIABILITY TRUST FUND
Penalties paid pursuant to this section and sections
1319(c) and 1501 et seq. of this title to be deposited in
the Oil Spill Liability Trust Fund created under section 9509 of Title 26, Internal Revenue Code, see section
4304 of Pub. L. 101–380, set out as a note under section
9509 of Title 26.
ALLOWABLE DELAY IN ESTABLISHING FINANCIAL RESPONSIBILITY FOR INCREASE IN AMOUNTS UNDER 1977
AMENDMENT
Section 58(j) of Pub. L. 95–217 provided that: ‘‘No vessel subject to the increased amounts which result from
the amendments made by subsections (d)(2), (d)(3), and
(d)(4) of this section [amending this section] shall be required to establish any evidence of financial responsibility under section 311(p) of the Federal Water Pollution Control Act [subsec. (p) of this section] for such increased amounts before October 1, 1978.’’
TERRITORIAL SEA AND CONTIGUOUS ZONE OF UNITED
STATES
For extension of territorial sea and contiguous zone
of United States, see Proc. No. 5928 and Proc. No. 7219,
respectively, set out as notes under section 1331 of Title
43, Public Lands.
EXECUTIVE ORDER NO. 11735
Ex. Ord. No. 11735, Aug. 3, 1973, 38 F.R. 21243, as
amended by Ex. Ord. No. 12418, May 5, 1983, 48 F.R.
20891, which assigned functions of the President regarding water pollution, was revoked by Ex. Ord. No. 12777,
§ 8(i), Oct. 18, 1991, 56 F.R. 54769, set out below.
EXECUTIVE ORDER NO. 12418
Ex. Ord. No. 12418, May 5, 1983, 48 F.R. 20891, which
transferred certain functions relating to the financial
responsibility of vessels for water pollution and established authority of Federal agencies to respond to discharges or substantial threats of discharges of oil and
hazardous substances, was revoked by Ex. Ord. No.
12777, § 8(i), Oct. 18, 1991, 56 F.R. 54769, set out below.
EX. ORD. NO. 12777. IMPLEMENTATION OF THIS SECTION
AND OIL POLLUTION ACT OF 1990
Ex. Ord. No. 12777, Oct. 18, 1991, 56 F.R. 54757, as
amended by Ex. Ord. No. 13286, § 34, Feb. 28, 2003, 68 F.R.
10625, provided:

Page 438

By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including Section 311 of the Federal Water
Pollution Control Act, (‘‘FWPCA’’) (33 U.S.C. 1321), as
amended by the Oil Pollution Act of 1990 (Public Law
101–380) (‘‘OPA’’), and by Section 301 of Title 3 of the
United States Code, it is hereby ordered as follows:
SECTION 1. National Contingency Plan, Area Committees,
and Area Contingency Plans. (a) Section 1 of Executive
Order No. 12580 of January 23, 1987 [42 U.S.C. 9615 note],
is amended to read as follows:
‘‘SECTION 1. National Contingency Plan. (a)(1) The National Contingency Plan (‘‘the NCP’’), shall provide for
a National Response Team (‘‘the NRT’’) composed of
representatives of appropriate Federal departments and
agencies for national planning and coordination of preparedness and response actions, and Regional Response
Teams as the regional counterparts to the NRT for
planning and coordination of regional preparedness and
response actions.
‘‘(2) The following agencies (in addition to other appropriate agencies) shall provide representatives to the
National and Regional Response Teams to carry out
their responsibilities under the NCP: Department of
State, Department of Defense, Department of Justice,
Department of the Interior, Department of Agriculture,
Department of Commerce, Department of Labor, Department of Health and Human Services, Department
of Transportation, Department of Energy, Environmental Protection Agency, Federal Emergency Management Agency, United States Coast Guard, and the
Nuclear Regulatory Commission.
‘‘(3) Except for periods of activation because of response action, the representative of the Environmental
Protection Agency (‘‘EPA’’) shall be the chairman, and
the representative of the United States Coast Guard
shall be the vice chairman, of the NRT and these agencies’ representatives shall be co-chairs of the Regional
Response Teams (‘‘the RRTs’’). When the NRT or an
RRT is activated for a response action, the EPA representative shall be the chairman when the release or
threatened release or discharge or threatened discharge
occurs in the inland zone, and the United States Coast
Guard representative shall be the chairman when the
release or threatened release or discharge or threatened discharge occurs in the coastal zone, unless otherwise agreed upon by the EPA and the United States
Coast Guard representatives (inland and coastal zones
are defined in the NCP).
‘‘(4) The RRTs may include representatives from
State governments, local governments (as agreed upon
by the States), and Indian tribal governments. Subject
to the functions and authorities delegated to Executive
departments and agencies in other sections of this
order, the NRT shall provide policy and program direction to the RRTs.
‘‘(b)(1) The responsibility for the revision of the NCP
and all the other functions vested in the President by
Sections 105(a), (b), (c), and (g), 125, and 301(f) of the
Act, by Section 311(d)(1) of the Federal Water Pollution
Control Act, and by Section 4201(c) of the Oil Pollution
Act of 1990 is delegated to the Administrator of the Environmental Protection Agency (‘‘the Administrator’’).
‘‘(2) The function vested in the President by Section
118(p) of the Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99–499) (‘‘SARA’’) is delegated
to the Administrator.
‘‘(c) In accord with Section 107(f)(2)(A) of the Act,
Section 311(f)(5) of the Federal Water Pollution Control
Act, as amended (33 U.S.C. 1321(f)(5)), and Section
1006(b)(1) and (2) of the Oil Pollution Act of 1990, the
following shall be among those designated in the NCP
as Federal trustees for natural resources:
[‘‘](1) Secretary of Defense;
[‘‘](2) Secretary of the Interior;
[‘‘](3) Secretary of Agriculture;
[‘‘](4) Secretary of Commerce;
[‘‘](5) Secretary of Energy.
[‘‘]In the event of a spill, the above named Federal
trustees for natural resources shall designate one trust-

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

ee to act as Lead Administrative Trustee, the duties of
which shall be defined in the regulations promulgated
pursuant to Section 1006(e)(1) of OPA. If there are natural resource trustees other than those designated above
which are acting in the event of a spill, those other
trustees may join with the Federal trustees to name a
Lead Administrative Trustee which shall exercise the
duties defined in the regulations promulgated pursuant
to Section 1006(e)(1) of OPA.
‘‘(d) Revisions to the NCP shall be made in consultation with members of the NRT prior to publication for
notice and comment.
‘‘(e) All revisions to the NCP, whether in proposed or
final form, shall be subject to review and approval by
the Director of the Office of Management and Budget
(‘‘OMB’’).’’
(b) The functions vested in the President by Section
311(j)(4) of FWPCA, and Section 4202(b)(1) of OPA [set
out as a note above], respecting the designation of
Areas, the appointment of Area Committee members,
the requiring of information to be included in Area
Contingency Plans, and the review and approval of
Area Contingency Plans are delegated to the Administrator of the Environmental Protection Agency (‘‘Administrator’’) for the inland zone and the Secretary of
the Department in which the Coast Guard is operating
for the coastal zone (inland and coastal zones are defined in the NCP).
SEC. 2. National Response System. (a) The functions
vested in the President by Section 311(j)(1)(A) of
FWPCA, respecting the establishment of methods and
procedures for the removal of discharged oil and hazardous substances, and by Section 311(j)(1)(B) of
FWPCA respecting the establishment of criteria for the
development and implementation of local and regional
oil and hazardous substance removal contingency
plans, are delegated to the Administrator for the inland
zone and the Secretary of the Department in which the
Coast Guard is operating for the coastal zone.
(b)(1) The functions vested in the President by Section 311(j)(1)(C) of FWPCA, respecting the establishment of procedures, methods, and equipment and other
requirements for equipment to prevent and to contain
discharges of oil and hazardous substances from nontransportation-related onshore facilities, are delegated
to the Administrator.
(2) The functions vested in the President by Section
311(j)(1)(C) of FWPCA, respecting the establishment of
procedures, methods, and equipment and other requirements for equipment to prevent and to contain discharges of oil and hazardous substances from vessels
and transportation-related onshore facilities and deepwater ports subject to the Deepwater Ports [Port] Act
of 1974 (‘‘DPA’’) [33 U.S.C. 1501 et seq.], are delegated to
the Secretary of Transportation and the Secretary of
the Department in which the Coast Guard is operating.
(3) The functions vested in the President by Section
311(j)(1)(C) of FWPCA, respecting the establishment of
procedures, methods, and equipment and other requirements for equipment to prevent and to contain discharges of oil and hazardous substances from offshore
facilities, including associated pipelines, other than
deepwater ports subject to the DPA, are delegated to
the Secretary of the Interior.
(c) The functions vested in the President by Section
311(j)(1)(D) of FWPCA, respecting the inspection of vessels carrying cargoes of oil and hazardous substances
and the inspection of such cargoes, are delegated to the
Secretary of the Department in which the Coast Guard
is operating.
(d)(1) The functions vested in the President by Section 311(j)(5) of FWPCA and Section 4202(b)(4) of OPA
[set out as a note above], respecting the issuance of
regulations requiring the owners or operators of nontransportation-related onshore facilities to prepare and
submit response plans, the approval of means to ensure
the availability of private personnel and equipment,
the review and approval of such response plans, and the
authorization of non-transportation-related onshore facilities to operate without approved response plans, are
delegated to the Administrator.

§ 1321

(2) The functions vested in the President by Section
311(j)(5) of FWPCA and Section 4202(b)(4) of OPA, respecting the issuance of regulations requiring the owners or operators of tank vessels, transportation-related
onshore facilities and deepwater ports subject to the
DPA, to prepare and submit response plans, the approval of means to ensure the availability of private
personnel and equipment, the review and approval of
such response plans, and the authorization of tank vessels, transportation-related onshore facilities and deepwater ports subject to the DPA to operate without approved response plans, are delegated to the Secretary of
Transportation and the Secretary of the Department in
which the Coast Guard is operating.
(3) The functions vested in the President by Section
311(j)(5) of FWPCA and Section 4202(b)(4) of OPA, respecting the issuance of regulations requiring the owners or operators of offshore facilities, including associated pipelines, other than deepwater ports subject to
the DPA, to prepare and submit response plans, the approval of means to ensure the availability of private
personnel and equipment, the review and approval of
such response plans, and the authorization of offshore
facilities, including associated pipelines, other than
deepwater ports subject to the DPA, to operate without
approved response plans, are delegated to the Secretary
of the Interior.
(e)(1) The functions vested in the President by Section 311(j)(6)(A) of FWPCA, respecting the requirements
for periodic inspections of containment booms and
equipment used to remove discharges at non-transportation-related onshore facilities, are delegated to the
Administrator.
(2) The functions vested in the President by Section
311(j)(6)(A) of FWPCA, respecting the requirements for
periodic inspections of containment booms and equipment used to remove discharges on vessels, and at
transportation-related onshore facilities and deepwater
ports subject to the DPA, are delegated to the Secretary of the Department in which the Coast Guard is
operating.
(3) The functions vested in the President by Section
311(j)(6)(A) of FWPCA, respecting the requirements for
periodic inspections of containment booms and equipment used to remove discharges at offshore facilities,
including associated pipelines, other than deepwater
ports subject to the DPA, are delegated to the Secretary of the Interior.
(f) The functions vested in the President by Section
311(j)(6)(B) of FWPCA, respecting requirements for vessels to carry appropriate removal equipment, are delegated to the Secretary of the Department in which the
Coast Guard is operating.
(g)(1) The functions vested in the President by Section 311(j)(7) of FWPCA, respecting periodic drills of removal capability under relevant response plans for onshore and offshore facilities located in the inland zone,
and the publishing of annual reports on those drills, are
delegated to the Administrator.
(2) The functions vested in the President by Section
311(j)(7) of FWPCA, respecting periodic drills of removal capability under relevant response plans for
tank vessels, and for onshore and offshore facilities located in the coastal zone, and the publishing of annual
reports on those drills, are delegated to the Secretary
of the Department in which the Coast Guard is operating.
(h) No provision of Section 2 of this order, including,
but not limited to, any delegation or assignment of any
function hereunder, shall in any way affect, or be construed or interpreted to affect the authority of any Department or agency, or the head of any Department or
agency under any provision of law other than Section
311(j) of FWPCA or Section 4202(b)(4) of OPA.
(i) The functions vested in the President by Section
311(j) of FWPCA or Section 4202(b)(4) of OPA which
have been delegated or assigned by Section 2 of this
order may be redelegated to the head of any Executive
department or agency with his or her consent.
SEC. 3. Removal. The functions vested in the President
by Section 311(c) of FWPCA and Section 1011 of OPA [33

§ 1321

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

U.S.C. 2711], respecting an effective and immediate removal or arrangement for removal of a discharge and
mitigation or prevention of a substantial threat of a
discharge of oil or a hazardous substance, the direction
and monitoring of all Federal, State and private actions, the removal and destruction of a vessel, the issuance of directions, consulting with affected trustees,
and removal completion determinations, are delegated
to the Administrator for the inland zone and to the
Secretary of the Department in which the Coast Guard
is operating for the coastal zone.
SEC. 4. Liability Limit Adjustment. (a) The functions
vested in the President by Section 1004(d) of OPA [33
U.S.C. 2704(d)], respecting the establishment of limits
of liability, with respect to classes or categories of nontransportation-related onshore facilities, the reporting
to Congress on the desirability of adjusting limits of liability with respect to non-transportation-related onshore facilities, and the adjustment of limits of liability to reflect significant increases in the Consumer
Price Index with respect to non-transportation-related
onshore facilities, are delegated to the Administrator,
acting in consultation with the Secretary of Transportation, the Secretary of Energy, and the Attorney General.
(b) The functions vested in the President by Section
1004(d) of OPA, respecting the establishment of limits
of liability, with respect to classes or categories of
transportation-related onshore facilities, the reporting
to Congress on the desirability of adjusting limits of liability, with respect to vessels or transportation-related onshore facilities and deepwater ports subject to the
DPA, and the adjustment of limits of liability to reflect significant increases in the Consumer Price Index
with respect to vessels or transportation-related onshore facilities and deepwater ports subject to the
DPA, are delegated to the Secretary of Transportation.
(c) The functions vested in the President by Section
1004(d) of OPA, respecting the reporting to Congress on
the desirability of adjusting limits of liability with respect to offshore facilities, including associated pipelines, other than deepwater ports subject to the DPA,
and the adjustment of limits of liability to reflect significant increases in the Consumer Price Index with respect to offshore facilities, including associated pipelines, other than deepwater ports subject to the DPA,
are delegated to the Secretary of the Interior.
SEC. 5. Financial Responsibility. (a)(1) The functions
vested in the President by Section 1016(e) of OPA [33
U.S.C. 2716(e)], respecting (in the case of offshore facilities other than deepwater ports) the issuance of regulations concerning financial responsibility, the determination of acceptable methods of financial responsibility, and the specification of necessary or unacceptable terms, conditions, or defenses, are delegated to the
Secretary of the Interior.
(2) The functions vested in the President by Section
1016(e) of OPA, respecting (in the case of deepwater
ports) the issuance of regulations concerning financial
responsibility, the determination of acceptable methods of financial responsibility, and the specification of
necessary or unacceptable terms, conditions, or defenses, are delegated to the Secretary of the Department in which the Coast Guard is operating.
(b)(1) The functions vested in the President by Section 4303 of OPA [33 U.S.C. 2716a], respecting (in cases
involving vessels) the assessment of civil penalties, the
compromising, modification or remission, with or without condition, and the referral for collection of such
imposed penalties, and requests to the Attorney General to secure necessary judicial relief, are delegated to
the Secretary of the Department in which the Coast
Guard is operating.
(2) The functions vested in the President by Section
4303 of OPA, respecting (in cases involving offshore facilities other than deepwater ports) the assessment of
civil penalties, the compromising, modification or remission, with or without condition, and the referral for
collection of such imposed penalties, and requests to
the Attorney General to secure necessary judicial relief, are delegated to the Secretary of the Interior.

Page 440

(3) The functions vested in the President by Section
4303 of OPA, respecting (in cases involving deepwater
ports) the assessment of civil penalties, the compromising, modification or remission, with or without condition, and the referral for collection of such imposed
penalties, and requests to the Attorney General to secure necessary judicial relief, are delegated to the Secretary of the Department in which the Coast Guard is
operating.
SEC. 6. Enforcement. (a) The functions vested in the
President by Section 311(m)(1) of FWPCA, respecting
the enforcement of Section 311 with respect to vessels,
are delegated to the Secretary of the Department in
which the Coast Guard is operating.
(b) The functions vested in the President by Section
311(e) of FWPCA, respecting determinations of imminent and substantial threat, requesting the Attorney
General to secure judicial relief, and other action including issuing administrative orders, are delegated to
the Administrator for the inland zone and to the Secretary of the Department in which the Coast Guard is
operating for the coastal zone.
SEC. 7. Management of the Oil Spill Liability Trust Fund
and Claims. (a)(1)(A) The functions vested in the President by Section 1012(a)(1), (3), and (4) of OPA [33 U.S.C.
2712(a)(1), (3), (4)] respecting payment of removal costs
and claims and determining consistency with the National Contingency Plan (NCP) are delegated to the
Secretary of the Department in which the Coast Guard
is operating.
(B) The functions vested in the President by Section
6002(b) of the OPA [33 U.S.C. 2752(b)] respecting making
amounts, not to exceed $50,000,000 and subject to normal budget controls, in any fiscal year, available from
the Fund (i) to carry out Section 311(c) of FWPCA, and
(ii) to initiate the assessment of natural resources
damages required under Section 1006 of OPA [33 U.S.C.
2706] are delegated to the Secretary of the Department
in which the Coast Guard is operating. Such Secretary
shall make amounts available from the Fund to initiate the assessment of natural resources damages exclusively to the Federal trustees designated in the NCP.
Such Federal trustees shall allocate such amounts
among all trustees required to assess natural resources
damages under Section 1006 of OPA.
(2) The functions vested in the President by Section
1012(a)(2) of OPA [33 U.S.C. 2712(a)(2)], respecting the
payment of costs and determining consistency with the
NCP, are delegated to the Federal trustees designated
in the NCP.
(3) The functions vested in the President by Section
1012(a)(5) of OPA, respecting the payment of costs and
expenses of departments and agencies having responsibility for the implementation, administration, and
enforcement of the Oil Pollution Act of 1990 and subsections (b), (c), (d), (j) and (l) of Section 311 of FWPCA,
are delegated to each head of such department and
agency.
(b) The functions vested in the President by Section
1012(c) of OPA, respecting designation of Federal officials who may obligate money, are delegated to each
head of the departments and agencies to whom functions have been delegated under section 7(a) of this
order for the purpose of carrying out such functions.
(c)(1) The functions vested in the President by Section 1012(d) and (e) of OPA, respecting the obligation of
the Trust Fund on the request of a Governor or pursuant to an agreement with a State, entrance into agreements with States, agreement upon terms and conditions, and the promulgation of regulations concerning
such obligation and entrance into such agreement, are
delegated to the Secretary of the Department in which
the Coast Guard is operating, in consultation with the
Administrator.
(2) The functions vested in the President by Section
1013(e) of OPA [33 U.S.C. 2713(e)], respecting the promulgation and amendment of regulations for the presentation, filing, processing, settlement, and adjudication
of claims under OPA against the Trust Fund, are delegated to the Secretary of the Department in which the

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

Coast Guard is operating, in consultation with the Attorney General.
(3) The functions vested in the President by Section
1012(a) of OPA, respecting the payment of costs, damages, and claims, delegated herein to the Secretary of
the Department in which the Coast Guard is operating,
include, inter alia, the authority to process, settle, and
administratively adjudicate such costs, damages, and
claims, regardless of amount.
(d)(1) The Coast Guard is designated the ‘‘appropriate
agency’’ for the purpose of receiving the notice of discharge of oil or hazardous substances required by Section 311(b)(5) of FWPCA, and the Secretary of the Department in which the Coast Guard is operating is authorized to issue regulations implementing this designation.
(2) The functions vested in the President by Section
1014 of OPA [33 U.S.C. 2714], respecting designation of
sources of discharges or threats, notification to responsible parties, promulgation of regulations respecting
advertisements, the advertisement of designation, and
notification of claims procedures, are delegated to the
Secretary of the Department in which the Coast Guard
is operating.
SEC. 8. Miscellaneous. (a) The functions vested in the
President by Section 311(b)(3) and (4) of FWPCA, as
amended by the Oil Pollution Act of 1990, respecting
the determination of quantities of oil and any hazardous substances the discharge of which may be harmful
to the public health or welfare or the environment and
the determinations of quantities, time, locations, circumstances, or conditions, which are not harmful, are
delegated to the Administrator.
(b) The functions vested in the President by Section
311(d)(2)(G) of FWPCA, respecting schedules of dispersant, chemical, and other spill mitigating devices or
substances, are delegated to the Administrator.
(c) The functions vested in the President by Section
1006(b)(3) and (4) of OPA [33 U.S.C. 2706(b)(3), (4)] respecting the receipt of designations of State and Indian
tribe trustees for natural resources are delegated to the
Administrator.
(d) The function vested in the President by Section
3004 of OPA [104 Stat. 508], with respect to encouraging
the development of an international inventory of
equipment and personnel, is delegated to the Secretary
of the Department in which the Coast Guard is operating, in consultation with the Secretary of State.
(e) The functions vested in the President by Section
4113 of OPA [104 Stat. 516], respecting a study on the
use of liners or other secondary means of containment
for onshore facilities, and the implementation of the
recommendations of the study, are delegated to the Administrator.
(f) The function vested in the President by Section
5002(c)(2)(D) of OPA [33 U.S.C. 2732(c)(2)(D)], respecting
the designating of an employee of the Federal Government who shall represent the Federal Government on
the Oil Terminal Facilities and Oil Tanker Operations
Associations, is delegated to the Secretary of the Department in which the Coast Guard is operating.
(g) The functions vested in the President by Section
5002(o) of OPA, respecting the annual certification of
alternative voluntary advisory groups, are delegated to
the Secretary of the Department in which the Coast
Guard is operating.
(h) The function vested in the President by Section
7001(a)(3) of OPA [33 U.S.C. 2761(a)(3)], respecting the
appointment of Federal agencies to membership on the
Interagency Coordinating Committee on Oil Pollution
Research, is delegated to the Secretary of the Department in which the Coast Guard is operating.
(i) Executive Order No. 11735 of August 3, 1973, Executive Order No. 12123 of February 26, 1979, Executive
Order No. 12418 of May 5, 1983 and the memorandum of
August 24, 1990, delegating certain authorities of the
President under the Oil Pollution Act of 1990 are revoked.
SEC. 9. Consultation. Authorities and functions delegated or assigned by this order shall be exercised sub-

§ 1321a

ject to consultation with the Secretaries of departments and the heads of agencies with statutory responsibilities which may be significantly affected, including, but not limited to, the Department of Justice.
SEC. 10. Litigation. (a) Notwithstanding any other provision of this order, any representation pursuant to or
under this order in any judicial proceedings shall be by
or through the Attorney General. The conduct and control of all litigation arising under the Oil Pollution Act
of 1990 [see Short Title note set out under section 2701
of this title] shall be the responsibility of the Attorney
General.
(b) Notwithstanding any other provision of this order,
the authority under the Oil Pollution Act of 1990 to require the Attorney General to commence litigation is
retained by the President.
(c) Notwithstanding any other provision of this order,
the Secretaries of the Departments of Transportation,
Commerce, Interior, Agriculture, the Secretary of the
Department in which the Coast Guard is operating,
and/or the Administrator of the Environmental Protection Agency may request that the Attorney General
commence litigation under the Oil Pollution Act of
1990.
(d) The Attorney General, in his discretion, is authorized to require that, with respect to a particular oil
spill, an agency refrain from taking administrative enforcement action without first consulting with the Attorney General.

§ 1321a. Prevention of small oil spills
(a) Prevention and education program
The Under Secretary of Commerce for Oceans
and Atmosphere, in consultation with the Secretary of the Department in which the Coast
Guard is operating and other appropriate agencies, shall establish an oil spill prevention and
education program for small vessels. The program shall provide for assessment, outreach,
and training and voluntary compliance activities to prevent and improve the effective response to oil spills from vessels and facilities
not required to prepare a vessel response plan
under the Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.), including recreational
vessels, commercial fishing vessels, marinas,
and aquaculture facilities. The Under Secretary
may provide grants to sea grant colleges and institutes designated under section 1126 of this
title and to State agencies, tribal governments,
and other appropriate entities to carry out—
(1) regional assessments to quantify the
source, incidence and volume of small oil
spills, focusing initially on regions in the
country where, in the past 10 years, the incidence of such spills is estimated to be the
highest;
(2) voluntary, incentive-based clean marina
programs that encourage marina operators,
recreational boaters, and small commercial
vessel operators to engage in environmentally
sound operating and maintenance procedures
and best management practices to prevent or
reduce pollution from oil spills and other
sources;
(3) cooperative oil spill prevention education
programs that promote public understanding
of the impacts of spilled oil and provide useful
information and techniques to minimize pollution, including methods to remove oil and reduce oil contamination of bilge water, prevent
accidental spills during maintenance and refueling and properly cleanup and dispose of oil
and hazardous substances; and

§ 1504

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

construction, maintenance, or operation of the high
seas oil port, to be used as ship supplies, including
bunkering for vessels utilizing the high seas oil port,
‘‘(2) for the transshipment of commodities or materials, to the United States, other than oil,
‘‘(3) except in cases where the Secretary otherwise
by rule provides, for the transshipment of oil, destined for locations outside the United States.’’
Subsec. (c)(7) to (10). Pub. L. 104–324, § 504(b), redesignated pars. (8) to (10) as (7) to (9), respectively, and
struck out former par. (7) which read as follows: ‘‘he
has received the opinions of the Federal Trade Commission and the Attorney General, pursuant to section 1506
of this title, as to whether issuance of the license would
adversely affect competition, restrain trade, promote
monopolization, or otherwise create a situation in contravention of the antitrust laws;’’.
Subsec. (e)(1). Pub. L. 104–324, § 504(c), substituted ‘‘In
issuing a license for the ownership, construction, and
operation of a deepwater port, the Secretary shall prescribe those conditions which the Secretary deems necessary to carry out the provisions and requirements of
this chapter or which are otherwise required by any
Federal department or agency pursuant to the terms of
this chapter. To the extent practicable, conditions required to carry out the provisions and requirements of
this chapter shall be addressed in license conditions
rather than by regulation and, to the extent practicable, the license shall allow a deepwater port’s operating procedures to be stated in an operations manual,
approved by the Coast Guard, in accordance with section 1509(a) of this title, rather than in detailed and
specific license conditions or regulations; except that
basic standards and conditions shall be addressed in
regulations.’’ for ‘‘In issuing a license for the ownership, construction, and operation of a deepwater port,
the Secretary shall prescribe any conditions which he
deems necessary to carry out the provisions of this
chapter, or which are otherwise required by any Federal department or agency pursuant to the terms of
this chapter.’’
Subsec. (e)(2). Pub. L. 104–324, § 504(d), substituted
‘‘his license’’ for ‘‘his application’’.
Subsec. (f). Pub. L. 104–324, § 504(e), inserted heading
and amended text generally. Prior to amendment, text
read as follows: ‘‘The Secretary may amend, transfer,
or reinstate a license issued under this chapter if the
amendment, transfer, or reinstatement is consistent
with the findings made at the time the license was issued.’’
1990—Subsec. (c)(1). Pub. L. 101–380 substituted ‘‘section 2716 of this title’’ for ‘‘section 1517(l) of this title;’’.
1984—Subsec. (b). Pub. L. 98–419, § 2(b), substituted
provisions authorizing the Secretary, on application, to
issue a license for the ownership, construction, and operation of a deepwater port and, on petition of the licensee, to amend, transfer, or reinstate a license issued
under this chapter for provisions which had authorized
the Secretary, upon application and in accordance with
the provisions of this chapter, to issue, transfer,
amend, or renew a license for the ownership, construction, and operation of a deepwater port.
Subsec. (e)(1). Pub. L. 98–419, § 2(e), inserted provision
that on petition of a licensee, the Secretary shall review any condition of a license issued under this chapter to determine if that condition is uniform, insofar as
practicable, with the conditions of other licenses issued
under this chapter and is reasonable, and necessary to
meet the objectives of this chapter, and that the Secretary shall amend or rescind any condition that is no
longer necessary or otherwise required by any Federal
department or agency under this chapter.
Subsec. (f). Pub. L. 98–419, § 2(c), substituted provisions authorizing the Secretary to amend, transfer, or
reinstate a license issued under this chapter if the
amendment, transfer, or reinstatement is consistent
with the findings made at the time the license was issued for provisions which had authorized the Secretary
to transfer such licenses if the Secretary determined
that such transfer was in the public interest and that

Page 544

the transferee met the requirements of this chapter and
the prerequisites to issuance under subsec. (c) of this
section.
Subsec. (h). Pub. L. 98–419, § 2(d), substituted provision that a license issued under this chapter remain in
effect unless suspended or revoked by the Secretary or
until surrendered by the licensee for provisions which
had limited the terms of licenses to not more than 20
years and which had granted each licensee a preferential right of renewal for not more than 10 years,
subject to subsec. (c), upon such conditions and for
such term as determined by the Secretary to be reasonable and appropriate.
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by Pub. L. 101–380 applicable to incidents
occurring after Aug. 18, 1990, see section 1020 of Pub. L.
101–380, set out as an Effective Date note under section
2701 of this title.
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and
assets of the Coast Guard, including the authorities
and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections
468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set
out as a note under section 542 of Title 6.
LNG TANKERS
Pub. L. 109–241, title III, § 304(a), July 11, 2006, 120
Stat. 527, provided that: ‘‘The Secretary of Transportation shall develop and implement a program to promote the transportation of liquefied natural gas to the
United States on United States flag vessels.’’

§ 1504. Procedure
(a) Regulations; issuance, amendment, or rescission; scope
The Secretary shall, as soon as practicable
after January 3, 1975, and after consultation
with other Federal agencies, issue regulations to
carry out the purposes and provisions of this
chapter in accordance with the provisions of section 553 of title 5, without regard to subsection
(a) thereof. Such regulations shall pertain to,
but need not be limited to, application, issuance, transfer, renewal, suspension, and termination of licenses. Such regulations shall provide for full consultation and cooperation with
all other interested Federal agencies and departments and with any potentially affected coastal
State, and for consideration of the views of any
interested members of the general public. The
Secretary is further authorized, consistent with
the purposes and provisions of this chapter, to
amend or rescind any such regulation.
(b) Additional regulations; criteria for site evaluation and preconstruction testing
The Secretary, in consultation with the Secretary of the Interior and the Administrator of
the National Oceanic and Atmospheric Administration, shall, as soon as practicable after January 3, 1975, prescribe regulations relating to
those activities involved in site evaluation and
preconstruction testing at potential deepwater
port locations that may (1) adversely affect the
environment; (2) interfere with authorized uses
of the Outer Continental Shelf; or (3) pose a
threat to human health and welfare. Such activity may thenceforth not be undertaken except

Page 545

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

in accordance with regulations prescribed pursuant to this subsection. Such regulations shall be
consistent with the purposes of this chapter.
(c) Plans; submittal to Secretary of Transportation; publication in Federal Register; application contents; exemption
(1) Any person making an application under
this chapter shall submit detailed plans to the
Secretary. Within 21 days after the receipt of an
application, the Secretary shall determine
whether the application appears to contain all
of the information required by paragraph (2)
hereof. If the Secretary determines that such information appears to be contained in the application, the Secretary shall, no later than 5 days
after making such a determination, publish notice of the application and a summary of the
plans in the Federal Register. If the Secretary
determines that all of the required information
does not appear to be contained in the application, the Secretary shall notify the applicant
and take no further action with respect to the
application until such deficiencies have been
remedied.
(2) Each application shall include such financial, technical, and other information as the
Secretary deems necessary or appropriate. Such
information shall include, but need not be limited to—
(A) the name, address, citizenship, telephone
number, and the ownership interest in the applicant, of each person having any ownership
interest in the applicant of greater than 3 per
centum;
(B) to the extent feasible, the name, address,
citizenship, and telephone number of any person with whom the applicant has made, or proposes to make, a significant contract for the
construction or operation of the deepwater
port and a copy of any such contract;
(C) the name, address, citizenship, and telephone number of each affiliate of the applicant
and of any person required to be disclosed pursuant to subparagraphs (A) or (B) of this paragraph, together with a description of the manner in which such affiliate is associated with
the applicant or any person required to be disclosed under subparagraph (A) or (B) of this
paragraph;
(D) the proposed location and capacity of the
deepwater port, including all components
thereof;
(E) the type and design of all components of
the deepwater port and any storage facilities
associated with the deepwater port;
(F) with respect to construction in phases, a
detailed description of each phase, including
anticipated dates of completion for each of the
specific components thereof;
(G) the location and capacity of existing and
proposed storage facilities and pipelines which
will store or transport oil transported through
the deepwater port, to the extent known by
the applicant or any person required to be disclosed pursuant to subparagraphs (A), (B), or
(C) of this paragraph;
(H) with respect to any existing and proposed refineries which will receive oil transported through the deepwater port, the location and capacity of each such refinery and

§ 1504

the anticipated volume of such oil to be refined by each such refinery, to the extent
known by the applicant or any person required
to be disclosed pursuant to subparagraphs (A),
(B), or (C) of this paragraph;
(I) the financial and technical capabilities of
the applicant to construct or operate the deepwater port;
(J) other qualifications of the applicant to
hold a license under this chapter;
(K) the nation of registry for, and the nationality or citizenship of officers and crew
serving on board, vessels transporting natural
gas that are reasonably anticipated to be servicing the deepwater port;
(L) a description of procedures to be used in
constructing, operating, and maintaining the
deepwater port, including systems of oil spill
prevention, containment, and cleanup; and
(M) such other information as may be required by the Secretary to determine the environmental impact of the proposed deepwater
port.
(3) Upon written request of any person subject
to this subsection, the Secretary may make a
determination in writing to exempt such person
from any of the informational filing provisions
enumerated in this subsection or the regulations
implementing this section if the Secretary determines that such information is not necessary
to facilitate the Secretary’s determinations
under section 1503 of this title and that such exemption will not limit public review and evaluation of the deepwater port project.
(d) Application area; publication in Federal Register; ‘‘application area’’ defined; submission
of other applications; notice of intent and
submission of completed applications; denial
of pending application prior to consideration
of other untimely applications
(1) At the time notice of an application is published pursuant to subsection (c) of this section,
the Secretary shall publish a description in the
Federal Register of an application area encompassing the deepwater port site proposed by such
application and within which construction of
the proposed deepwater port would eliminate, at
the time such application was submitted, the
need for any other deepwater port within that
application area.
(2) As used in this section, ‘‘application area’’
means any reasonable geographical area within
which a deepwater port may be constructed and
operated. Such application area shall not exceed
a circular zone, the center of which is the principal point of loading and unloading at the port,
and the radius of which is the distance from
such point to the high water mark of the nearest
adjacent coastal State.
(3) The Secretary shall accompany such publication with a call for submission of any other
applications for licenses for the ownership, construction, and operation of a deepwater port
within the designated application area. Persons
intending to file applications for such license
shall submit a notice of intent to file an application with the Secretary not later than 60 days
after the publication of notice pursuant to subsection (c) of this section and shall submit the
completed application no later than 90 days

§ 1504

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

after publication of such notice. The Secretary
shall publish notice of any such application received in accordance with subsection (c) of this
section. No application for a license for the ownership, construction, and operation of a deepwater port within the designated application
area for which a notice of intent to file was received after such 60-day period, or which is received after such 90-day period has elapsed, shall
be considered until the application pending with
respect to such application area have been denied pursuant to this chapter.
(4) This subsection shall not apply to deepwater ports for natural gas.
(e) Recommendations to Secretary of Transportation; application for all Federal authorizations; copies of application to Federal agencies and departments with jurisdiction; recommendation of approval or disapproval and
of manner of amendment to comply with
laws or regulations
(1) Not later than 30 days after January 3, 1975,
the Secretary of the Interior, the Administrator
of the Environmental Protection Agency, the
Chief of Engineers of the United States Army
Corps of Engineers, the Administrator of the National Oceanic and Atmospheric Administration,
and the heads of any other Federal department
or agencies having expertise concerning, or jurisdiction over, any aspect of the construction
or operation of deepwater ports shall transmit
to the Secretary written comments as to their
expertise or statutory responsibilities pursuant
to this chapter or any other Federal law.
(2) An application filed with the Secretary
shall constitute an application for all Federal
authorizations required for ownership, construction, and operation of a deepwater port. At the
time notice of any application is published pursuant to subsection (c) of this section, the Secretary shall forward a copy of such application
to those Federal agencies and departments with
jurisdiction over any aspect of such ownership,
construction, or operation for comment, review,
or recommendation as to conditions and for
such other action as may be required by law.
Each agency or department involved shall review the application and, based upon legal considerations within its area of responsibility, recommend to the Secretary, the approval or disapproval of the application not later than 45
days after the last public hearing on a proposed
license for a designated application area. In any
case in which the agency or department recommends disapproval, it shall set forth in detail
the manner in which the application does not
comply with any law or regulation within its
area of responsibility and shall notify the Secretary how the application may be amended so
as to bring it into compliance with the law or
regulation involved.
(f) NEPA compliance
For all applications, the Secretary, in cooperation with other involved Federal agencies
and departments, shall comply with the National Environmental Policy Act of 1969 (42
U.S.C. 4332) [42 U.S.C. 4321 et seq.]. Such compliance shall fulfill the requirement of all Federal
agencies in carrying out their responsibilities
under the National Environmental Policy Act of
1969 pursuant to this chapter.

Page 546

(g) Public notice and hearings; evidentiary hearing in District of Columbia; decision of Secretary based on evidentiary record; consolidation of hearings
A license may be issued only after public notice and public hearings in accordance with this
subsection. At least one such public hearing
shall be held in each adjacent coastal State. Any
interested person may present relevant material
at any hearing. After hearings in each adjacent
coastal State are concluded if the Secretary determines that there exists one or more specific
and material factual issues which may be resolved by a formal evidentiary hearing, at least
one adjudicatory hearing shall be held in accordance with the provisions of section 554 of title 5
in the District of Columbia. The record developed in any such adjudicatory hearing shall be
basis for the Secretary’s decision to approve or
deny a license. Hearings held pursuant to this
subsection shall be consolidated insofar as practicable with hearings held by other agencies. All
public hearings on all applications for any designated application area shall be consolidated
and shall be concluded not later than 240 days
after notice of the initial application has been
published pursuant to subsection (c) of this section.
(h) Nonrefundable application fee; processing
costs; State fees; ‘‘land-based facilities directly related to a deepwater port facility’’
defined; fair market rental value, advance
payment
(1) Each person applying for a license pursuant
to this chapter shall remit to the Secretary at
the time the application is filed a nonrefundable
application fee established by regulation by the
Secretary. In addition, an applicant shall also
reimburse the United States and the appropriate
adjacent coastal State for any additional costs
incurred in processing an application.
(2) Notwithstanding any other provision of
this chapter, and unless prohibited by law, an
adjacent coastal State may fix reasonable fees
for the use of a deepwater port facility, and such
State and any other State in which land-based
facilities directly related to a deepwater port facility are located may set reasonable fees for the
use of such land-based facilities. Fees may be
fixed under authority of this paragraph as compensation for any economic cost attributable to
the construction and operation of such deepwater port and such land-based facilities, which
cannot be recovered under other authority of
such State or political subdivision thereof, including, but not limited to, ad valorem taxes,
and for environmental and administrative costs
attributable to the construction and operation
of such deepwater port and such land-based facilities. Fees under this paragraph shall not exceed such economic, environmental, and administrative costs of such State. Such fees shall be
subject to the approval of the Secretary. As used
in this paragraph, the term ‘‘land-based facilities directly related to a deepwater port facility’’ means the onshore tank farm and pipelines
connecting such tank farm to the deepwater
port facility.
(3) A licensee shall pay annually in advance
the fair market rental value (as determined by

Page 547

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

the Secretary of the Interior) of the subsoil and
seabed of the Outer Continental Shelf of the
United States to be utilized by the deepwater
port, including the fair market rental value of
the right-of-way necessary for the pipeline segment of the port located on such subsoil and seabed.
(i) Application approval; period for determination; priorities; criteria for determination of
application best serving national interest
(1) The Secretary shall approve or deny any
application for a designated application area
submitted pursuant to this chapter not later
than 90 days after the last public hearing on a
proposed license for that area.
(2) In the event more than one application is
submitted for an application area, the Secretary, unless one of the proposed deepwater
ports clearly best serves the national interest,
shall issue a license according to the following
order of priorities:
(A) to an adjacent coastal State (or combination of States), any political subdivision
thereof, or agency or instrumentality, including a wholly owned corporation of any such
government;
(B) to a person who is neither (i) engaged in
producing, refining, or marketing oil, nor (ii)
an affiliate of any person who is engaged in
producing, refining, or marketing oil or an affiliate of any such affiliate;
(C) to any other person.
(3) In determining whether any one proposed
deepwater port clearly best serves the national
interest, the Secretary shall consider the following factors:
(A) the degree to which the proposed deepwater ports affect the environment, as determined under criteria established pursuant to
section 1505 of this title;
(B) any significant differences between anticipated completion dates for the proposed
deepwater ports; and
(C) any differences in costs of construction
and operation of the proposed deepwater ports,
to the extent that such differential may significantly affect the ultimate cost of oil to the
consumer.
(4) The Secretary shall approve or deny any
application for a deepwater port for natural gas
submitted pursuant to this chapter not later
than 90 days after the last public hearing on a
proposed license. Paragraphs (1), (2), and (3) of
this subsection shall not apply to an application
for a deepwater port for natural gas.
(Pub. L. 93–627, § 5, Jan. 3, 1975, 88 Stat. 2131; Pub.
L. 98–419, § 2(f), Sept. 25, 1984, 98 Stat. 1607; Pub.
L. 104–324, title V, § 505, Oct. 19, 1996, 110 Stat.
3927; Pub. L. 107–295, title I, § 106(c), (f), (g), Nov.
25, 2002, 116 Stat. 2086–2088; Pub. L. 109–241, title
III, § 304(c)(1), July 11, 2006, 120 Stat. 527; Pub. L.
111–281, title IX, § 903(d), Oct. 15, 2010, 124 Stat.
3011.)
REFERENCES IN TEXT
The National Environmental Policy Act of 1969, referred to in subsec. (f), is Pub. L. 91–190, Jan. 1, 1970, 83
Stat. 852, as amended, which is classified generally to
chapter 55 (§ 4321 et seq.) of Title 42, The Public Health

§ 1504

and Welfare. For complete classification of this Act to
the Code, see Short Title note set out under section
4321 of Title 42 and Tables.
AMENDMENTS
2010—Subsec. (c)(2)(K). Pub. L. 111–281 realigned margin.
2006—Subsec. (c)(2)(K) to (M). Pub. L. 109–241 added
subpar. (K) and redesignated former subpars. (K) and
(L) as (L) and (M), respectively.
2002—Subsec. (d)(4). Pub. L. 107–295, § 106(c)(1), added
par. (4).
Subsec. (f). Pub. L. 107–295, § 106(f), substituted
‘‘NEPA compliance’’ for ‘‘Environmental impact statement for single application area; criteria’’ in heading
and amended text generally. Prior to amendment, text
read as follows: ‘‘For all timely applications covering a
single application area, the Secretary, in cooperation
with other involved Federal agencies and departments,
shall, pursuant to section 4332(2)(C) of title 42, prepare
a single, detailed environmental impact statement,
which shall fulfill the requirement of all Federal agencies in carrying out their responsibilities pursuant to
this chapter to prepare an environmental impact statement. In preparing such statement the Secretary shall
consider the criteria established under section 1505 of
this title.’’
Subsec. (h)(2). Pub. L. 107–295, § 106(g), inserted ‘‘and
unless prohibited by law,’’ after ‘‘Notwithstanding any
other provision of this chapter,’’.
Subsec. (i)(4). Pub. L. 107–295, § 106(c)(2), added par. (4).
1996—Subsec. (c)(3). Pub. L. 104–324 added par. (3).
1984—Subsec. (g). Pub. L. 98–419 substituted ‘‘issued’’
for ‘‘issued, transferred, or renewed’’.
REGULATIONS
Pub. L. 107–295, title I, § 106(e), Nov. 25, 2002, 116 Stat.
2087, provided that:
‘‘(1) AGENCY AND DEPARTMENT EXPERTISE AND RESPONSIBILITIES.—Not later than 30 days after the date of the
enactment of this Act [Nov. 25, 2002], the heads of Federal departments or agencies having expertise concerning, or jurisdiction over, any aspect of the construction
or operation of deepwater ports for natural gas shall
transmit to the Secretary of Transportation written
comments as to such expertise or statutory responsibilities pursuant to the Deepwater Port Act of 1974 (33
U.S.C. 1501 et seq.) or any other Federal law.
‘‘(2) INTERIM FINAL RULE.—The Secretary may issue
an interim final rule as a temporary regulation implementing this section [amending this section and sections 1501 to 1503, 1507, and 1520 of this title] (including
the amendments made by this section) as soon as practicable after the date of enactment of this section,
without regard to the provisions of chapter 5 of title 5,
United States Code.
‘‘(3) FINAL RULES.—As soon as practicable after the
date of the enactment of this Act, the Secretary of
Transportation shall issue additional final rules that,
in the discretion of the Secretary, are determined to be
necessary under the Deepwater Port Act of 1974 (33
U.S.C. 1501 et seq.) for the application and issuance of
licenses for a deepwater port for natural gas.’’
INFORMATION TO BE PROVIDED
Pub. L. 109–241, title III, § 304(c)(2), July 11, 2006, 120
Stat. 527, provided that: ‘‘When the Coast Guard is operating as a contributing agency in the Federal Energy
Regulatory Commission’s shoreside licensing process
for a liquefied natural gas or liquefied petroleum gas
terminal located on shore or within State seaward
boundaries, the Coast Guard shall provide to the Commission the information described in section 5(c)(2)(K)
of the Deepwater Port Act of 1974 (33 U.S.C.
1504(c)(2)(K)) with respect to vessels reasonably anticipated to be servicing that port.’’

§ 1505

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

§ 1505. Environmental review criteria
(a) Establishment; evaluation of proposed deepwater ports
The Secretary, in accordance with the recommendations of the Administrator of the Environmental Protection Agency and the Administrator of the National Oceanic and Atmospheric
Administration and after consultation with any
other Federal departments and agencies having
jurisdiction over any aspect of the construction
or operation of a deepwater port, shall establish,
as soon as practicable after January 3, 1975, environmental review criteria consistent with the
National Environmental Policy Act [42 U.S.C.
4321 et seq.]. Such criteria shall be used to
evaluate a deepwater port as proposed in an application, including—
(1) the effect on the marine environment;
(2) the effect on oceanographic currents and
wave patterns;
(3) the effect on alternate uses of the oceans
and navigable waters, such as scientific study,
fishing, and exploitation of other living and
nonliving resources;
(4) the potential dangers to a deepwater port
from waves, winds, weather, and geological
conditions, and the steps which can be taken
to protect against or minimize such dangers;
(5) effects of land-based developments related to deepwater port development;
(6) the effect on human health and welfare;
and
(7) such other considerations as the Secretary deems necessary or appropriate.
(b) Review and revision
The Secretary shall periodically review and,
whenever necessary, revise in the same manner
as originally developed, criteria established pursuant to subsection (a) of this section.
(c) Concurrent development of criteria and regulations
Criteria established pursuant to this section
shall be developed concurrently with the regulations in subsection (a) of section 1504 of this
title and in accordance with the provisions of
that subsection.
(Pub. L. 93–627, § 6, Jan. 3, 1975, 88 Stat. 2135.)
REFERENCES IN TEXT
The National Environmental Policy Act, referred to
in subsec. (a), is Pub. L. 91–190, § 2, Jan. 1970, 83 Stat.
852, as amended, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and
Welfare. For complete classification of this Act to the
Code, see Short Title note set out under section 4321 of
Title 42 and Tables.

§ 1506. Repealed. Pub. L. 104–324, title V, § 506,
Oct. 19, 1996, 110 Stat. 3927
Section, Pub. L. 93–627, § 7, Jan. 3, 1975, 88 Stat. 2135;
Pub. L. 98–419, § 2(g), (h), Sept. 25, 1984, 98 Stat. 1607,
provided for antitrust review by Attorney General and
Federal Trade Commission prior to issuance of license
for ownership, construction, and operation of deepwater port.

§ 1507. Common carrier status
(a) Status of deepwater ports and storage facilities
A deepwater port and a storage facility serviced directly by that deepwater port shall oper-

Page 548

ate as a common carrier under applicable provisions of part I of the Interstate Commerce Act
and subtitle IV of title 49, and shall accept,
transport, or convey without discrimination all
oil delivered to the deepwater port with respect
to which its license is issued, except as provided
by subsection (b) of this section.
(b) Discrimination prohibition; exceptions
A licensee is not discriminating under this
section and is not subject to common carrier
regulations under subsection (a) of this section
when that licensee—
(1) is subject to effective competition for the
transportation of oil from alternative transportation systems; and
(2) sets its rates, fees, charges, and conditions of service on the basis of competition,
giving consideration to other relevant business factors such as the market value of services provided, licensee’s cost of operation, and
the licensee’s investment in the deepwater
port and a storage facility, and components
thereof, serviced directly by that deepwater
port.
(c) Enforcement, suspension, or termination proceedings
When the Secretary has reason to believe that
a licensee is not in compliance with this section,
the Secretary shall commence an appropriate
proceeding before the Federal Energy Regulatory Commission or request the Attorney General to take appropriate steps to enforce compliance with this section and, when appropriate, to
secure the imposition of appropriate sanctions.
In addition, the Secretary may suspend or revoke the license of a licensee not complying
with its obligations under this section.
(d) Managed access
Subsections (a) and (b) of this section shall
not apply to deepwater ports for natural gas. A
licensee of a deepwater port for natural gas, or
an affiliate thereof, may exclusively utilize the
entire capacity of the deepwater port and storage facilities for the acceptance, transport, storage, regasification, or conveyance of natural gas
produced, processed, marketed, or otherwise obtained by agreement by such licensee or its affiliates. The licensee may make unused capacity
of the deepwater port and storage facilities
available to other persons, pursuant to reasonable terms and conditions imposed by the licensee, if such use does not otherwise interfere
in any way with the acceptance, transport, storage, regasification, or conveyance of natural gas
produced, processed, marketed, or otherwise obtained by agreement by such licensee or its affiliates.
(e) Jurisdiction
Notwithstanding any provision of the Natural
Gas Act (15 U.S.C. 717 et seq.), any regulation or
rule issued thereunder, or section 1518 of this
title as it pertains to such Act, this chapter
shall apply with respect to the licensing, siting,
construction, or operation of a deepwater natural gas port or the acceptance, transport, storage, regasification, or conveyance of natural gas
at or through a deepwater port, to the exclusion
of the Natural Gas Act or any regulation or rule
issued thereunder.

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE

Sec.

9607.
9608.
9609.
9610.
9611.
9612.
9613.
9614.
9615.

Liability.
Financial responsibility.
Civil penalties and awards.
Employee protection.
Uses of Fund.
Claims procedure.
Civil proceedings.
Relationship to other law.
Presidential delegation and assignment of duties or powers and promulgation of regulations.
9616.
Schedules.
9617.
Public participation.
9618.
High priority for drinking water supplies.
9619.
Response action contractors.
9620.
Federal facilities.
9621.
Cleanup standards.
9622.
Settlements.
9623.
Reimbursement to local governments.
9624.
Methane recovery.
9625.
Section 6921(b)(3)(A)(i) waste.
9626.
Indian tribes.
9627.
Recycling transactions.
9628.
State response programs.
SUBCHAPTER II—HAZARDOUS SUBSTANCE
RESPONSE REVENUE
PART A—HAZARDOUS SUBSTANCE RESPONSE TRUST
FUND
9631 to 9633. Repealed.
PART B—POST-CLOSURE LIABILITY TRUST FUND
9641.
Repealed.
SUBCHAPTER III—MISCELLANEOUS PROVISIONS
9651.
9652.
9653.
9654.

Reports and studies.
Effective dates; savings provisions.
Repealed.
Applicability of Federal water pollution control funding, etc., provisions.
9655.
Legislative veto of rule or regulation.
9656.
Transportation of hazardous substances; listing as hazardous material; liability for release.
9657.
Separability; contribution.
9658.
Actions under State law for damages from exposure to hazardous substances.
9659.
Citizens suits.
9660.
Research, development, and demonstration.
9660a.
Grant program.
9661.
Love Canal property acquisition.
9662.
Limitation on contract and borrowing authority.
SUBCHAPTER IV—POLLUTION INSURANCE
9671.
9672.
9673.
9674.
9675.

Definitions.
State laws; scope of subchapter.
Risk retention groups.
Purchasing groups.
Applicability of securities laws.

SUBCHAPTER I—HAZARDOUS SUBSTANCES
RELEASES, LIABILITY, COMPENSATION
§ 9601. Definitions
For purpose of this subchapter—
(1) The term ‘‘act of God’’ means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable,
and irresistible character, the effects of which
could not have been prevented or avoided by
the exercise of due care or foresight.
(2) The term ‘‘Administrator’’ means the Administrator of the United States Environmental Protection Agency.
(3) The term ‘‘barrel’’ means forty-two
United States gallons at sixty degrees Fahrenheit.

Page 6808

(4) The term ‘‘claim’’ means a demand in
writing for a sum certain.
(5) The term ‘‘claimant’’ means any person
who presents a claim for compensation under
this chapter.
(6) The term ‘‘damages’’ means damages for
injury or loss of natural resources as set forth
in section 9607(a) or 9611(b) of this title.
(7) The term ‘‘drinking water supply’’ means
any raw or finished water source that is or
may be used by a public water system (as defined in the Safe Drinking Water Act [42
U.S.C. 300f et seq.]) or as drinking water by
one or more individuals.
(8) The term ‘‘environment’’ means (A) the
navigable waters, the waters of the contiguous
zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the
Magnuson-Stevens Fishery Conservation and
Management Act [16 U.S.C. 1801 et seq.], and
(B) any other surface water, ground water,
drinking water supply, land surface or subsurface strata, or ambient air within the
United States or under the jurisdiction of the
United States.
(9) The term ‘‘facility’’ means (A) any building, structure, installation, equipment, pipe or
pipeline (including any pipe into a sewer or
publicly owned treatment works), well, pit,
pond, lagoon, impoundment, ditch, landfill,
storage container, motor vehicle, rolling
stock, or aircraft, or (B) any site or area where
a hazardous substance has been deposited,
stored, disposed of, or placed, or otherwise
come to be located; but does not include any
consumer product in consumer use or any vessel.
(10) The term ‘‘federally permitted release’’
means (A) discharges in compliance with a
permit under section 402 of the Federal Water
Pollution Control Act [33 U.S.C. 1342], (B) discharges resulting from circumstances identified and reviewed and made part of the public
record with respect to a permit issued or
modified under section 402 of the Federal
Water Pollution Control Act and subject to a
condition of such permit, (C) continuous or anticipated intermittent discharges from a point
source, identified in a permit or permit application under section 402 of the Federal Water
Pollution Control Act, which are caused by
events occurring within the scope of relevant
operating or treatment systems, (D) discharges in compliance with a legally enforceable permit under section 404 of the Federal
Water Pollution Control Act [33 U.S.C. 1344],
(E) releases in compliance with a legally enforceable final permit issued pursuant to section 3005(a) through (d) of the Solid Waste Disposal Act [42 U.S.C. 6925(a)–(d)] from a hazardous waste treatment, storage, or disposal facility when such permit specifically identifies
the hazardous substances and makes such substances subject to a standard of practice, control procedure or bioassay limitation or condition, or other control on the hazardous substances in such releases, (F) any release in
compliance with a legally enforceable permit
issued under section 1412 of title 33 of 1 section
1 So

in original. Probably should be ‘‘or’’.

Page 6809

TITLE 42—THE PUBLIC HEALTH AND WELFARE

1413 of title 33, (G) any injection of fluids authorized under Federal underground injection
control programs or State programs submitted
for Federal approval (and not disapproved by
the Administrator of the Environmental Protection Agency) pursuant to part C of the Safe
Drinking Water Act [42 U.S.C. 300h et seq.], (H)
any emission into the air subject to a permit
or control regulation under section 111 [42
U.S.C. 7411], section 112 [42 U.S.C. 7412], title I
part C [42 U.S.C. 7470 et seq.], title I part D [42
U.S.C. 7501 et seq.], or State implementation
plans submitted in accordance with section 110
of the Clean Air Act [42 U.S.C. 7410] (and not
disapproved by the Administrator of the Environmental Protection Agency), including any
schedule or waiver granted, promulgated, or
approved under these sections, (I) any injection of fluids or other materials authorized
under applicable State law (i) for the purpose
of stimulating or treating wells for the production of crude oil, natural gas, or water, (ii)
for the purpose of secondary, tertiary, or other
enhanced recovery of crude oil or natural gas,
or (iii) which are brought to the surface in
conjunction with the production of crude oil
or natural gas and which are reinjected, (J)
the introduction of any pollutant into a publicly owned treatment works when such pollutant is specified in and in compliance with
applicable pretreatment standards of section
307(b) or (c) of the Clean Water Act [33 U.S.C.
1317(b), (c)] and enforceable requirements in a
pretreatment program submitted by a State or
municipality for Federal approval under section 402 of such Act [33 U.S.C. 1342], and (K)
any release of source, special nuclear, or byproduct material, as those terms are defined
in the Atomic Energy Act of 1954 [42 U.S.C.
2011 et seq.], in compliance with a legally enforceable license, permit, regulation, or order
issued pursuant to the Atomic Energy Act of
1954.
(11) The term ‘‘Fund’’ or ‘‘Trust Fund’’
means the Hazardous Substance Superfund established by section 9507 of title 26.
(12) The term ‘‘ground water’’ means water
in a saturated zone or stratum beneath the
surface of land or water.
(13) The term ‘‘guarantor’’ means any person, other than the owner or operator, who
provides evidence of financial responsibility
for an owner or operator under this chapter.
(14) The term ‘‘hazardous substance’’ means
(A) any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control Act [33 U.S.C. 1321(b)(2)(A)], (B)
any element, compound, mixture, solution, or
substance designated pursuant to section 9602
of this title, (C) any hazardous waste having
the characteristics identified under or listed
pursuant to section 3001 of the Solid Waste
Disposal Act [42 U.S.C. 6921] (but not including
any waste the regulation of which under the
Solid Waste Disposal Act [42 U.S.C. 6901 et
seq.] has been suspended by Act of Congress),
(D) any toxic pollutant listed under section
307(a) of the Federal Water Pollution Control
Act [33 U.S.C. 1317(a)], (E) any hazardous air
pollutant listed under section 112 of the Clean
Air Act [42 U.S.C. 7412], and (F) any immi-

§ 9601

nently hazardous chemical substance or mixture with respect to which the Administrator
has taken action pursuant to section 7 of the
Toxic Substances Control Act [15 U.S.C. 2606].
The term does not include petroleum, including crude oil or any fraction thereof which is
not otherwise specifically listed or designated
as a hazardous substance under subparagraphs
(A) through (F) of this paragraph, and the
term does not include natural gas, natural gas
liquids, liquefied natural gas, or synthetic gas
usable for fuel (or mixtures of natural gas and
such synthetic gas).
(15) The term ‘‘navigable waters’’ or ‘‘navigable waters of the United States’’ means the
waters of the United States, including the territorial seas.
(16) The term ‘‘natural resources’’ means
land, fish, wildlife, biota, air, water, ground
water, drinking water supplies, and other such
resources belonging to, managed by, held in
trust by, appertaining to, or otherwise controlled by the United States (including the resources of the fishery conservation zone established by the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1801
et seq.]), any State or local government, any
foreign government, any Indian tribe, or, if
such resources are subject to a trust restriction on alienation, any member of an Indian
tribe.
(17) The term ‘‘offshore facility’’ means any
facility of any kind located in, on, or under,
any of the navigable waters of the United
States, and any facility of any kind which is
subject to the jurisdiction of the United
States and is located in, on, or under any
other waters, other than a vessel or a public
vessel.
(18) The term ‘‘onshore facility’’ means any
facility (including, but not limited to, motor
vehicles and rolling stock) of any kind located
in, on, or under, any land or nonnavigable waters within the United States.
(19) The term ‘‘otherwise subject to the jurisdiction of the United States’’ means subject
to the jurisdiction of the United States by virtue of United States citizenship, United States
vessel documentation or numbering, or as provided by international agreement to which the
United States is a party.
(20)(A) The term ‘‘owner or operator’’ means
(i) in the case of a vessel, any person owning,
operating, or chartering by demise, such vessel, (ii) in the case of an onshore facility or an
offshore facility, any person owning or operating such facility, and (iii) in the case of any
facility, title or control of which was conveyed
due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to a
unit of State or local government, any person
who owned, operated, or otherwise controlled
activities at such facility immediately beforehand. Such term does not include a person,
who, without participating in the management of a vessel or facility, holds indicia of
ownership primarily to protect his security interest in the vessel or facility.
(B) In the case of a hazardous substance
which has been accepted for transportation by
a common or contract carrier and except as

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE

provided in section 9607(a)(3) or (4) of this
title, (i) the term ‘‘owner or operator’’ shall
mean such common carrier or other bona fide
for hire carrier acting as an independent contractor during such transportation, (ii) the
shipper of such hazardous substance shall not
be considered to have caused or contributed to
any release during such transportation which
resulted solely from circumstances or conditions beyond his control.
(C) In the case of a hazardous substance
which has been delivered by a common or contract carrier to a disposal or treatment facility and except as provided in section 9607(a)(3)
or (4) of this title, (i) the term ‘‘owner or operator’’ shall not include such common or contract carrier, and (ii) such common or contract carrier shall not be considered to have
caused or contributed to any release at such
disposal or treatment facility resulting from
circumstances or conditions beyond its control.
(D) The term ‘‘owner or operator’’ does not
include a unit of State or local government
which acquired ownership or control involuntarily through bankruptcy, tax delinquency,
abandonment, or other circumstances in
which the government involuntarily acquires
title by virtue of its function as sovereign.
The exclusion provided under this paragraph
shall not apply to any State or local government which has caused or contributed to the
release or threatened release of a hazardous
substance from the facility, and such a State
or local government shall be subject to the
provisions of this chapter in the same manner
and to the same extent, both procedurally and
substantively, as any nongovernmental entity,
including liability under section 9607 of this
title.
(E) EXCLUSION OF LENDERS NOT PARTICIPANTS
IN MANAGEMENT.—
(i) INDICIA OF OWNERSHIP TO PROTECT SECURITY.—The term ‘‘owner or operator’’ does
not include a person that is a lender that,
without participating in the management of
a vessel or facility, holds indicia of ownership primarily to protect the security interest of the person in the vessel or facility.
(ii) FORECLOSURE.—The term ‘‘owner or operator’’ does not include a person that is a
lender that did not participate in management of a vessel or facility prior to foreclosure, notwithstanding that the person—
(I) forecloses on the vessel or facility;
and
(II) after foreclosure, sells, re-leases (in
the case of a lease finance transaction), or
liquidates the vessel or facility, maintains
business activities, winds up operations,
undertakes a response action under section
9607(d)(1) of this title or under the direction of an on-scene coordinator appointed
under the National Contingency Plan, with
respect to the vessel or facility, or takes
any other measure to preserve, protect, or
prepare the vessel or facility prior to sale
or disposition,
if the person seeks to sell, re-lease (in the
case of a lease finance transaction), or
otherwise divest the person of the vessel or

Page 6810

facility at the earliest practicable, commercially reasonable time, on commercially reasonable terms, taking into account market
conditions and legal and regulatory requirements.
(F) PARTICIPATION IN MANAGEMENT.—For purposes of subparagraph (E)—
(i) the term ‘‘participate in management’’—
(I) means actually participating in the
management or operational affairs of a
vessel or facility; and
(II) does not include merely having the
capacity to influence, or the unexercised
right to control, vessel or facility operations;
(ii) a person that is a lender and that holds
indicia of ownership primarily to protect a
security interest in a vessel or facility shall
be considered to participate in management
only if, while the borrower is still in possession of the vessel or facility encumbered by
the security interest, the person—
(I) exercises decisionmaking control over
the environmental compliance related to
the vessel or facility, such that the person
has undertaken responsibility for the hazardous substance handling or disposal
practices related to the vessel or facility;
or
(II) exercises control at a level comparable to that of a manager of the vessel
or facility, such that the person has assumed or manifested responsibility—
(aa) for the overall management of the
vessel or facility encompassing day-today decisionmaking with respect to environmental compliance; or
(bb) over all or substantially all of the
operational functions (as distinguished
from financial or administrative functions) of the vessel or facility other than
the function of environmental compliance;
(iii) the term ‘‘participate in management’’ does not include performing an act or
failing to act prior to the time at which a security interest is created in a vessel or facility; and
(iv) the term ‘‘participate in management’’
does not include—
(I) holding a security interest or abandoning or releasing a security interest;
(II) including in the terms of an extension of credit, or in a contract or security
agreement relating to the extension, a
covenant, warranty, or other term or condition that relates to environmental compliance;
(III) monitoring or enforcing the terms
and conditions of the extension of credit or
security interest;
(IV) monitoring or undertaking 1 or
more inspections of the vessel or facility;
(V) requiring a response action or other
lawful means of addressing the release or
threatened release of a hazardous substance in connection with the vessel or facility prior to, during, or on the expiration
of the term of the extension of credit;

Page 6811

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(VI) providing financial or other advice
or counseling in an effort to mitigate, prevent, or cure default or diminution in the
value of the vessel or facility;
(VII) restructuring, renegotiating, or
otherwise agreeing to alter the terms and
conditions of the extension of credit or security interest, exercising forbearance;
(VIII) exercising other remedies that
may be available under applicable law for
the breach of a term or condition of the
extension of credit or security agreement;
or
(IX) conducting a response action under
section 9607(d) of this title or under the direction of an on-scene coordinator appointed under the National Contingency
Plan,
if the actions do not rise to the level of participating in management (within the meaning of clauses (i) and (ii)).
(G) OTHER TERMS.—As used in this chapter:
(i) EXTENSION OF CREDIT.—The term ‘‘extension of credit’’ includes a lease finance
transaction—
(I) in which the lessor does not initially
select the leased vessel or facility and does
not during the lease term control the daily
operations or maintenance of the vessel or
facility; or
(II) that conforms with regulations issued by the appropriate Federal banking
agency or the appropriate State bank supervisor (as those terms are defined in section 1813 of title 12 2 or with regulations issued by the National Credit Union Administration Board, as appropriate.
(ii) FINANCIAL OR ADMINISTRATIVE FUNCTION.—The term ‘‘financial or administrative function’’ includes a function such as
that of a credit manager, accounts payable
officer, accounts receivable officer, personnel manager, comptroller, or chief financial
officer, or a similar function.
(iii) FORECLOSURE; FORECLOSE.—The terms
‘‘foreclosure’’ and ‘‘foreclose’’ mean, respectively, acquiring, and to acquire, a vessel or
facility through—
(I)(aa) purchase at sale under a judgment
or decree, power of sale, or nonjudicial
foreclosure sale;
(bb) a deed in lieu of foreclosure, or similar conveyance from a trustee; or
(cc) repossession,
if the vessel or facility was security for an
extension of credit previously contracted;
(II) conveyance pursuant to an extension
of credit previously contracted, including
the termination of a lease agreement; or
(III) any other formal or informal manner by which the person acquires, for subsequent disposition, title to or possession
of a vessel or facility in order to protect
the security interest of the person.
(iv) LENDER.—The term ‘‘lender’’ means—
(I) an insured depository institution (as
defined in section 1813 of title 12);
2 So in original. Probably should be followed by a closing
parenthesis.

§ 9601

(II) an insured credit union (as defined in
section 1752 of title 12);
(III) a bank or association chartered
under the Farm Credit Act of 1971 (12
U.S.C. 2001 et seq.);
(IV) a leasing or trust company that is
an affiliate of an insured depository institution;
(V) any person (including a successor or
assignee of any such person) that makes a
bona fide extension of credit to or takes or
acquires a security interest from a nonaffiliated person;
(VI) the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Agricultural
Mortgage Corporation, or any other entity
that in a bona fide manner buys or sells
loans or interests in loans;
(VII) a person that insures or guarantees
against a default in the repayment of an
extension of credit, or acts as a surety
with respect to an extension of credit, to a
nonaffiliated person; and
(VIII) a person that provides title insurance and that acquires a vessel or facility
as a result of assignment or conveyance in
the course of underwriting claims and
claims settlement.
(v) OPERATIONAL FUNCTION.—The term
‘‘operational function’’ includes a function
such as that of a facility or plant manager,
operations manager, chief operating officer,
or chief executive officer.
(vi) SECURITY INTEREST.—The term ‘‘security interest’’ includes a right under a mortgage, deed of trust, assignment, judgment
lien, pledge, security agreement, factoring
agreement, or lease and any other right accruing to a person to secure the repayment
of money, the performance of a duty, or any
other obligation by a nonaffiliated person.
(21) The term ‘‘person’’ means an individual,
firm, corporation, association, partnership,
consortium, joint venture, commercial entity,
United States Government, State, municipality, commission, political subdivision of a
State, or any interstate body.
(22) The term ‘‘release’’ means any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance
or pollutant or contaminant), but excludes (A)
any release which results in exposure to persons solely within a workplace, with respect to
a claim which such persons may assert against
the employer of such persons, (B) emissions
from the engine exhaust of a motor vehicle,
rolling stock, aircraft, vessel, or pipeline
pumping station engine, (C) release of source,
byproduct, or special nuclear material from a
nuclear incident, as those terms are defined in
the Atomic Energy Act of 1954 [42 U.S.C. 2011
et seq.], if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under section 170 of such Act [42 U.S.C.

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE

2210], or, for the purposes of section 9604 of this
title or any other response action, any release
of source byproduct, or special nuclear material from any processing site designated under
section 7912(a)(1) or 7942(a) of this title, and
(D) the normal application of fertilizer.
(23) The terms ‘‘remove’’ or ‘‘removal’’
means 3 the cleanup or removal of released
hazardous substances from the environment,
such actions as may be necessary taken in the
event of the threat of release of hazardous substances into the environment, such actions as
may be necessary to monitor, assess, and
evaluate the release or threat of release of
hazardous substances, the disposal of removed
material, or the taking of such other actions
as may be necessary to prevent, minimize, or
mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release.
The term includes, in addition, without being
limited to, security fencing or other measures
to limit access, provision of alternative water
supplies, temporary evacuation and housing of
threatened individuals not otherwise provided
for, action taken under section 9604(b) of this
title, and any emergency assistance which
may be provided under the Disaster Relief and
Emergency Assistance Act [42 U.S.C. 5121 et
seq.].
(24) The terms ‘‘remedy’’ or ‘‘remedial action’’ means 3 those actions consistent with
permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or
minimize the release of hazardous substances
so that they do not migrate to cause substantial danger to present or future public health
or welfare or the environment. The term includes, but is not limited to, such actions at
the location of the release as storage, confinement, perimeter protection using dikes,
trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances
and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring
reasonably required to assure that such actions protect the public health and welfare
and the environment. The term includes the
costs of permanent relocation of residents and
businesses and community facilities where the
President determines that, alone or in combination with other measures, such relocation is
more cost-effective than and environmentally
preferable to the transportation, storage,
treatment, destruction, or secure disposition
offsite of hazardous substances, or may otherwise be necessary to protect the public health
or welfare; the term includes offsite transport
and offsite storage, treatment, destruction, or
secure disposition of hazardous substances and
associated contaminated materials.
(25) The terms ‘‘respond’’ or ‘‘response’’
means 3 remove, removal, remedy, and reme-

dial action;,4 all such terms (including the
terms ‘‘removal’’ and ‘‘remedial action’’) include enforcement activities related thereto.
(26) The terms ‘‘transport’’ or ‘‘transportation’’ means 3 the movement of a hazardous
substance by any mode, including a hazardous
liquid pipeline facility (as defined in section
60101(a) of title 49), and in the case of a hazardous substance which has been accepted for
transportation by a common or contract carrier, the term ‘‘transport’’ or ‘‘transportation’’
shall include any stoppage in transit which is
temporary, incidental to the transportation
movement, and at the ordinary operating convenience of a common or contract carrier, and
any such stoppage shall be considered as a
continuity of movement and not as the storage of a hazardous substance.
(27) The terms ‘‘United States’’ and ‘‘State’’
include the several States of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American
Samoa, the United States Virgin Islands, the
Commonwealth of the Northern Marianas, and
any other territory or possession over which
the United States has jurisdiction.
(28) The term ‘‘vessel’’ means every description of watercraft or other artificial contrivance used, or capable of being used, as a means
of transportation on water.
(29) The terms ‘‘disposal’’, ‘‘hazardous
waste’’, and ‘‘treatment’’ shall have the meaning provided in section 1004 of the Solid Waste
Disposal Act [42 U.S.C. 6903].
(30) The terms ‘‘territorial sea’’ and ‘‘contiguous zone’’ shall have the meaning provided in
section 502 of the Federal Water Pollution
Control Act [33 U.S.C. 1362].
(31) The term ‘‘national contingency plan’’
means the national contingency plan published under section 311(c) 5 of the Federal
Water Pollution Control Act or revised pursuant to section 9605 of this title.
(32) The terms ‘‘liable’’ or ‘‘liability’’ under
this subchapter shall be construed to be the
standard of liability which obtains under section 311 of the Federal Water Pollution Control Act [33 U.S.C. 1321].
(33) The term ‘‘pollutant or contaminant’’
shall include, but not be limited to, any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure,
ingestion, inhalation, or assimilation into any
organism, either directly from the environment or indirectly by ingestion through food
chains, will or may reasonably be anticipated
to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological
malfunctions (including malfunctions in reproduction) or physical deformations, in such
organisms or their offspring; except that the
term ‘‘pollutant or contaminant’’ shall not include petroleum, including crude oil or any
fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of
paragraph (14) and shall not include natural
4 So

3 So

in original. Probably should be ‘‘mean’’.

Page 6812

in original.
References in Text note below.

5 See

Page 6813

TITLE 42—THE PUBLIC HEALTH AND WELFARE

gas, liquefied natural gas, or synthetic gas of
pipeline quality (or mixtures of natural gas
and such synthetic gas).
(34) The term ‘‘alternative water supplies’’
includes, but is not limited to, drinking water
and household water supplies.
(35)(A) The term ‘‘contractual relationship’’,
for the purpose of section 9607(b)(3) of this
title, includes, but is not limited to, land contracts, deeds, easements, leases, or other instruments transferring title or possession, unless the real property on which the facility
concerned is located was acquired by the defendant after the disposal or placement of the
hazardous substance on, in, or at the facility,
and one or more of the circumstances described in clause (i), (ii), or (iii) is also established by the defendant by a preponderance of
the evidence:
(i) At the time the defendant acquired the
facility the defendant did not know and had
no reason to know that any hazardous substance which is the subject of the release or
threatened release was disposed of on, in, or
at the facility.
(ii) The defendant is a government entity
which acquired the facility by escheat, or
through any other involuntary transfer or
acquisition, or through the exercise of eminent domain authority by purchase or condemnation.
(iii) The defendant acquired the facility by
inheritance or bequest.
In addition to establishing the foregoing, the
defendant must establish that the defendant
has satisfied the requirements of section
9607(b)(3)(a) and (b) of this title, provides full
cooperation, assistance, and facility access to
the persons that are authorized to conduct response actions at the facility (including the
cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response action at the facility), is in compliance with any
land use restrictions established or relied on
in connection with the response action at a facility, and does not impede the effectiveness
or integrity of any institutional control employed at the facility in connection with a response action.
(B) REASON TO KNOW.—
(i) ALL APPROPRIATE INQUIRIES.—To establish that the defendant had no reason to
know of the matter described in subparagraph (A)(i), the defendant must demonstrate to a court that—
(I) on or before the date on which the defendant acquired the facility, the defendant carried out all appropriate inquiries,
as provided in clauses (ii) and (iv), into the
previous ownership and uses of the facility
in accordance with generally accepted
good commercial and customary standards
and practices; and
(II) the defendant took reasonable steps
to—
(aa) stop any continuing release;
(bb) prevent any threatened future release; and
(cc) prevent or limit any human, environmental, or natural resource exposure

§ 9601

to any previously released hazardous
substance.
(ii) STANDARDS AND PRACTICES.—Not later
than 2 years after January 11, 2002, the Administrator shall by regulation establish
standards and practices for the purpose of
satisfying the requirement to carry out all
appropriate inquiries under clause (i).
(iii) CRITERIA.—In promulgating regulations that establish the standards and practices referred to in clause (ii), the Administrator shall include 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 for the purpose of gathering information regarding the potential for contamination at the facility.
(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
since the property was first developed.
(IV) Searches for recorded environmental cleanup liens against the facility
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 hazardous waste handling, generation,
treatment, disposal, and spill records, concerning contamination at or near the facility.
(VI) Visual inspections of the facility
and of adjoining properties.
(VII) Specialized knowledge or experience on the part of the defendant.
(VIII) The relationship of the purchase
price to the value of the property, if the
property was not contaminated.
(IX) Commonly known or reasonably ascertainable information about the property.
(X) The degree of obviousness of the
presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation.
(iv) INTERIM STANDARDS AND PRACTICES.—
(I) PROPERTY PURCHASED BEFORE MAY 31,
1997.—With respect to property purchased
before May 31, 1997, in making a determination with respect to a defendant described in clause (i), a court shall take
into account—
(aa) any specialized knowledge or experience on the part of the defendant;
(bb) the relationship of the purchase
price to the value of the property, if the
property was not contaminated;
(cc) commonly known or reasonably
ascertainable information about the
property;
(dd) the obviousness of the presence or
likely presence of contamination at the
property; and
(ee) the ability of the defendant to detect the contamination by appropriate
inspection.

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE
(II) PROPERTY PURCHASED ON OR AFTER
MAY 31, 1997.—With respect to property purchased on or after May 31, 1997, and until
the Administrator 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 1 Environmental
Site Assessment Process’’, shall satisfy the
requirements in clause (i).

(v) SITE INSPECTION AND TITLE SEARCH.—In
the case of property for residential use or
other similar use purchased by a nongovernmental or noncommercial entity, a facility
inspection and title search that reveal no
basis for further investigation shall be considered to satisfy the requirements of this
subparagraph.
(C) Nothing in this paragraph or in section
9607(b)(3) of this title shall diminish the liability of any previous owner or operator of such
facility who would otherwise be liable under
this chapter. Notwithstanding this paragraph,
if the defendant obtained actual knowledge of
the release or threatened release of a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to another person without disclosing such
knowledge, such defendant shall be treated as
liable under section 9607(a)(1) of this title and
no defense under section 9607(b)(3) of this title
shall be available to such defendant.
(D) Nothing in this paragraph shall affect
the liability under this chapter of a defendant
who, by any act or omission, caused or contributed to the release or threatened release of
a hazardous substance which is the subject of
the action relating to the facility.
(36) The term ‘‘Indian tribe’’ means any Indian tribe, band, nation, or other organized
group or community, including any Alaska
Native village but not including any Alaska
Native regional or village corporation, which
is recognized as eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.
(37)(A) The term ‘‘service station dealer’’
means any person—
(i) who owns or operates a motor vehicle
service station, filling station, garage, or
similar retail establishment engaged in the
business of selling, repairing, or servicing
motor vehicles, where a significant percentage of the gross revenue of the establishment is derived from the fueling, repairing,
or servicing of motor vehicles, and
(ii) who accepts for collection, accumulation, and delivery to an oil recycling facility, recycled oil that (I) has been removed
from the engine of a light duty motor vehicle or household appliances by the owner of
such vehicle or appliances, and (II) is presented, by such owner, to such person for
collection, accumulation, and delivery to an
oil recycling facility.
(B) For purposes of section 9614(c) of this
title, the term ‘‘service station dealer’’ shall,

Page 6814

notwithstanding the provisions of subparagraph (A), include any government agency
that establishes a facility solely for the purpose of accepting recycled oil that satisfies
the criteria set forth in subclauses (I) and (II)
of subparagraph (A)(ii), and, with respect to
recycled oil that satisfies the criteria set forth
in subclauses (I) and (II), owners or operators
of refuse collection services who are compelled
by State law to collect, accumulate, and deliver such oil to an oil recycling facility.
(C) The President shall promulgate regulations regarding the determination of what
constitutes a significant percentage of the
gross revenues of an establishment for purposes of this paragraph.
(38) The term ‘‘incineration vessel’’ means
any vessel which carries hazardous substances
for the purpose of incineration of such substances, so long as such substances or residues
of such substances are on board.
(39) BROWNFIELD SITE.—
(A) IN GENERAL.—The term ‘‘brownfield
site’’ means real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or
contaminant.
(B) EXCLUSIONS.—The term ‘‘brownfield
site’’ does not include—
(i) a facility that is the subject of a
planned or ongoing removal action under
this subchapter;
(ii) a facility that is listed on the National Priorities List or is proposed for
listing;
(iii) a facility that is the subject of a
unilateral administrative order, a court
order, an administrative order on consent
or judicial consent decree that has been issued to or entered into by the parties
under this chapter;
(iv) a facility that is the subject of a unilateral administrative order, a court order,
an administrative order on consent or judicial consent decree that has been issued
to or entered into by the parties, or a facility to which a permit has been issued by
the United States or an authorized State
under the Solid Waste Disposal Act (42
U.S.C. 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. 1321) [33
U.S.C. § 1251 et seq.], the Toxic Substances
Control Act (15 U.S.C. 2601 et seq.), or the
Safe Drinking Water Act (42 U.S.C. 300f et
seq.);
(v) a facility that—
(I) is subject to corrective action under
section 3004(u) or 3008(h) of the Solid
Waste Disposal Act (42 U.S.C. 6924(u),
6928(h)); and
(II) to which a corrective action permit
or order has been issued or modified to
require the implementation of corrective
measures;
(vi) a land disposal unit with respect to
which—
(I) a closure notification under subtitle
C of the Solid Waste Disposal Act (42
U.S.C. 6921 et seq.) has been submitted;
and

Page 6815

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(II) closure requirements have been
specified in a closure plan or permit;
(vii) a facility that is subject to the jurisdiction, custody, or control of a department, agency, or instrumentality of the
United States, except for land held in trust
by the United States for an Indian tribe;
(viii) a portion of a facility—
(I) at which there has been a release of
polychlorinated biphenyls; and
(II) that is subject to remediation
under the Toxic Substances Control Act
(15 U.S.C. 2601 et seq.); or
(ix) a portion of a facility, for which portion, assistance for response activity has
been obtained under subtitle I of the Solid
Waste Disposal Act (42 U.S.C. 6991 et seq.)
from the Leaking Underground Storage
Tank Trust Fund established under section
9508 of title 26.
(C) SITE-BY-SITE DETERMINATIONS.—Notwithstanding subparagraph (B) and on a siteby-site basis, the President may authorize
financial assistance under section 9604(k) of
this title to an eligible entity at a site included in clause (i), (iv), (v), (vi), (viii), or
(ix) of subparagraph (B) if the President
finds that financial assistance will protect
human health and the environment, and either promote economic development or enable the creation of, preservation of, or addition to parks, greenways, undeveloped property, other recreational property, or other
property used for nonprofit purposes.
(D) ADDITIONAL AREAS.—For the purposes
of section 9604(k) of this title, the term
‘‘brownfield site’’ includes a site that—
(i) meets the definition of ‘‘brownfield
site’’ under subparagraphs (A) through (C);
and
(ii)(I) is contaminated by a controlled
substance (as defined in section 802 of title
21);
(II)(aa) is contaminated by petroleum or
a petroleum product excluded from the
definition of ‘‘hazardous substance’’ under
this section; and
(bb) is a site determined by the Administrator or the State, as appropriate, to be—
(AA) of relatively low risk, as compared with other petroleum-only sites in
the State; and
(BB) a site for which there is no viable
responsible party and which will be assessed, investigated, or cleaned up by a
person that is not potentially liable for
cleaning up the site; and
(cc) is not subject to any order issued
under section 9003(h) of the Solid Waste
Disposal Act (42 U.S.C. 6991b(h)); or
(III) is mine-scarred land.
(40) BONA FIDE PROSPECTIVE PURCHASER.—The
term ‘‘bona fide prospective purchaser’’ means
a person (or a tenant of a person) that acquires
ownership of a facility after January 11, 2002,
and that establishes each of the following by a
preponderance of the evidence:
(A) DISPOSAL PRIOR TO ACQUISITION.—All
disposal of hazardous substances at the facil-

§ 9601

ity occurred before the person acquired the
facility.
(B) INQUIRIES.—
(i) IN GENERAL.—The person made all appropriate inquiries into the previous ownership and uses of the facility in accordance with generally accepted good commercial and customary standards and
practices in accordance with clauses (ii)
and (iii).
(ii) STANDARDS AND PRACTICES.—The
standards and practices referred to in
clauses (ii) and (iv) of paragraph (35)(B)
shall be considered to satisfy the requirements of this subparagraph.
(iii) RESIDENTIAL USE.—In the case of
property in residential or other similar use
at the time of purchase by a nongovernmental or noncommercial entity, a facility
inspection and title search that reveal no
basis for further investigation shall be
considered to satisfy the requirements of
this subparagraph.
(C) NOTICES.—The person provides all legally required notices with respect to the
discovery or release of any hazardous substances at the facility.
(D) CARE.—The person exercises appropriate care with respect to hazardous substances found at the facility by taking reasonable steps to—
(i) stop any continuing release;
(ii) prevent any threatened future release; and
(iii) prevent or limit human, environmental, or natural resource exposure to
any previously released hazardous substance.
(E) COOPERATION, ASSISTANCE, AND ACCESS.—The person provides full cooperation,
assistance, and access to persons that are
authorized to conduct response actions or
natural resource restoration at a vessel or
facility (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any
complete or partial response actions or natural resource restoration at the vessel or facility).
(F) INSTITUTIONAL CONTROL.—The person—
(i) is in compliance with any land use restrictions established or relied on in connection with the response action at a vessel or facility; and
(ii) does not impede the effectiveness or
integrity of any institutional control employed at the vessel or facility in connection with a response action.
(G) REQUESTS; SUBPOENAS.—The person
complies with any request for information
or administrative subpoena issued by the
President under this chapter.
(H) NO AFFILIATION.—The person is not—
(i) potentially liable, or affiliated with
any other person that is potentially liable,
for response costs at a facility through—
(I) any direct or indirect familial relationship; or
(II) any contractual, corporate, or financial relationship (other than a con-

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE
tractual, corporate, or financial relationship that is created by the instruments by which title to the facility is
conveyed or financed or by a contract for
the sale of goods or services); or
(ii) the result of a reorganization of a
business entity that was potentially liable.

(41) ELIGIBLE RESPONSE SITE.—
(A) IN GENERAL.—The term ‘‘eligible response site’’ means a site that meets the definition of a brownfield site in subparagraphs
(A) and (B) of paragraph (39), as modified by
subparagraphs (B) and (C) of this paragraph.
(B) INCLUSIONS.—The term ‘‘eligible response site’’ includes—
(i) notwithstanding paragraph (39)(B)(ix),
a portion of a facility, for which portion
assistance for response activity has been
obtained under subtitle I of the Solid
Waste Disposal Act (42 U.S.C. 6991 et seq.)
from the Leaking Underground Storage
Tank Trust Fund established under section
9508 of title 26; or
(ii) a site for which, notwithstanding the
exclusions provided in subparagraph (C) or
paragraph (39)(B), the President determines, on a site-by-site basis and after
consultation with the State, that limitations on enforcement under section 9628 of
this title at sites specified in clause (iv),
(v), (vi) or (viii) of paragraph (39)(B) would
be appropriate and will—
(I) protect human health and the environment; and
(II) promote economic development or
facilitate the creation of, preservation
of, or addition to a park, a greenway, undeveloped property, recreational property, or other property used for nonprofit purposes.
(C) EXCLUSIONS.—The term ‘‘eligible response site’’ does not include—
(i) a facility for which the President—
(I) conducts or has conducted a preliminary assessment or site inspection;
and
(II) after consultation with the State,
determines or has determined that the
site obtains a preliminary score sufficient for possible listing on the National
Priorities List, or that the site otherwise
qualifies for listing on the National Priorities List; unless the President has
made a determination that no further
Federal action will be taken; or
(ii) facilities that the President determines warrant particular consideration as
identified by regulation, such as sites posing a threat to a sole-source drinking
water aquifer or a sensitive ecosystem.
(Pub. L. 96–510, title I, § 101, Dec. 11, 1980, 94 Stat.
2767; Pub. L. 96–561, title II, § 238(b), Dec. 22, 1980,
94 Stat. 3300; Pub. L. 99–499, title I, §§ 101, 114(b),
127(a), title V, § 517(c)(2), Oct. 17, 1986, 100 Stat.
1615, 1652, 1692, 1774; Pub. L. 100–707, title I,
§ 109(v), Nov. 23, 1988, 102 Stat. 4710; Pub. L.
103–429, § 7(e)(1), Oct. 31, 1994, 108 Stat. 4390; Pub.
L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], title II, § 2502(b), Sept. 30, 1996, 110 Stat.

Page 6816

3009, 3009–41, 3009–464; Pub. L. 104–287, § 6(j)(1),
Oct. 11, 1996, 110 Stat. 3399; Pub. L. 106–74, title
IV, § 427, Oct. 20, 1999, 113 Stat. 1095; Pub. L.
107–118, title II, §§ 211(a), 222(a), 223, 231(a), Jan.
11, 2002, 115 Stat. 2360, 2370, 2372, 2375.)
REFERENCES IN TEXT
This chapter, referred to in pars. (5), (13), (20)(D), (G),
(35)(C), (D), (39)(B)(iii), and (40)(G), was in the original
‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2767, as amended, known as the Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980. For complete classification of this Act to
the Code, see Short Title note below and Tables.
The Safe Drinking Water Act, referred to in pars. (7),
(10), and (39)(B)(iv), is title XIV of act July 1, 1944, as
added Dec. 16, 1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660,
as amended, which is classified generally to subchapter
XII (§ 300f et seq.) of chapter 6A of this title. Part C of
the Safe Drinking Water Act is classified generally to
part C (§ 300h et seq.) of subchapter XII of chapter 6A of
this title. For complete classification of this Act to the
Code, see Short Title note set out under section 201 of
this title and Tables.
The Magnuson-Stevens Fishery Conservation and
Management Act, referred to in pars. (8) and (16), is
Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended,
which is classified principally to chapter 38 (§ 1801 et
seq.) of Title 16, Conservation. The fishery conservation
zone established by this Act, referred to in par. (16),
was established by section 101 of this Act (16 U.S.C.
1811), which as amended generally by Pub. L. 99–659,
title I, § 101(b), Nov. 14, 1986, 100 Stat. 3706, relates to
United States sovereign rights and fishery management
authority over fish within the exclusive economic zone
as defined in section 1802 of Title 16. For complete classification of this Act to the Code, see Short Title note
set out under section 1801 of Title 16 and Tables.
The Clean Air Act, referred to in par. (10), is act July
14, 1955, ch. 360, as amended generally by Pub. L. 88–206,
Dec. 17, 1963, 77 Stat. 392, and later by Pub. L. 95–95,
Aug. 7, 1977, 91 Stat. 685. The Clean Air Act was originally classified to chapter 15B (§ 1857 et seq.) of this
title. On enactment of Pub. L. 95–95, the Act was reclassified to chapter 85 (§ 7401 et seq.) of this title. Parts C
and D of title I of the Clean Air Act are classified generally to parts C (§ 7470 et seq.) and D (§ 7501 et seq.), respectively, of subchapter I of chapter 85 of this title.
For complete classification of this Act to the Code, see
Short Title note set out under section 7401 of this title
and Tables.
The Atomic Energy Act of 1954, referred to in pars.
(10) and (22), is act Aug. 1, 1946, ch. 724, as added by act
Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, which is classified
principally to chapter 23 (§ 2011 et seq.) of this title. For
complete classification of this Act to the Code, see
Short Title note set out under section 2011 of this title
and Tables.
The Solid Waste Disposal Act, referred to in pars.
(14), (39)(B)(iv), (vi)(I), (ix), and (41)(B)(i), is title II of
Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat.
2795, which is classified generally to chapter 82 (§ 6901 et
seq.) of this title. Subtitles C and I of the Act are classified generally to subchapters III (§ 6921 et seq.) and IX
(§ 6991 et seq.), respectively, of chapter 82 of this title.
For complete classification of this Act to the Code, see
Short Title note set out under section 6901 of this title
and Tables.
The Farm Credit Act of 1971, referred to in par.
(20)(G)(iv)(III), is Pub. L. 92–181, Dec. 10, 1971, 85 Stat.
583, as amended, which is classified generally to chapter 23 (§ 2001 et seq.) of Title 12, Banks and Banking. For
complete classification of this Act to the Code, see
Short Title note set out under section 2001 of Title 12
and Tables.
The Disaster Relief and Emergency Assistance Act,
referred to in par. (23), is Pub. L. 93–288, May 22, 1974,
88 Stat. 143, as amended, known as the Robert T. Staf-

Page 6817

TITLE 42—THE PUBLIC HEALTH AND WELFARE

ford Disaster Relief and Emergency Assistance Act,
which is classified principally to chapter 68 (§ 5121 et
seq.) of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 5121 of this title and Tables.
The Federal Water Pollution Control Act, referred to
in par. (39)(B)(iv), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat.
816, also known as the Clean Water Act, which is classified generally to chapter 26 (§ 1251 et seq.) of Title 33,
Navigation and Navigable Waters. Section 311(c) of the
Act was amended generally by Pub. L. 101–380, title IV,
§ 4201(a), Aug. 18, 1990, 104 Stat. 523, and no longer contains provisions directing the publishing of a National
Contingency Plan. However, such provisions are contained in section 1321(d) of Title 33. For complete classification of this Act to the Code, see Short Title note
set out under section 1251 of Title 33 and Tables.
The Toxic Substances Control Act, referred to in par.
(39)(B)(iv), (viii)(II), is Pub. L. 94–469, Oct. 11, 1976, 90
Stat. 2003, as amended, which is classified generally to
chapter 53 (§ 2601 et seq.) of Title 15, Commerce and
Trade. For complete classification of this Act to the
Code, see Short Title note set out under section 2601 of
Title 15 and Tables.
AMENDMENTS
2002—Par. (35)(A). Pub. L. 107–118, § 223(1), in introductory provisions substituted ‘‘deeds, easements, leases,
or’’ for ‘‘deeds or’’ and in concluding provisions substituted ‘‘the defendant has satisfied’’ for ‘‘he has satisfied’’ and inserted before period at end ‘‘, provides
full cooperation, assistance, and facility access to the
persons that are authorized to conduct response actions
at the facility (including the cooperation and access
necessary for the installation, integrity, operation, and
maintenance of any complete or partial response action
at the facility), is in compliance with any land use restrictions established or relied on in connection with
the response action at a facility, and does not impede
the effectiveness or integrity of any institutional control employed at the facility in connection with a response action’’.
Par. (35)(B). Pub. L. 107–118, § 223(2), added subpar. (B)
and struck out former subpar. (B) which read as follows: ‘‘To establish that the defendant had no reason to
know, as provided in clause (i) of subparagraph (A) of
this paragraph, the defendant must have undertaken,
at the time of acquisition, all appropriate inquiry into
the previous ownership and uses of the property consistent with good commercial or customary practice in
an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any
specialized knowledge or experience on the part of the
defendant, the relationship of the purchase price to the
value of the property if uncontaminated, commonly
known or reasonably ascertainable information about
the property, the obviousness of the presence or likely
presence of contamination at the property, and the
ability to detect such contamination by appropriate inspection.’’
Par. (39). Pub. L. 107–118, § 211(a), added par. (39).
Par. (40). Pub. L. 107–118, § 222(a), added par. (40).
Par. (41). Pub. L. 107–118, § 231(a), added par. (41).
1999—Par. (20)(D). Pub. L. 106–74, which directed the
amendment of subpar. (D) by inserting ‘‘through seizure or otherwise in connection with law enforcement
activity’’ before ‘‘involuntary’’ the first place it appears, could not be executed because the word ‘‘involuntary’’ does not appear in subpar. (D).
1996—Pars. (8), (16). Pub. L. 104–208, § 101(a) [title II,
§ 211(b)], substituted ‘‘Magnuson-Stevens Fishery’’ for
‘‘Magnuson Fishery’’.
Par. (20)(E) to (G). Pub. L. 104–208, § 2502(b), added subpars. (E) to (G).
Par. (26). Pub. L. 104–287 substituted ‘‘section 60101(a)
of title 49’’ for ‘‘the Pipeline Safety Act’’.
1994—Par. (26). Pub. L. 103–429 substituted ‘‘a hazardous liquid pipeline facility’’ for ‘‘pipeline’’.
1988—Par. (23). Pub. L. 100–707 substituted ‘‘Disaster
Relief and Emergency Assistance Act’’ for ‘‘Disaster
Relief Act of 1974’’.

§ 9601

1986—Pub. L. 99–499, § 101(f), struck out ‘‘, the term’’
after ‘‘subchapter’’ in introductory text.
Pars. (1) to (10). Pub. L. 99–499, § 101(f), inserted ‘‘The
term’’ and substituted a period for the semicolon at
end.
Par. (11). Pub. L. 99–499, § 517(c)(2), amended par. (11)
generally. Prior to amendment, par. (11) read as follows: ‘‘The term ‘Fund’ or ‘Trust Fund’ means the Hazardous Substance Response Fund established by section
9631 of this title or, in the case of a hazardous waste
disposal facility for which liability has been transferred under section 9607(k) of this title, the Post-closure Liability Fund established by section 9641 of this
title.’’
Pub. L. 99–499, § 101(f), inserted ‘‘The term’’ and substituted a period for the semicolon at end.
Pars. (12) to (15). Pub. L. 99–499, § 101(f), inserted ‘‘The
term’’ and substituted a period for the semicolon at
end.
Par. (16). Pub. L. 99–499, § 101(a), (f), inserted ‘‘The
term’’, struck out ‘‘or’’ after ‘‘local government,’’ inserted ‘‘, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of
an Indian tribe’’, and substituted a period for the semicolon at end.
Pars. (17) to (19). Pub. L. 99–499, § 101(f), inserted ‘‘The
term’’ and substituted a period for the semicolon at
end.
Par. (20)(A). Pub. L. 99–499, § 101(f), inserted ‘‘The
term’’.
Pub. L. 99–499, § 101(b)(2), amended cl. (iii) generally.
Prior to amendment, cl. (iii) read as follows: ‘‘in the
case of any abandoned facility, any person who owned,
operated, or otherwise controlled activities at such facility immediately prior to such abandonment.’’
Pub. L. 99–499, § 101(b)(3), in provisions following
subcl. (iii), substituted a period for the semicolon at
end.
Par. (20)(B), (C). Pub. L. 99–499, § 101(b)(3), substituted
‘‘In the case’’ for ‘‘in the case’’ and a period for the
semicolon at end.
Par. (20)(D). Pub. L. 99–499, § 101(b)(1), (f), added subpar. (D). The part of § 101(f) of Pub. L. 99–499 which directed the amendment of par. (20) by changing the
semicolon at end to a period could not be executed in
view of the prior amendment of par. (20) by § 101(b)(1) of
Pub. L. 99–499 which added subpar. (D) ending in a period.
Par. (21). Pub. L. 99–499, § 101(f), inserted ‘‘The term’’
and substituted a period for the semicolon at end.
Par. (22). Pub. L. 99–499, § 101(c), (f), inserted ‘‘The
term’’ and ‘‘(including the abandonment or discarding
of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)’’, substituted a period for the semicolon at
end.
Par. (23). Pub. L. 99–499, § 101(f), inserted ‘‘The terms’’
and substituted a period for the semicolon at end.
Par. (24). Pub. L. 99–499, § 101(d), (f), inserted ‘‘The
terms’’ and substituted ‘‘and associated contaminated
materials’’ for ‘‘or contaminated materials’’ and ‘‘welfare; the term includes offsite transport and offsite
storage, treatment, destruction, or secure disposition
of hazardous substances and associated contaminated
materials.’’ for ‘‘welfare. The term does not include offsite transport of hazardous substances, or the storage,
treatment, destruction, or secure disposition offsite of
such hazardous substances or contaminated materials
unless the President determines that such actions (A)
are more cost-effective than other remedial actions, (B)
will create new capacity to manage, in compliance with
subtitle C of the Solid Waste Disposal Act [42 U.S.C.
6921 et seq.], hazardous substances in addition to those
located at the affected facility, or (C) are necessary to
protect public health or welfare or the environment
from a present or potential risk which may be created
by further exposure to the continued presence of such
substances or materials;’’. The part of § 101(f) of Pub. L.
99–499 which directed amendment of par. (24) by changing the semicolon at end to a period could not be exe-

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE

cuted in view of prior amendment of par. (24) by § 101(d)
of Pub. L. 99–499 which substituted language at end of
par. (24) ending in a period for former language ending
in a semicolon.
Par. (25). Pub. L. 99–499, § 101(e), (f), inserted ‘‘The
terms’’ and ‘‘, all such terms (including the terms ‘removal’ and ‘remedial action’) include enforcement activities related thereto.’’ The part of § 101(f) of Pub. L.
99–499 which directed amendment of par. (25) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (25) by § 101(e)
of Pub. L. 99–499 inserting language and a period at end
of par. (25).
Pars. (26), (27). Pub. L. 99–499, § 101(f), inserted ‘‘The
terms’’ and substituted a period for the semicolon at
end.
Par. (28). Pub. L. 99–499, § 101(f), inserted ‘‘The term’’
and substituted a period for the semicolon at end.
Par. (29). Pub. L. 99–499, § 101(f), inserted ‘‘The terms’’
and substituted a period for the semicolon at end.
Par. (30). Pub. L. 99–499, § 101(f), inserted ‘‘The terms’’.
Par. (31). Pub. L. 99–499, § 101(f), inserted ‘‘The term’’
and substituted a period for ‘‘; and’’.
Par. (32). Pub. L. 99–499, § 101(f), inserted ‘‘The terms’’.
Pars. (33) to (36). Pub. L. 99–499, § 101(f), added pars.
(33) to (36).
Par. (37). Pub. L. 99–499, § 114(b), added par. (37).
Par. (38). Pub. L. 99–499, § 127(a), added par. (38).
1980—Pars. (8), (16). Pub. L. 96–561 substituted ‘‘Magnuson Fishery Conservation and Management Act’’ for
‘‘Fishery Conservation and Management Act of 1976’’.
EFFECTIVE DATE OF 1996 AMENDMENT
Pub. L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided
that the amendment made by that section is effective
15 days after Oct. 11, 1996.
Amendment by section 2502(b) of Pub. L. 104–208 applicable with respect to any claim that has not been finally adjudicated as of Sept. 30, 1996, see section 2505 of
Pub. L. 104–208, set out as a note under section 6991b of
this title.
EFFECTIVE DATE OF 1986 AMENDMENT
Pub. L. 99–499, § 4, Oct. 17, 1986, 100 Stat. 1614, provided
that: ‘‘Except as otherwise specified in section 121(b) of
this Act [set out as an Effective Date note under section 9621 of this title] or in any other provision of titles
I, II, III, and IV of this Act [see Tables for classification], the amendments made by titles I through IV of
this Act [enacting subchapter IV of this chapter and
sections 9616 to 9626, 9658 to 9660, and 9661 of this title
and sections 2701 to 2707 and 2810 of Title 10, Armed
Forces, amending sections 6926, 6928, 6991 to 6991d,
6991g, 9601 to 9609, 9611 to 9614, 9631, 9651, 9656, and 9657
of this title and section 1416 of Title 33, Navigation and
Navigable Waters, and renumbering former section 2701
of Title 10 as section 2721 of Title 10] shall take effect
on the enactment of this Act [Oct. 17, 1986].’’
Amendment by section 517(c)(2) of Pub. L. 99–499 effective Jan. 1, 1987, see section 517(e) of Pub. L. 99–499,
set out as an Effective Date note under section 9507 of
Title 26, Internal Revenue Code.
EFFECTIVE DATE OF 1980 AMENDMENT
Pub. L. 96–561, title II, § 238(b), Dec. 22, 1980, 94 Stat.
3300, provided that the amendment made by that section is effective 15 days after Dec. 22, 1980.
SHORT TITLE OF 2002 AMENDMENTS
Pub. L. 107–118, § 1, Jan. 11, 2002, 115 Stat. 2356, provided that: ‘‘This Act [enacting section 9628 of this
title, amending this section and sections 9604, 9605, 9607,
and 9622 of this title, and enacting provisions set out as
notes under this section and section 9607 of this title]
may be cited as the ‘Small Business Liability Relief
and Brownfields Revitalization Act’.’’
Pub. L. 107–118, title I, § 101, Jan. 11, 2002, 115 Stat.
2356, provided that: ‘‘This title [amending sections 9607

Page 6818

and 9622 of this title and enacting provisions set out as
a note under section 9607 of this title] may be cited as
the ‘Small Business Liability Protection Act’.’’
Pub. L. 107–118, title II, § 201, Jan. 11, 2002, 115 Stat.
2360, provided that: ‘‘This title [enacting section 9628 of
this title and amending this section and sections 9604,
9605, and 9607 of this title] may be cited as the
‘Brownfields Revitalization and Environmental Restoration Act of 2001’.’’
SHORT TITLE OF 1996 AMENDMENT
Pub. L. 104–208, div. A, title II, § 2501, Sept. 30, 1996, 110
Stat. 3009–462, provided that: ‘‘This subtitle [subtitle E
(§§ 2501–2505) of title II of div. A of Pub. L. 104–208,
amending this section and sections 6991b and 9607 of
this title and enacting provisions set out as a note
under section 6991b of this title] may be cited as the
‘Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996’.’’
SHORT TITLE OF 1992 AMENDMENT
Pub. L. 102–426, § 1, Oct. 19, 1992, 106 Stat. 2174, provided that: ‘‘This Act [amending section 9620 of this
title and enacting provisions set out as a note under
section 9620 of this title] may be cited as the ‘Community Environmental Response Facilitation Act’.’’
SHORT TITLE OF 1986 AMENDMENT
Pub. L. 99–499, § 1, Oct. 17, 1986, 100 Stat. 1613, provided
that: ‘‘This Act [enacting subchapter IV of this chapter
and sections 9616 to 9626, 9658 to 9662, 11001 to 11005,
11021 to 11023, and 11041 to 11050 of this title, sections
2701 to 2707 and 2810 of Title 10, Armed Forces, and sections 59A, 4671, 4672, 9507, and 9508 of Title 26, Internal
Revenue Code, amending this section, sections 6926,
6928, 6991 to 6991d, 6991g, 9602 to 9609, 9611 to 9614, 9631,
9651, 9656, and 9657 of this title, sections 26, 164, 275, 936,
1561, 4041, 4042, 4081, 4221, 4611, 4612, 4661, 4662, 6154, 6416,
6420, 6421, 6425, 6427, 6655, 9502, 9503, and 9506 of Title 26,
and section 1416 of Title 33, Navigation and Navigable
Waters, renumbering former section 2701 of Title 10 as
section 2721 of Title 10, repealing sections 9631 to 9633,
9641, and 9653 of this title and sections 4681 and 4682 of
Title 26, and enacting provisions set out as notes under
this section, sections 6921, 6991b, 7401, 9620, 9621, 9658,
9660, 9661, and 11001 of this title, section 2703 of Title 10,
sections 1, 26, 4041, 4611, 4661, 4671, 4681, 9507, and 9508 of
Title 26, and section 655 of Title 29, Labor] may be cited
as the ‘Superfund Amendments and Reauthorization
Act of 1986’.’’
SHORT TITLE
Pub. L. 96–510, § 1, Dec. 11, 1980, 94 Stat. 2767, provided:
‘‘That this Act [enacting this chapter, section 6911a of
this title, and sections 4611, 4612, 4661, 4662, 4681, and
4682 of Title 26, Internal Revenue Code, amending section 6911 of this title, section 1364 of Title 33, Navigation and Navigable Waters, and section 11901 of Title 49,
Transportation, and enacting provisions set out as
notes under section 6911 of this title and sections 1 and
4611 of Title 26] may be cited as the ‘Comprehensive Environmental Response, Compensation, and Liability
Act of 1980’.’’
TRANSFER OF FUNCTIONS
For transfer of certain functions from Nuclear Regulatory Commission to Chairman thereof, see Reorg.
Plan No. 1 of 1980, 45 F.R. 40561, 94 Stat. 3585, set out as
a note under section 5841 of this title.
TERRITORIAL SEA AND CONTIGUOUS ZONE OF UNITED
STATES
For extension of territorial sea and contiguous zone
of United States, see Proc. No. 5928 and Proc. No. 7219,
respectively, set out as notes under section 1331 of Title
43, Public Lands.
DEFINITIONS
Pub. L. 99–499, § 2, Oct. 17, 1986, 100 Stat. 1614, provided
that: ‘‘As used in this Act [see Short Title of 1986
Amendment note above]—

Page 6819

TITLE 42—THE PUBLIC HEALTH AND WELFARE

‘‘(1) CERCLA.—The term ‘CERCLA’ means the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.).
‘‘(2) ADMINISTRATOR.—The term ‘Administrator’
means the Administrator of the Environmental Protection Agency.’’

§ 9602. Designation of additional hazardous substances and establishment of reportable released quantities; regulations
(a) The Administrator shall promulgate and
revise as may be appropriate, regulations designating as hazardous substances, in addition to
those referred to in section 9601(14) of this title,
such elements, compounds, mixtures, solutions,
and substances which, when released into the
environment may present substantial danger to
the public health or welfare or the environment,
and shall promulgate regulations establishing
that quantity of any hazardous substance the release of which shall be reported pursuant to section 9603 of this title. The Administrator may
determine that one single quantity shall be the
reportable quantity for any hazardous substance, regardless of the medium into which the
hazardous substance is released. For all hazardous substances for which proposed regulations
establishing reportable quantities were published in the Federal Register under this subsection on or before March 1, 1986, the Administrator shall promulgate under this subsection
final regulations establishing reportable quantities not later than December 31, 1986. For all
hazardous substances for which proposed regulations establishing reportable quantities were
not published in the Federal Register under this
subsection on or before March 1, 1986, the Administrator shall publish under this subsection
proposed regulations establishing reportable
quantities not later than December 31, 1986, and
promulgate final regulations under this subsection establishing reportable quantities not
later than April 30, 1988.’’
(b) Unless and until superseded by regulations
establishing a reportable quantity under subsection (a) of this section for any hazardous substance as defined in section 9601(14) of this title,
(1) a quantity of one pound, or (2) for those hazardous substances for which reportable quantities have been established pursuant to section
1321(b)(4) of title 33, such reportable quantity,
shall be deemed that quantity, the release of
which requires notification pursuant to section
9603(a) or (b) of this title.
(Pub. L. 96–510, title I, § 102, Dec. 11, 1980, 94 Stat.
2772; Pub. L. 99–499, title I, § 102, Oct. 17, 1986, 100
Stat. 1617.)
AMENDMENTS
1986—Subsec. (a). Pub. L. 99–499 inserted provisions
setting deadlines for promulgation of proposed and
final regulations.

§ 9603. Notification requirements respecting released substances
(a) Notice to National Response Center upon release from vessel or offshore or onshore facility by person in charge; conveyance of notice
by Center
Any person in charge of a vessel or an offshore
or an onshore facility shall, as soon as he has

§ 9603

knowledge of any release (other than a federally
permitted release) of a hazardous substance
from such vessel or facility in quantities equal
to or greater than those determined pursuant to
section 9602 of this title, immediately notify the
National Response Center established under the
Clean Water Act [33 U.S.C. 1251 et seq.] of such
release. The National Response Center shall convey the notification expeditiously to all appropriate Government agencies, including the Governor of any affected State.
(b) Penalties for failure to notify; use of notice or
information pursuant to notice in criminal
case
Any person—
(1) in charge of a vessel from which a hazardous substance is released, other than a federally permitted release, into or upon the navigable waters of the United States, adjoining
shorelines, or into or upon the waters of the
contiguous zone, or
(2) in charge of a vessel from which a hazardous substance is released, other than a federally permitted release, which may affect natural resources belonging to, appertaining to, or
under the exclusive management authority of
the United States (including resources under
the Magnuson-Stevens Fishery Conservation
and Management Act [16 U.S.C. 1801 et seq.]),
and who is otherwise subject to the jurisdiction of the United States at the time of the release, or
(3) in charge of a facility from which a hazardous substance is released, other than a federally permitted release,
in a quantity equal to or greater than that determined pursuant to section 9602 of this title
who fails to notify immediately the appropriate
agency of the United States Government as soon
as he has knowledge of such release or who submits in such a notification any information
which he knows to be false or misleading shall,
upon conviction, be fined in accordance with the
applicable provisions of title 18 or imprisoned
for not more than 3 years (or not more than 5
years in the case of a second or subsequent conviction), or both. Notification received pursuant
to this subsection or information obtained by
the exploitation of such notification shall not be
used against any such person in any criminal
case, except a prosecution for perjury or for giving a false statement.
(c) Notice to Administrator of EPA of existence
of storage, etc., facility by owner or operator;
exception; time, manner, and form of notice;
penalties for failure to notify; use of notice
or information pursuant to notice in criminal
case
Within one hundred and eighty days after December 11, 1980, any person who owns or operates
or who at the time of disposal owned or operated, or who accepted hazardous substances for
transport and selected, a facility at which hazardous substances (as defined in section
9601(14)(C) of this title) are or have been stored,
treated, or disposed of shall, unless such facility
has a permit issued under, or has been accorded
interim status under, subtitle C of the Solid
Waste Disposal Act [42 U.S.C. 6921 et seq.], no-

Page 545

§ 1801

TITLE 43—PUBLIC LANDS

(C) Additions to the Outstanding Natural
Area
Any land or interest in land adjacent to
the Outstanding Natural Area acquired by
the United States after May 8, 2008, under
subparagraph (A) shall be added to, and administered as part of, the Outstanding Natural Area.
(6) Law enforcement activities
Nothing in this section, the management
plan, or the Jupiter Inlet Coordinated Resource Management Plan (including any updates or amendments to the Jupiter Inlet
Coordinated Resource Management Plan) precludes, prohibits, or otherwise affects—
(A) any maritime security, maritime safety, or environmental protection mission or
activity of the Coast Guard;
(B) any border security operation or law
enforcement activity by the Department of
Homeland Security or the Department of
Justice; or
(C) any law enforcement activity of any
Federal, State, or local law enforcement
agency in the Outstanding Natural Area.
(7) Future disposition of Coast Guard facilities
If the Commandant determines, after May 8,
2008, that Coast Guard facilities within the
Outstanding Natural Area exceed the needs of
the Coast Guard, the Commandant may relinquish the facilities to the Secretary without
removal, subject only to any environmental
remediation that may be required by law.
(e) Effect on ongoing and future Coast Guard operations
Nothing in this section, the management plan,
or the Jupiter Inlet Coordinated Resource Management Plan (including updates or amendments to the Jupiter Inlet Coordinated Resource
Management Plan) precludes, prohibits, or
otherwise affects ongoing or future Coast Guard
operations or activities in the Outstanding Natural Area, including—
(1) the continued and future operation of, access to, maintenance of, and, as may be necessitated for Coast Guard missions, the expansion, enhancement, or replacement of, the
Coast Guard High Frequency antenna site on
lot 16;
(2) the continued and future operation of, access to, maintenance of, and, as may be necessitated for Coast Guard missions, the expansion, enhancement, or replacement of, the
military family housing area on lot 18;
(3) the continued and future use of, access
to, maintenance of, and, as may be necessitated for Coast Guard missions, the expansion, enhancement, or replacement of, the pier
on lot 18;
(4) the existing lease of the Jupiter Inlet
Lighthouse on lot 18 from the Coast Guard to
the Loxahatchee River Historical Society; or
(5) any easements or other less-than-fee interests in property appurtenant to existing
Coast Guard facilities on lots 16 and 18.
(f) Authorization of appropriations
There are authorized to be appropriated such
sums as are necessary to carry out this section.

(Pub. L. 110–229, title II, § 202, May 8, 2008, 122
Stat. 763.)
REFERENCES IN TEXT
The Executive Order dated October 22, 1854, and Executive Order No. 4254 (June 12, 1925), referred to in subsec. (b)(4)(B)(i), (ii), were not classified to the Code.
The Federal Land Policy and Management Act of
1976, referred to in subsec. (d)(1)(A)(iii), is Pub. L.
94–579, Oct. 21, 1976, 90 Stat. 2743, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 1701 of this title and Tables.
CODIFICATION
Section was enacted as part of the Consolidated Natural Resources Act of 2008, and not as part of the Federal Land Policy and Management Act of 1976 which
comprises this chapter.

CHAPTER 36—OUTER CONTINENTAL SHELF
RESOURCE MANAGEMENT
Sec.

1801.
1802.

Congressional findings.
Congressional declaration of purposes.
SUBCHAPTER I—OFFSHORE OIL SPILL
POLLUTION FUND

1811 to 1824. Repealed.
SUBCHAPTER II—FISHERMEN’S CONTINGENCY
FUND
1841.
Definitions.
1842.
Fishermen’s Contingency Fund.
1843.
Duties and powers of Secretary.
1844.
Burden of proof.
1845.
Claims procedure.
1846, 1847. Repealed.
SUBCHAPTER III—MISCELLANEOUS PROVISIONS
1861.
1862.
1863.
1864.

1865.
1866.

Repealed.
Natural gas distribution.
Unlawful employment practices; regulations.
Disclosure of financial interests by officers
and employees of Department of the Interior.
Investigation of reserves of oil and gas in
Outer Continental Shelf.
Relationship to existing law.

§ 1801. Congressional findings
The Congress finds and declares that—
(1) the demand for energy in the United
States is increasing and will continue to increase for the foreseeable future;
(2) domestic production of oil and gas has declined in recent years;
(3) the United States has become increasingly dependent upon imports of oil from foreign nations to meet domestic energy demand;
(4) increasing reliance on imported oil is not
inevitable, but is rather subject to significant
reduction by increasing the development of
domestic sources of energy supply;
(5) consumption of natural gas in the United
States has greatly exceeded additions to domestic reserves in recent years;
(6) technology is or can be made available
which will allow significantly increased domestic production of oil and gas without
undue harm or damage to the environment;
(7) the Outer Continental Shelf contains significant quantities of oil and natural gas and
is a vital national resource reserve which
must be carefully managed so as to realize fair

§ 1802

TITLE 43—PUBLIC LANDS

value, to preserve and maintain competition,
and to reflect the public interest;
(8) there presently exists a variety of technological, economic, environmental, administrative, and legal problems which tend to retard the development of the oil and natural
gas reserves of the Outer Continental Shelf;
(9) environmental and safety regulations relating to activities on the Outer Continental
Shelf should be reviewed in light of current
technology and information;
(10) the development, processing, and distribution of the oil and gas resources of the
Outer Continental Shelf, and the siting of related energy facilities, may cause adverse impacts on various States and local governments;
(11) policies, plans, and programs developed
by States and local governments in response
to activities on the Outer Continental Shelf
cannot anticipate and ameliorate such adverse
impacts unless such States, working in close
cooperation with affected local governments,
are provided with timely access to information regarding activities on the Outer Continental Shelf and an opportunity to review
and comment on decisions relating to such activities;
(12) funds must be made available to pay for
the prompt removal of any oil spilled or discharged as a result of activities on the Outer
Continental Shelf and for any damages to public or private interests caused by such spills or
discharges;
(13) because of the possible conflicts between
exploitation of the oil and gas resources in the
Outer Continental Shelf and other uses of the
marine environment, including fish and shellfish growth and recovery, and recreational activity, the Federal Government must assume
responsibility for the minimization or elimination of any conflict associated with such exploitation;
(14) the oil and gas resources of the Outer
Continental Shelf are limited, nonrenewable
resources which must be developed in a manner which takes into consideration the Nation’s long-range energy needs and also assures adequate protection of the renewable resources of the Outer Continental Shelf which
are a continuing and increasingly important
source of food and protein to the Nation and
the world; and
(15) funds must be made available to pay for
damage to commercial fishing vessels and gear
resulting from activities involving oil and gas
exploration, development, and production on
the Outer Continental Shelf.
(Pub. L. 95–372, title I, § 101, Sept. 18, 1978, 92
Stat. 630.)
SHORT TITLE OF 1988 AMENDMENT
Pub. L. 100–610, title I, § 1, Nov. 5, 1988, 102 Stat. 3176,
provided that: ‘‘This Act [probably should be ‘This
title’, which amended section 1815 of this title] may be
cited as the ‘Outer Continental Shelf Operations Indemnification Clarification Act of 1988’.’’
SHORT TITLE
Pub. L. 95–372, § 1, Sept. 18, 1978, 92 Stat. 629, provided:
‘‘That this Act [enacting this chapter, sections 1344 to

Page 546

1356 of this title, and section 237 of Title 30, Mineral
Lands and Mining, amending sections 1331 to 1334, 1337,
1340, and 1343 of this title, sections 1456, 1456a, and 1464
of Title 16, Conservation, and section 6213 of Title 42,
The Public Health and Welfare, and enacting provisions
set out as notes under sections 1348 and 1811 of this
title] may be cited as the ‘Outer Continental Shelf
Lands Act Amendments of 1978’.’’

§ 1802. Congressional declaration of purposes
The purposes of this chapter are to—
(1) establish policies and procedures for managing the oil and natural gas resources of the
Outer Continental Shelf which are intended to
result in expedited exploration and development of the Outer Continental Shelf in order
to achieve national economic and energy policy goals, assure national security, reduce dependence on foreign sources, and maintain a
favorable balance of payments in world trade;
(2) preserve, protect, and develop oil and
natural gas resources in the Outer Continental
Shelf in a manner which is consistent with the
need (A) to make such resources available to
meet the Nation’s energy needs as rapidly as
possible, (B) to balance orderly energy resource development with protection of the
human, marine, and coastal environments, (C)
to insure the public a fair and equitable return
on the resources of the Outer Continental
Shelf, and (D) to preserve and maintain free
enterprise competition;
(3) encourage development of new and improved technology for energy resource production which will eliminate or minimize risk of
damage to the human, marine, and coastal environments;
(4) provide States, and through States, local
governments, which are impacted by Outer
Continental Shelf oil and gas exploration, development, and production with comprehensive assistance in order to anticipate and plan
for such impact, and thereby to assure adequate protection of the human environment;
(5) assure that States, and through States,
local governments, have timely access to information regarding activities on the Outer
Continental Shelf, and opportunity to review
and comment on decisions relating to such activities, in order to anticipate, ameliorate,
and plan for the impacts of such activities;
(6) assure that States, and through States,
local governments, which are directly affected
by exploration, development, and production
of oil and natural gas are provided an opportunity to participate in policy and planning
decisions relating to management of the resources of the Outer Continental Shelf;
(7) minimize or eliminate conflicts between
the exploration, development, and production
of oil and natural gas, and the recovery of
other resources such as fish and shellfish;
(8) establish an oilspill liability fund to pay
for the prompt removal of any oil spilled or
discharged as a result of activities on the
Outer Continental Shelf and for any damages
to public or private interests caused by such
spills or discharges;
(9) insure that the extent of oil and natural
gas resources of the Outer Continental Shelf is
assessed at the earliest practicable time; and
(10) establish a fishermen’s contingency fund
to pay for damages to commercial fishing ves-

Page 539

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

Except as specifically provided, nothing in this
chapter may be interpreted to prejudice any
otherwise applicable right, duty, privilege, or
immunity or deprive any country or person of
any remedy otherwise applicable.
(Pub. L. 93–248, § 15, Feb. 5, 1974, 88 Stat. 10; Pub.
L. 95–302, § 1(6), June 26, 1978, 92 Stat. 345.)
AMENDMENTS
1978—Pub. L. 95–302 inserted ‘‘, the protocol,’’ after
‘‘convention’’.
EFFECTIVE DATE OF 1978 AMENDMENT
For effective date of amendment by Pub. L. 95–302,
see section 2 of Pub. L. 95–302, set out as a note under
section 1487 of this title.

§ 1485. Rules and regulations
The Secretary may issue reasonable rules and
regulations which he considers appropriate and
necessary for the effective implementation of
this chapter.
(Pub. L. 93–248, § 16, Feb. 5, 1974, 88 Stat. 10.)
§ 1486. Oil Spill Liability Trust Fund
The Oil Spill Liability Trust Fund shall be
available to the Secretary for actions taken
under sections 1474 and 1476 of this title.
(Pub. L. 93–248, § 17, Feb. 5, 1974, 88 Stat. 10; Pub.
L. 101–380, title II, § 2001, Aug. 18, 1990, 104 Stat.
506.)
AMENDMENTS
1990—Pub. L. 101–380 amended section generally. Prior
to amendment, section read as follows: ‘‘The revolving
fund established under section 1321(k) of this title shall
be available to the Secretary for Federal actions and
activities under section 1474 of this title.’’
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by Pub. L. 101–380 applicable to incidents
occurring after Aug. 18, 1990, see section 1020 of Pub. L.
101–380, set out as an Effective Date note under section
2701 of this title.

§ 1487. Effective date
This chapter shall be effective upon February
5, 1974, or upon the date the convention becomes
effective as to the United States, whichever is
later.
(Pub. L. 93–248, § 18, Feb. 5, 1974, 88 Stat. 10.)
REFERENCES IN TEXT
The date the convention became effective as to the
United States, referred to in text, is May 6, 1975.
EFFECTIVE DATE OF 1978 AMENDMENT
Pub. L. 95–302, § 2, June 26, 1978, 92 Stat. 345, provided
that: ‘‘This Act [amending sections 1471 to 1473, 1479,
1482, and 1484 of this title] shall be effective upon the
date of enactment [June 26, 1978], or upon the date the
protocol becomes effective as to the United States,
whichever is later.’’ [The protocol was adopted by the
United States on Sept. 7, 1978, to be effective as to the
United States upon its adoption by 15 countries. The
protocol became effective as to the United States Mar.
30, 1983.

CHAPTER 29—DEEPWATER PORTS

Sec.

1502.
1503.
1504.
1505.
1506.
1507.
1508.
1509.
1510.
1511.
1512.
1513.
1514.
1515.
1516.
1517,
1518.
1519.
1520.
1521.
1522.
1523.

1524.

Definitions.
License for ownership, construction, and operation of deepwater port.
Procedure.
Environmental review criteria.
Repealed.
Common carrier status.
Adjacent coastal States.
Marine environmental protection and navigational safety.
International agreements.
Suspension or termination of licenses.
Recordkeeping and inspection.
Public access to information.
Remedies.
Citizen civil action.
Judicial review; persons aggrieved; jurisdiction of courts of appeal.
1517a. Repealed or Omitted.
Relationship to other laws.
Repealed.
Pipeline safety and operation.
Negotiations with Canada and Mexico; report
to Congress.
Limitations on export provisions of section
185(u) of title 30 unaffected.
General procedures; issuance and enforcement of orders; scope of authority; evidentiary matters.
Authorization of appropriations.

§ 1501. Congressional declaration of policy
(a) It is declared to be the purposes of the Congress in this chapter to—
(1) authorize and regulate the location, ownership, construction, and operation of deepwater ports in waters beyond the territorial
limits of the United States;
(2) provide for the protection of the marine
and coastal environment to prevent or minimize any adverse impact which might occur as
a consequence of the development of such
ports;
(3) protect the interests of the United States
and those of adjacent coastal States in the location, construction, and operation of deepwater ports;
(4) protect the rights and responsibilities of
States and communities to regulate growth,
determine land use, and otherwise protect the
environment in accordance with law;
(5) promote the construction and operation
of deepwater ports as a safe and effective
means of importing oil or natural gas into the
United States and transporting oil or natural
gas from the outer continental shelf 1 while
minimizing tanker traffic and the risks attendant thereto; and
(6) promote oil or natural gas production on
the outer continental shelf 1 by affording an
economic and safe means of transportation of
outer continental shelf 1 oil or natural gas to
the United States mainland.
(b) The Congress declares that nothing in this
chapter shall be construed to affect the legal
status of the high seas, the superjacent airspace,
or the seabed and subsoil, including the Continental Shelf.
(Pub. L. 93–627, § 2, Jan. 3, 1975, 88 Stat. 2126; Pub.
L. 104–324, title V, § 502(b), Oct. 19, 1996, 110 Stat.

Sec.

1501.

Congressional declaration of policy.

§ 1501

1 So

in original. Probably should be capitalized.

§ 1502

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

3925; Pub. L. 107–295, title I, § 106(a)(1), Nov. 25,
2002, 116 Stat. 2086.)
AMENDMENTS
2002—Subsec. (a)(5), (6). Pub. L. 107–295 inserted ‘‘or
natural gas’’ after ‘‘oil’’ wherever appearing.
1996—Subsec. (a)(5), (6). Pub. L. 104–324 added pars. (5)
and (6).
SHORT TITLE OF 1996 AMENDMENT
Pub. L. 104–324, title V, § 501, Oct. 19, 1996, 110 Stat.
3925, provided that: ‘‘This title [amending this section
and sections 1502 to 1504, 1507, and 1509 of this title, repealing section 1506 of this title, and enacting provisions set out as a note under this section] may be cited
as the ‘Deepwater Port Modernization Act’.’’
SHORT TITLE OF 1984 AMENDMENT
Pub. L. 98–419, § 1, Sept. 25, 1984, 98 Stat. 1607, provided: ‘‘That this Act [amending sections 1502, 1503,
1504, 1506, 1507, 1517, and 1518 of this title and enacting
provisions set out as a note under section 1518 of this
title] may be cited as the ‘Deepwater Port Act Amendments of 1984’.’’
SHORT TITLE
Pub. L. 93–627, § 1, Jan. 3, 1975, 88 Stat. 2126, provided:
‘‘That this Act [enacting this chapter and amending
section 1333 of Title 43, Public Lands] may be cited as
the ‘Deepwater Port Act of 1974’.’’
CONGRESSIONAL PURPOSES FOR 1996 AMENDMENTS
Pub. L. 104–324, title V, § 502(a), Oct. 19, 1996, 110 Stat.
3925, provided that: ‘‘The purposes of this title [see
Short Title of 1996 Amendment note above] are to—
‘‘(1) update and improve the Deepwater Port Act of
1974 [33 U.S.C. 1501 et seq.];
‘‘(2) assure that the regulation of deepwater ports is
not more burdensome or stringent than necessary in
comparison to the regulation of other modes of importing or transporting oil;
‘‘(3) recognize that deepwater ports are generally
subject to effective competition from alternative
transportation modes and eliminate, for as long as a
port remains subject to effective competition, unnecessary Federal regulatory oversight or involvement
in the ports’ business and economic decisions; and
‘‘(4) promote innovation, flexibility, and efficiency
in the management and operation of deepwater ports
by removing or reducing any duplicative, unnecessary, or overly burdensome Federal regulations or license provisions.’’
DEPOSIT OF CERTAIN PENALTIES INTO OIL SPILL
LIABILITY TRUST FUND
Penalties paid pursuant to this chapter and sections
1319(c) and 1321 of this title to be deposited in the Oil
Spill Liability Trust Fund created under section 9509 of
Title 26, Internal Revenue Code, see section 4304 of Pub.
L. 101–380, set out as a note under section 9509 of Title
26.
ENVIRONMENTAL EFFECTS ABROAD OF MAJOR FEDERAL
ACTIONS
For provisions relating to environmental effects
abroad of major Federal actions, see Ex. Ord. No. 12114,
Jan. 4, 1979, 44 F.R. 1957, set out as a note under section
4321 of Title 42, The Public Health and Welfare.

§ 1502. Definitions
As used in this chapter, unless the context
otherwise requires, the term—
(1) ‘‘adjacent coastal State’’ means any
coastal State which (A) would be directly connected by pipeline to a deepwater port, as proposed in an application; (B) would be located

Page 540

within 15 miles of any such proposed deepwater port; or (C) is designated by the Secretary in accordance with section 1508(a)(2) of
this title;
(2) ‘‘affiliate’’ means any entity owned or
controlled by, any person who owns or controls, or any entity which is under common
ownership or control with an applicant, licensee, or any person required to be disclosed
pursuant to section 1504(c)(2)(A) or (B) of this
title;
(3) ‘‘application’’ means an application submitted under this Act for a license for the
ownership, construction, and operation of a
deepwater port;
(4) ‘‘citizen of the United States’’ means any
person who is a United States citizen by law,
birth, or naturalization, any State, any agency of a State or a group of States, or any corporation, partnership, or association organized
under the laws of any State which has as its
president or other executive officer and as its
chairman of the board of directors, or holder
of a similar office, a person who is a United
States citizen by law, birth or naturalization
and which has no more of its directors who are
not United States citizens by law, birth or
naturalization than constitute a minority of
the number required for a quorum necessary
to conduct the business of the board;
(5) ‘‘coastal environment’’ means the navigable waters (including the lands therein and
thereunder) and the adjacent shorelines including 1 waters therein and thereunder). The
term includes transitional and intertidal
areas, bays, lagoons, salt marshes, estuaries,
and beaches; the fish, wildlife and other living
resources thereof; and the recreational and
scenic values of such lands, waters and resources;
(6) ‘‘coastal State’’ means any State of the
United States in or bordering on the Atlantic,
Pacific, or Arctic Oceans, or the Gulf of Mexico;
(7) ‘‘construction’’ means the supervising,
inspection, actual building, and all other activities incidental to the building, repairing,
or expanding of a deepwater port or any of its
components, including, but not limited to, pile
driving and bulkheading, and alterations,
modifications, or additions to the deepwater
port;
(8) ‘‘control’’ means the power, directly or
indirectly, to determine the policy, business
practices, or decisionmaking process of another person, whether by stock or other ownership interest, by representation on a board
of directors or similar body, by contract or
other agreement with stockholders or others,
or otherwise;
(9) ‘‘deepwater port’’—
(A) means any fixed or floating manmade
structure other than a vessel, or any group
of such structures, that are located beyond
State seaward boundaries and that are used
or intended for use as a port or terminal for
the transportation, storage, or further handling of oil or natural gas for transportation
1 So in original. Probably should be preceded by an opening parenthesis.

Page 541

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

to or from any State, except as otherwise
provided in section 1522 of this title, and for
other uses not inconsistent with the purposes of this chapter, including transportation of oil or natural gas from the United
States outer continental shelf;
(B) includes all components and equipment, including pipelines, pumping stations,
service platforms, buoys, mooring lines, and
similar facilities to the extent they are located seaward of the high water mark;
(C) in the case of a structure used or intended for such use with respect to natural
gas, includes all components and equipment,
including pipelines, pumping or compressor
stations, service platforms, buoys, mooring
lines, and similar facilities that are proposed
or approved for construction and operation
as part of a deepwater port, to the extent
that they are located seaward of the high
water mark and do not include interconnecting facilities; and
(D) shall be considered a ‘‘new source’’ for
purposes of the Clean Air Act (42 U.S.C. 7401
et seq.), and the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.);
(10) ‘‘Governor’’ means the Governor of a
State or the person designated by State law to
exercise the powers granted to the Governor
pursuant to this chapter;
(11) ‘‘licensee’’ means a citizen of the United
States holding a valid license for the ownership, construction, and operation of a deepwater port that was issued, transferred, or renewed pursuant to this chapter;
(12) ‘‘marine environment’’ includes the
coastal environment, waters of the contiguous
zone, and waters of the high seas; the fish,
wildlife, and other living resources of such waters; and the recreational and scenic values of
such waters and resources;
(13) ‘‘natural gas’’ means either natural gas
unmixed, or any mixture of natural or artificial gas, including compressed or liquefied
natural gas, natural gas liquids, liquefied petroleum gas, and condensate recovered from
natural gas;
(14) ‘‘oil’’ means petroleum, crude oil, and
any substance refined from petroleum or crude
oil;
(15) ‘‘person’’ includes an individual, a public
or private corporation, a partnership or other
association, or a government entity;
(16) ‘‘safety zone’’ means the safety zone established around a deepwater port as determined by the Secretary in accordance with
section 1509(d) of this title;
(17) ‘‘Secretary’’ means the Secretary of
Transportation;
(18) ‘‘State’’ includes each of the States of
the United States, the District of Columbia,
the Commonwealth of Puerto Rico, and the
territories and possessions of the United
States; and
(19) ‘‘vessel’’ means every description of
watercraft or other artificial contrivance used
as a means of transportation on or through
the water.
(Pub. L. 93–627, § 3, Jan. 3, 1975, 88 Stat. 2127; Pub.
L. 98–419, § 2(a), Sept. 25, 1984, 98 Stat. 1607; Pub.

§ 1502

L. 104–324, title V, § 503, Oct. 19, 1996, 110 Stat.
3926; Pub. L. 107–295, title I, § 106(b), Nov. 25, 2002,
116 Stat. 2086; Pub. L. 109–58, title III, § 321(b),
Aug. 8, 2005, 119 Stat. 694; Pub. L. 112–213, title
III, § 312, Dec. 20, 2012, 126 Stat. 1569.)
REFERENCES IN TEXT
The Clean Air Act, referred to in par. (9)(D), is act
July 14, 1955, ch. 360, 69 Stat. 322, as amended, which is
classified generally to chapter 85 (§ 7401 et seq.) of Title
42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note
set out under section 7401 of Title 42 and Tables.
The Federal Water Pollution Control Act, as amended, referred to in par. (9)(D), is act June 30, 1948, ch. 758,
as amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972,
86 Stat. 816, which is classified generally to chapter 26
(§ 1251 et seq.) of this title. For complete classification
of this Act to the Code, see Short Title note set out
under section 1251 of this title and Tables.
AMENDMENTS
2012—Par. (9)(A). Pub. L. 112–213 inserted ‘‘or from’’
before ‘‘any State’’.
2005—Par. (13). Pub. L. 109–58 inserted ‘‘, natural gas
liquids, liquefied petroleum gas, and condensate recovered from natural gas’’ before semicolon at end.
2002—Par. (9). Pub. L. 107–295, § 106(b)(2), amended par.
(9) generally. Prior to amendment, par. (9) read as follows: ‘‘ ‘deepwater port’ means any fixed or floating
manmade structures other than a vessel, or any group
of structures, located beyond the territorial sea and off
the coast of the United States and which are used or intended for use as a port or terminal for the transportation, storage, and further handling of oil for transportation to any State, except as otherwise provided in
section 1522 of this title, and for other uses not inconsistent with the purposes of this chapter, including
transportation of oil from the United States outer continental shelf. The term includes all associated components and equipment, including pipelines, pumping stations, service platforms, mooring buoys, and similar
appurtenances to the extent they are located seaward
of the high water mark. A deepwater port shall be considered a ‘new source’ for purposes of the Clean Air Act,
as amended, and the Federal Water Pollution Control
Act, as amended;’’.
Pars. (13) to (19). Pub. L. 107–295, § 106(b)(1), (3), added
par. (13) and redesignated former pars. (13) to (18) as (14)
to (19), respectively.
1996—Pars. (3) to (8). Pub. L. 104–324, § 503(a), redesignated pars. (4) to (9) as (3) to (8), respectively, and
struck out former par. (3) which read as follows: ‘‘ ‘antitrust laws’ includes the Act of July 2, 1890, as amended,
the Act of October 15, 1914, as amended, the Federal
Trade Commission Act (15 U.S.C. 41 et seq.), and sections 73 and 74 of the Act of August 27, 1894, as amended;’’.
Par. (9). Pub. L. 104–324, § 503(a)(2), (b), redesignated
par. (10) as (9) and substituted ‘‘structures, located beyond the territorial sea and off the coast of the United
States and which are used or intended for use as a port
or terminal for the transportation, storage, and further
handling of oil for transportation to any State, except
as otherwise provided in section 1522 of this title, and
for other uses not inconsistent with the purposes of
this chapter, including transportation of oil from the
United States outer continental shelf.’’ for ‘‘such structures, located beyond the territorial sea and off the
coast of the United States and which are used or intended for use as a port or terminal for the loading or
unloading and further handling of oil for transportation to any State, except as otherwise provided in
section 1522 of this title.’’ Former par. (9) redesignated
(8).
Pars. (10) to (19). Pub. L. 104–324, § 503(a)(2), redesignated pars. (11) to (19) as (10) to (18), respectively.
Former par. (10) redesignated (9).
1984—Par. (4). Pub. L. 98–419 substituted ‘‘means an
application’’ for ‘‘means any application’’, struck out

§ 1503

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

designation ‘‘(A)’’ before ‘‘for a license’’, and struck out
cls. (B) and (C) which provided that ‘‘application’’
meant any application submitted under this chapter for
transfer of any license referred to in this paragraph, or
for any substantial change in any of the conditions and
provisions of any such license.
TERRITORIAL SEA AND CONTIGUOUS ZONE OF UNITED
STATES
For extension of territorial sea and contiguous zone
of United States, see Proc. No. 5928 and Proc. No. 7219,
respectively, set out as notes under section 1331 of Title
43, Public Lands.

§ 1503. License for ownership, construction, and
operation of deepwater port
(a) Requirement
No person may engage in the ownership, construction, or operation of a deepwater port except in accordance with a license issued pursuant to this chapter. No person may transport or
otherwise transfer any oil or natural gas between a deepwater port and the United States
unless such port has been so licensed and the license is in force.
(b) Issuance, transfer, amendment, or reinstatement
The Secretary may—
(1) on application, issue a license for the
ownership, construction, and operation of a
deepwater port; and
(2) on petition of the licensee, amend, transfer, or reinstate a license issued under this
chapter.
(c) Conditions for issuance
The Secretary may issue a license in accordance with the provisions of this chapter if—
(1) he determines that the applicant is financially responsible and will meet the requirements of section 2716 of this title 1
(2) he determines that the applicant can and
will comply with applicable laws, regulations,
and license conditions;
(3) he determines that the construction and
operation of the deepwater port will be in the
national interest and consistent with national
security and other national policy goals and
objectives, including energy sufficiency and
environmental quality;
(4) he determines that the deepwater port
will not unreasonably interfere with international navigation or other reasonable uses
of the high seas, as defined by treaty, convention, or customary international law;
(5) he determines, in accordance with the environmental review criteria established pursuant to section 1505 of this title, that the applicant has demonstrated that the deepwater
port will be constructed and operated using
best available technology, so as to prevent or
minimize adverse impact on the marine environment;
(6) he has not been informed, within 45 days
of the last public hearing on a proposed license
for a designated application area, by the Administrator of the Environmental Protection
Agency that the deepwater port will not conform with all applicable provisions of the
1 So

in original. Probably should be followed by a semicolon.

Page 542

Clean Air Act, as amended [42 U.S.C. 7401 et
seq.], the Federal Water Pollution Control
Act, as amended [33 U.S.C. 1251 et seq.], or the
Marine Protection, Research and Sanctuaries
Act, as amended [16 U.S.C. 1431 et seq., 1447 et
seq.; 33 U.S.C. 1401 et seq., 2801 et seq.];
(7) he has consulted with the Secretary of
the Army, the Secretary of State, and the Secretary of Defense, to determine their views on
the adequacy of the application, and its effect
on programs within their respective jurisdictions;
(8) the Governor of the adjacent coastal
State of States, pursuant to section 1508 of
this title, approves, or is presumed to approve,
issuance of the license; and
(9) the adjacent coastal State to which the
deepwater port is to be directly connected by
pipeline has developed, or is making, at the
time the application is submitted, reasonable
progress, as determined in accordance with
section 1508(c) of this title, toward developing,
an approved coastal zone management program pursuant to the Coastal Zone Management Act of 1972 [16 U.S.C. 1451 et seq.].
(d) Application for license subject to examination and comparison of economic, social, and
environmental effects of deepwater port facility and deep draft channel and harbor; finality of determination
If an application is made under this chapter
for a license to construct a deepwater port facility off the coast of a State, and a port of the
State which will be directly connected by pipeline with such deepwater port, on the date of
such application—
(1) has existing plans for construction of a
deep draft channel and harbor; and
(2) has either (A) an active study by the Secretary of the Army relating to the construction of a deep draft channel and harbor, or (B)
a pending application for a permit under section 403 of this title for such construction; and
(3) applies to the Secretary for a determination under this section within 30 days of the
date of the license application;
the Secretary shall not issue a license under
this chapter until he has examined and compared the economic, social, and environmental
effects of the construction and operation of the
deepwater port with the economic, social and
environmental effects of the construction, expansion, deepening, and operation of such State
port, and has determined which project best
serves the national interest or that both developments are warranted. The Secretary’s determination shall be discretionary and nonreviewable.
(e) Additional conditions; removal requirements,
waiver; Outer Continental Shelf Lands Act
applicable to utilization of components upon
waiver of removal requirements
(1) In issuing a license for the ownership, construction, and operation of a deepwater port, the
Secretary shall prescribe those conditions which
the Secretary deems necessary to carry out the
provisions and requirements of this chapter 2 or
2 See

References in Text note below.

Page 543

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

which are otherwise required by any Federal department or agency pursuant to the terms of
this chapter.2 To the extent practicable, conditions required to carry out the provisions and
requirements of this chapter 2 shall be addressed
in license conditions rather than by regulation
and, to the extent practicable, the license shall
allow a deepwater port’s operating procedures to
be stated in an operations manual, approved by
the Coast Guard, in accordance with section
1509(a) of this title, rather than in detailed and
specific license conditions or regulations; except
that basic standards and conditions shall be addressed in regulations. On petition of a licensee,
the Secretary shall review any condition of a license issued under this chapter to determine if
that condition is uniform, insofar as practicable,
with the conditions of other licenses issued
under this chapter, reasonable, and necessary to
meet the objectives of this chapter. The Secretary shall amend or rescind any condition that
is no longer necessary or otherwise required by
any Federal department or agency under this
chapter.
(2) No license shall be issued, transferred, or
renewed under this chapter unless the licensee
or transferee first agrees in writing that (A)
there will be no substantial change from the
plans, operational systems, and methods, procedures, and safeguards set forth in his license, as
approved, without prior approval in writing
from the Secretary; and (B) he will comply with
any condition the Secretary may prescribe in
accordance with the provisions of this chapter.
(3) The Secretary shall establish such bonding
requirements or other assurances as he deems
necessary to assure that, upon the revocation or
termination of a license, the licensee will remove all components of the deepwater port. In
the case of components lying in the subsoil
below the seabed, the Secretary is authorized to
waive the removal requirements if he finds that
such removal is not otherwise necessary and
that the remaining components do not constitute any threat to navigation or to the environment. At the request of the licensee, the Secretary, after consultation with the Secretary of
the Interior, is authorized to waive the removal
requirement as to any components which he determines may be utilized in connection with the
transportation of oil, natural gas, or other minerals, pursuant to a lease granted under the provisions of the Outer Continental Shelf Lands
Act [43 U.S.C. 1331 et seq.], after which waiver
the utilization of such components shall be governed by the terms of the Outer Continental
Shelf Lands Act.
(f) Amendments, transfers, and reinstatements
The Secretary may amend, transfer, or reinstate a license issued under this chapter 2 if the
Secretary finds that the amendment, transfer,
or reinstatement is consistent with the requirements of this chapter.
(g) Eligible citizens
Any citizen of the United States who otherwise qualifies under the terms of this chapter
shall be eligible to be issued a license for the
ownership, construction, and operation of a
deepwater port.

§ 1503

(h) Term of license
A license issued under this chapter remains in
effect unless suspended or revoked by the Secretary or until surrendered by the licensee.
(i) Liquefied natural gas facilities
To promote the security of the United States,
the Secretary shall give top priority to the processing of a license under this chapter for liquefied natural gas facilities that will be supplied
with liquefied natural gas by United States flag
vessels.
(Pub. L. 93–627, § 4, Jan. 3, 1975, 88 Stat. 2128; Pub.
L. 98–419, § 2(b)–(e), Sept. 25, 1984, 98 Stat. 1607;
Pub. L. 101–380, title II, § 2003(a)(1), Aug. 18, 1990,
104 Stat. 507; Pub. L. 104–324, title V, § 504, Oct.
19, 1996, 110 Stat. 3926; Pub. L. 107–295, title I,
§ 106(a)(2), Nov. 25, 2002, 116 Stat. 2086; Pub. L.
109–241, title III, § 304(b), July 11, 2006, 120 Stat.
527.)
REFERENCES IN TEXT
The Clean Air Act, referred to in subsec. (c)(6), is act
July 14, 1955, ch. 360, 69 Stat. 322, as amended, which is
classified generally to chapter 85 (§ 7401 et seq.) of Title
42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note
set out under section 7401 of Title 42 and Tables.
The Federal Water Pollution Control Act, as amended, referred to in subsec. (c)(6), is act June 30, 1948, ch.
758, as amended generally by Pub. L. 92–500, § 2, Oct. 18,
1972, 86 Stat. 816, which is classified generally to chapter 26 (§ 1251 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note
set out under section 1251 of this title and Tables.
The Marine Protection, Research and Sanctuaries
Act, referred to subsec. (c)(6), probably means Pub. L.
92–532, Oct. 23, 1972, 86 Stat. 1052, as amended, known as
the Marine Protection, Research, and Sanctuaries Act
of 1972, which is classified generally to chapters 27
(§ 1401 et seq.) and 41 (§ 2801 et seq.) of this title and
chapters 32 (§ 1431 et seq.) and 32A (§ 1447 et seq.) of Title
16, Conservation. For complete classification of this
Act to the Code, see Short Title note set out under section 1401 of this title and Tables.
The Coastal Zone Management Act of 1972, referred to
in subsec. (c)(9), is title III of Pub. L. 89–454, as added
by Pub. L. 92–583, Oct. 27, 1972, 86 Stat. 1280, as amended, which is classified generally to chapter 33 (§ 1451 et
seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set
out under section 1451 of Title 16 and Tables.
This chapter, referred to first three times in subsec.
(e)(1) and first time in subsec. (f), was in the original
‘‘this title’’ and was translated as reading ‘‘this Act’’,
meaning Pub. L. 93–627, which is classified generally to
this chapter, to reflect the probable intent of Congress,
because Pub. L. 93–627 does not contain titles.
The Outer Continental Shelf Lands Act, referred to in
subsec. (e)(3), is act Aug. 7, 1953, ch. 345, 67 Stat. 462, as
amended, which is classified generally to subchapter III
(§ 1331 et seq.) of chapter 29 of Title 43, Public Lands.
For complete classification of this Act to the Code, see
Short Title note set out under section 1331 of Title 43
and Tables.
AMENDMENTS
2006—Subsec. (i). Pub. L. 109–241 added subsec. (i).
2002—Subsec. (a). Pub. L. 107–295 inserted ‘‘or natural
gas’’ after ‘‘oil’’.
1996—Subsec. (a). Pub. L. 104–324, § 504(a), struck out
at end ‘‘A deepwater port, licensed pursuant to the provisions of this chapter, may not be utilized—
‘‘(1) for the loading and unloading of commodities
or materials (other than oil) transported from the
United States, other than materials to be used in the

§ 1504

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

construction, maintenance, or operation of the high
seas oil port, to be used as ship supplies, including
bunkering for vessels utilizing the high seas oil port,
‘‘(2) for the transshipment of commodities or materials, to the United States, other than oil,
‘‘(3) except in cases where the Secretary otherwise
by rule provides, for the transshipment of oil, destined for locations outside the United States.’’
Subsec. (c)(7) to (10). Pub. L. 104–324, § 504(b), redesignated pars. (8) to (10) as (7) to (9), respectively, and
struck out former par. (7) which read as follows: ‘‘he
has received the opinions of the Federal Trade Commission and the Attorney General, pursuant to section 1506
of this title, as to whether issuance of the license would
adversely affect competition, restrain trade, promote
monopolization, or otherwise create a situation in contravention of the antitrust laws;’’.
Subsec. (e)(1). Pub. L. 104–324, § 504(c), substituted ‘‘In
issuing a license for the ownership, construction, and
operation of a deepwater port, the Secretary shall prescribe those conditions which the Secretary deems necessary to carry out the provisions and requirements of
this chapter or which are otherwise required by any
Federal department or agency pursuant to the terms of
this chapter. To the extent practicable, conditions required to carry out the provisions and requirements of
this chapter shall be addressed in license conditions
rather than by regulation and, to the extent practicable, the license shall allow a deepwater port’s operating procedures to be stated in an operations manual,
approved by the Coast Guard, in accordance with section 1509(a) of this title, rather than in detailed and
specific license conditions or regulations; except that
basic standards and conditions shall be addressed in
regulations.’’ for ‘‘In issuing a license for the ownership, construction, and operation of a deepwater port,
the Secretary shall prescribe any conditions which he
deems necessary to carry out the provisions of this
chapter, or which are otherwise required by any Federal department or agency pursuant to the terms of
this chapter.’’
Subsec. (e)(2). Pub. L. 104–324, § 504(d), substituted
‘‘his license’’ for ‘‘his application’’.
Subsec. (f). Pub. L. 104–324, § 504(e), inserted heading
and amended text generally. Prior to amendment, text
read as follows: ‘‘The Secretary may amend, transfer,
or reinstate a license issued under this chapter if the
amendment, transfer, or reinstatement is consistent
with the findings made at the time the license was issued.’’
1990—Subsec. (c)(1). Pub. L. 101–380 substituted ‘‘section 2716 of this title’’ for ‘‘section 1517(l) of this title;’’.
1984—Subsec. (b). Pub. L. 98–419, § 2(b), substituted
provisions authorizing the Secretary, on application, to
issue a license for the ownership, construction, and operation of a deepwater port and, on petition of the licensee, to amend, transfer, or reinstate a license issued
under this chapter for provisions which had authorized
the Secretary, upon application and in accordance with
the provisions of this chapter, to issue, transfer,
amend, or renew a license for the ownership, construction, and operation of a deepwater port.
Subsec. (e)(1). Pub. L. 98–419, § 2(e), inserted provision
that on petition of a licensee, the Secretary shall review any condition of a license issued under this chapter to determine if that condition is uniform, insofar as
practicable, with the conditions of other licenses issued
under this chapter and is reasonable, and necessary to
meet the objectives of this chapter, and that the Secretary shall amend or rescind any condition that is no
longer necessary or otherwise required by any Federal
department or agency under this chapter.
Subsec. (f). Pub. L. 98–419, § 2(c), substituted provisions authorizing the Secretary to amend, transfer, or
reinstate a license issued under this chapter if the
amendment, transfer, or reinstatement is consistent
with the findings made at the time the license was issued for provisions which had authorized the Secretary
to transfer such licenses if the Secretary determined
that such transfer was in the public interest and that

Page 544

the transferee met the requirements of this chapter and
the prerequisites to issuance under subsec. (c) of this
section.
Subsec. (h). Pub. L. 98–419, § 2(d), substituted provision that a license issued under this chapter remain in
effect unless suspended or revoked by the Secretary or
until surrendered by the licensee for provisions which
had limited the terms of licenses to not more than 20
years and which had granted each licensee a preferential right of renewal for not more than 10 years,
subject to subsec. (c), upon such conditions and for
such term as determined by the Secretary to be reasonable and appropriate.
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by Pub. L. 101–380 applicable to incidents
occurring after Aug. 18, 1990, see section 1020 of Pub. L.
101–380, set out as an Effective Date note under section
2701 of this title.
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and
assets of the Coast Guard, including the authorities
and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections
468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set
out as a note under section 542 of Title 6.
LNG TANKERS
Pub. L. 109–241, title III, § 304(a), July 11, 2006, 120
Stat. 527, provided that: ‘‘The Secretary of Transportation shall develop and implement a program to promote the transportation of liquefied natural gas to the
United States on United States flag vessels.’’

§ 1504. Procedure
(a) Regulations; issuance, amendment, or rescission; scope
The Secretary shall, as soon as practicable
after January 3, 1975, and after consultation
with other Federal agencies, issue regulations to
carry out the purposes and provisions of this
chapter in accordance with the provisions of section 553 of title 5, without regard to subsection
(a) thereof. Such regulations shall pertain to,
but need not be limited to, application, issuance, transfer, renewal, suspension, and termination of licenses. Such regulations shall provide for full consultation and cooperation with
all other interested Federal agencies and departments and with any potentially affected coastal
State, and for consideration of the views of any
interested members of the general public. The
Secretary is further authorized, consistent with
the purposes and provisions of this chapter, to
amend or rescind any such regulation.
(b) Additional regulations; criteria for site evaluation and preconstruction testing
The Secretary, in consultation with the Secretary of the Interior and the Administrator of
the National Oceanic and Atmospheric Administration, shall, as soon as practicable after January 3, 1975, prescribe regulations relating to
those activities involved in site evaluation and
preconstruction testing at potential deepwater
port locations that may (1) adversely affect the
environment; (2) interfere with authorized uses
of the Outer Continental Shelf; or (3) pose a
threat to human health and welfare. Such activity may thenceforth not be undertaken except

Page 545

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

in accordance with regulations prescribed pursuant to this subsection. Such regulations shall be
consistent with the purposes of this chapter.
(c) Plans; submittal to Secretary of Transportation; publication in Federal Register; application contents; exemption
(1) Any person making an application under
this chapter shall submit detailed plans to the
Secretary. Within 21 days after the receipt of an
application, the Secretary shall determine
whether the application appears to contain all
of the information required by paragraph (2)
hereof. If the Secretary determines that such information appears to be contained in the application, the Secretary shall, no later than 5 days
after making such a determination, publish notice of the application and a summary of the
plans in the Federal Register. If the Secretary
determines that all of the required information
does not appear to be contained in the application, the Secretary shall notify the applicant
and take no further action with respect to the
application until such deficiencies have been
remedied.
(2) Each application shall include such financial, technical, and other information as the
Secretary deems necessary or appropriate. Such
information shall include, but need not be limited to—
(A) the name, address, citizenship, telephone
number, and the ownership interest in the applicant, of each person having any ownership
interest in the applicant of greater than 3 per
centum;
(B) to the extent feasible, the name, address,
citizenship, and telephone number of any person with whom the applicant has made, or proposes to make, a significant contract for the
construction or operation of the deepwater
port and a copy of any such contract;
(C) the name, address, citizenship, and telephone number of each affiliate of the applicant
and of any person required to be disclosed pursuant to subparagraphs (A) or (B) of this paragraph, together with a description of the manner in which such affiliate is associated with
the applicant or any person required to be disclosed under subparagraph (A) or (B) of this
paragraph;
(D) the proposed location and capacity of the
deepwater port, including all components
thereof;
(E) the type and design of all components of
the deepwater port and any storage facilities
associated with the deepwater port;
(F) with respect to construction in phases, a
detailed description of each phase, including
anticipated dates of completion for each of the
specific components thereof;
(G) the location and capacity of existing and
proposed storage facilities and pipelines which
will store or transport oil transported through
the deepwater port, to the extent known by
the applicant or any person required to be disclosed pursuant to subparagraphs (A), (B), or
(C) of this paragraph;
(H) with respect to any existing and proposed refineries which will receive oil transported through the deepwater port, the location and capacity of each such refinery and

§ 1504

the anticipated volume of such oil to be refined by each such refinery, to the extent
known by the applicant or any person required
to be disclosed pursuant to subparagraphs (A),
(B), or (C) of this paragraph;
(I) the financial and technical capabilities of
the applicant to construct or operate the deepwater port;
(J) other qualifications of the applicant to
hold a license under this chapter;
(K) the nation of registry for, and the nationality or citizenship of officers and crew
serving on board, vessels transporting natural
gas that are reasonably anticipated to be servicing the deepwater port;
(L) a description of procedures to be used in
constructing, operating, and maintaining the
deepwater port, including systems of oil spill
prevention, containment, and cleanup; and
(M) such other information as may be required by the Secretary to determine the environmental impact of the proposed deepwater
port.
(3) Upon written request of any person subject
to this subsection, the Secretary may make a
determination in writing to exempt such person
from any of the informational filing provisions
enumerated in this subsection or the regulations
implementing this section if the Secretary determines that such information is not necessary
to facilitate the Secretary’s determinations
under section 1503 of this title and that such exemption will not limit public review and evaluation of the deepwater port project.
(d) Application area; publication in Federal Register; ‘‘application area’’ defined; submission
of other applications; notice of intent and
submission of completed applications; denial
of pending application prior to consideration
of other untimely applications
(1) At the time notice of an application is published pursuant to subsection (c) of this section,
the Secretary shall publish a description in the
Federal Register of an application area encompassing the deepwater port site proposed by such
application and within which construction of
the proposed deepwater port would eliminate, at
the time such application was submitted, the
need for any other deepwater port within that
application area.
(2) As used in this section, ‘‘application area’’
means any reasonable geographical area within
which a deepwater port may be constructed and
operated. Such application area shall not exceed
a circular zone, the center of which is the principal point of loading and unloading at the port,
and the radius of which is the distance from
such point to the high water mark of the nearest
adjacent coastal State.
(3) The Secretary shall accompany such publication with a call for submission of any other
applications for licenses for the ownership, construction, and operation of a deepwater port
within the designated application area. Persons
intending to file applications for such license
shall submit a notice of intent to file an application with the Secretary not later than 60 days
after the publication of notice pursuant to subsection (c) of this section and shall submit the
completed application no later than 90 days

§ 1504

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

after publication of such notice. The Secretary
shall publish notice of any such application received in accordance with subsection (c) of this
section. No application for a license for the ownership, construction, and operation of a deepwater port within the designated application
area for which a notice of intent to file was received after such 60-day period, or which is received after such 90-day period has elapsed, shall
be considered until the application pending with
respect to such application area have been denied pursuant to this chapter.
(4) This subsection shall not apply to deepwater ports for natural gas.
(e) Recommendations to Secretary of Transportation; application for all Federal authorizations; copies of application to Federal agencies and departments with jurisdiction; recommendation of approval or disapproval and
of manner of amendment to comply with
laws or regulations
(1) Not later than 30 days after January 3, 1975,
the Secretary of the Interior, the Administrator
of the Environmental Protection Agency, the
Chief of Engineers of the United States Army
Corps of Engineers, the Administrator of the National Oceanic and Atmospheric Administration,
and the heads of any other Federal department
or agencies having expertise concerning, or jurisdiction over, any aspect of the construction
or operation of deepwater ports shall transmit
to the Secretary written comments as to their
expertise or statutory responsibilities pursuant
to this chapter or any other Federal law.
(2) An application filed with the Secretary
shall constitute an application for all Federal
authorizations required for ownership, construction, and operation of a deepwater port. At the
time notice of any application is published pursuant to subsection (c) of this section, the Secretary shall forward a copy of such application
to those Federal agencies and departments with
jurisdiction over any aspect of such ownership,
construction, or operation for comment, review,
or recommendation as to conditions and for
such other action as may be required by law.
Each agency or department involved shall review the application and, based upon legal considerations within its area of responsibility, recommend to the Secretary, the approval or disapproval of the application not later than 45
days after the last public hearing on a proposed
license for a designated application area. In any
case in which the agency or department recommends disapproval, it shall set forth in detail
the manner in which the application does not
comply with any law or regulation within its
area of responsibility and shall notify the Secretary how the application may be amended so
as to bring it into compliance with the law or
regulation involved.
(f) NEPA compliance
For all applications, the Secretary, in cooperation with other involved Federal agencies
and departments, shall comply with the National Environmental Policy Act of 1969 (42
U.S.C. 4332) [42 U.S.C. 4321 et seq.]. Such compliance shall fulfill the requirement of all Federal
agencies in carrying out their responsibilities
under the National Environmental Policy Act of
1969 pursuant to this chapter.

Page 546

(g) Public notice and hearings; evidentiary hearing in District of Columbia; decision of Secretary based on evidentiary record; consolidation of hearings
A license may be issued only after public notice and public hearings in accordance with this
subsection. At least one such public hearing
shall be held in each adjacent coastal State. Any
interested person may present relevant material
at any hearing. After hearings in each adjacent
coastal State are concluded if the Secretary determines that there exists one or more specific
and material factual issues which may be resolved by a formal evidentiary hearing, at least
one adjudicatory hearing shall be held in accordance with the provisions of section 554 of title 5
in the District of Columbia. The record developed in any such adjudicatory hearing shall be
basis for the Secretary’s decision to approve or
deny a license. Hearings held pursuant to this
subsection shall be consolidated insofar as practicable with hearings held by other agencies. All
public hearings on all applications for any designated application area shall be consolidated
and shall be concluded not later than 240 days
after notice of the initial application has been
published pursuant to subsection (c) of this section.
(h) Nonrefundable application fee; processing
costs; State fees; ‘‘land-based facilities directly related to a deepwater port facility’’
defined; fair market rental value, advance
payment
(1) Each person applying for a license pursuant
to this chapter shall remit to the Secretary at
the time the application is filed a nonrefundable
application fee established by regulation by the
Secretary. In addition, an applicant shall also
reimburse the United States and the appropriate
adjacent coastal State for any additional costs
incurred in processing an application.
(2) Notwithstanding any other provision of
this chapter, and unless prohibited by law, an
adjacent coastal State may fix reasonable fees
for the use of a deepwater port facility, and such
State and any other State in which land-based
facilities directly related to a deepwater port facility are located may set reasonable fees for the
use of such land-based facilities. Fees may be
fixed under authority of this paragraph as compensation for any economic cost attributable to
the construction and operation of such deepwater port and such land-based facilities, which
cannot be recovered under other authority of
such State or political subdivision thereof, including, but not limited to, ad valorem taxes,
and for environmental and administrative costs
attributable to the construction and operation
of such deepwater port and such land-based facilities. Fees under this paragraph shall not exceed such economic, environmental, and administrative costs of such State. Such fees shall be
subject to the approval of the Secretary. As used
in this paragraph, the term ‘‘land-based facilities directly related to a deepwater port facility’’ means the onshore tank farm and pipelines
connecting such tank farm to the deepwater
port facility.
(3) A licensee shall pay annually in advance
the fair market rental value (as determined by

Page 547

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

the Secretary of the Interior) of the subsoil and
seabed of the Outer Continental Shelf of the
United States to be utilized by the deepwater
port, including the fair market rental value of
the right-of-way necessary for the pipeline segment of the port located on such subsoil and seabed.
(i) Application approval; period for determination; priorities; criteria for determination of
application best serving national interest
(1) The Secretary shall approve or deny any
application for a designated application area
submitted pursuant to this chapter not later
than 90 days after the last public hearing on a
proposed license for that area.
(2) In the event more than one application is
submitted for an application area, the Secretary, unless one of the proposed deepwater
ports clearly best serves the national interest,
shall issue a license according to the following
order of priorities:
(A) to an adjacent coastal State (or combination of States), any political subdivision
thereof, or agency or instrumentality, including a wholly owned corporation of any such
government;
(B) to a person who is neither (i) engaged in
producing, refining, or marketing oil, nor (ii)
an affiliate of any person who is engaged in
producing, refining, or marketing oil or an affiliate of any such affiliate;
(C) to any other person.
(3) In determining whether any one proposed
deepwater port clearly best serves the national
interest, the Secretary shall consider the following factors:
(A) the degree to which the proposed deepwater ports affect the environment, as determined under criteria established pursuant to
section 1505 of this title;
(B) any significant differences between anticipated completion dates for the proposed
deepwater ports; and
(C) any differences in costs of construction
and operation of the proposed deepwater ports,
to the extent that such differential may significantly affect the ultimate cost of oil to the
consumer.
(4) The Secretary shall approve or deny any
application for a deepwater port for natural gas
submitted pursuant to this chapter not later
than 90 days after the last public hearing on a
proposed license. Paragraphs (1), (2), and (3) of
this subsection shall not apply to an application
for a deepwater port for natural gas.
(Pub. L. 93–627, § 5, Jan. 3, 1975, 88 Stat. 2131; Pub.
L. 98–419, § 2(f), Sept. 25, 1984, 98 Stat. 1607; Pub.
L. 104–324, title V, § 505, Oct. 19, 1996, 110 Stat.
3927; Pub. L. 107–295, title I, § 106(c), (f), (g), Nov.
25, 2002, 116 Stat. 2086–2088; Pub. L. 109–241, title
III, § 304(c)(1), July 11, 2006, 120 Stat. 527; Pub. L.
111–281, title IX, § 903(d), Oct. 15, 2010, 124 Stat.
3011.)
REFERENCES IN TEXT
The National Environmental Policy Act of 1969, referred to in subsec. (f), is Pub. L. 91–190, Jan. 1, 1970, 83
Stat. 852, as amended, which is classified generally to
chapter 55 (§ 4321 et seq.) of Title 42, The Public Health

§ 1504

and Welfare. For complete classification of this Act to
the Code, see Short Title note set out under section
4321 of Title 42 and Tables.
AMENDMENTS
2010—Subsec. (c)(2)(K). Pub. L. 111–281 realigned margin.
2006—Subsec. (c)(2)(K) to (M). Pub. L. 109–241 added
subpar. (K) and redesignated former subpars. (K) and
(L) as (L) and (M), respectively.
2002—Subsec. (d)(4). Pub. L. 107–295, § 106(c)(1), added
par. (4).
Subsec. (f). Pub. L. 107–295, § 106(f), substituted
‘‘NEPA compliance’’ for ‘‘Environmental impact statement for single application area; criteria’’ in heading
and amended text generally. Prior to amendment, text
read as follows: ‘‘For all timely applications covering a
single application area, the Secretary, in cooperation
with other involved Federal agencies and departments,
shall, pursuant to section 4332(2)(C) of title 42, prepare
a single, detailed environmental impact statement,
which shall fulfill the requirement of all Federal agencies in carrying out their responsibilities pursuant to
this chapter to prepare an environmental impact statement. In preparing such statement the Secretary shall
consider the criteria established under section 1505 of
this title.’’
Subsec. (h)(2). Pub. L. 107–295, § 106(g), inserted ‘‘and
unless prohibited by law,’’ after ‘‘Notwithstanding any
other provision of this chapter,’’.
Subsec. (i)(4). Pub. L. 107–295, § 106(c)(2), added par. (4).
1996—Subsec. (c)(3). Pub. L. 104–324 added par. (3).
1984—Subsec. (g). Pub. L. 98–419 substituted ‘‘issued’’
for ‘‘issued, transferred, or renewed’’.
REGULATIONS
Pub. L. 107–295, title I, § 106(e), Nov. 25, 2002, 116 Stat.
2087, provided that:
‘‘(1) AGENCY AND DEPARTMENT EXPERTISE AND RESPONSIBILITIES.—Not later than 30 days after the date of the
enactment of this Act [Nov. 25, 2002], the heads of Federal departments or agencies having expertise concerning, or jurisdiction over, any aspect of the construction
or operation of deepwater ports for natural gas shall
transmit to the Secretary of Transportation written
comments as to such expertise or statutory responsibilities pursuant to the Deepwater Port Act of 1974 (33
U.S.C. 1501 et seq.) or any other Federal law.
‘‘(2) INTERIM FINAL RULE.—The Secretary may issue
an interim final rule as a temporary regulation implementing this section [amending this section and sections 1501 to 1503, 1507, and 1520 of this title] (including
the amendments made by this section) as soon as practicable after the date of enactment of this section,
without regard to the provisions of chapter 5 of title 5,
United States Code.
‘‘(3) FINAL RULES.—As soon as practicable after the
date of the enactment of this Act, the Secretary of
Transportation shall issue additional final rules that,
in the discretion of the Secretary, are determined to be
necessary under the Deepwater Port Act of 1974 (33
U.S.C. 1501 et seq.) for the application and issuance of
licenses for a deepwater port for natural gas.’’
INFORMATION TO BE PROVIDED
Pub. L. 109–241, title III, § 304(c)(2), July 11, 2006, 120
Stat. 527, provided that: ‘‘When the Coast Guard is operating as a contributing agency in the Federal Energy
Regulatory Commission’s shoreside licensing process
for a liquefied natural gas or liquefied petroleum gas
terminal located on shore or within State seaward
boundaries, the Coast Guard shall provide to the Commission the information described in section 5(c)(2)(K)
of the Deepwater Port Act of 1974 (33 U.S.C.
1504(c)(2)(K)) with respect to vessels reasonably anticipated to be servicing that port.’’

§ 1505

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

§ 1505. Environmental review criteria
(a) Establishment; evaluation of proposed deepwater ports
The Secretary, in accordance with the recommendations of the Administrator of the Environmental Protection Agency and the Administrator of the National Oceanic and Atmospheric
Administration and after consultation with any
other Federal departments and agencies having
jurisdiction over any aspect of the construction
or operation of a deepwater port, shall establish,
as soon as practicable after January 3, 1975, environmental review criteria consistent with the
National Environmental Policy Act [42 U.S.C.
4321 et seq.]. Such criteria shall be used to
evaluate a deepwater port as proposed in an application, including—
(1) the effect on the marine environment;
(2) the effect on oceanographic currents and
wave patterns;
(3) the effect on alternate uses of the oceans
and navigable waters, such as scientific study,
fishing, and exploitation of other living and
nonliving resources;
(4) the potential dangers to a deepwater port
from waves, winds, weather, and geological
conditions, and the steps which can be taken
to protect against or minimize such dangers;
(5) effects of land-based developments related to deepwater port development;
(6) the effect on human health and welfare;
and
(7) such other considerations as the Secretary deems necessary or appropriate.
(b) Review and revision
The Secretary shall periodically review and,
whenever necessary, revise in the same manner
as originally developed, criteria established pursuant to subsection (a) of this section.
(c) Concurrent development of criteria and regulations
Criteria established pursuant to this section
shall be developed concurrently with the regulations in subsection (a) of section 1504 of this
title and in accordance with the provisions of
that subsection.
(Pub. L. 93–627, § 6, Jan. 3, 1975, 88 Stat. 2135.)
REFERENCES IN TEXT
The National Environmental Policy Act, referred to
in subsec. (a), is Pub. L. 91–190, § 2, Jan. 1970, 83 Stat.
852, as amended, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and
Welfare. For complete classification of this Act to the
Code, see Short Title note set out under section 4321 of
Title 42 and Tables.

§ 1506. Repealed. Pub. L. 104–324, title V, § 506,
Oct. 19, 1996, 110 Stat. 3927
Section, Pub. L. 93–627, § 7, Jan. 3, 1975, 88 Stat. 2135;
Pub. L. 98–419, § 2(g), (h), Sept. 25, 1984, 98 Stat. 1607,
provided for antitrust review by Attorney General and
Federal Trade Commission prior to issuance of license
for ownership, construction, and operation of deepwater port.

§ 1507. Common carrier status
(a) Status of deepwater ports and storage facilities
A deepwater port and a storage facility serviced directly by that deepwater port shall oper-

Page 548

ate as a common carrier under applicable provisions of part I of the Interstate Commerce Act
and subtitle IV of title 49, and shall accept,
transport, or convey without discrimination all
oil delivered to the deepwater port with respect
to which its license is issued, except as provided
by subsection (b) of this section.
(b) Discrimination prohibition; exceptions
A licensee is not discriminating under this
section and is not subject to common carrier
regulations under subsection (a) of this section
when that licensee—
(1) is subject to effective competition for the
transportation of oil from alternative transportation systems; and
(2) sets its rates, fees, charges, and conditions of service on the basis of competition,
giving consideration to other relevant business factors such as the market value of services provided, licensee’s cost of operation, and
the licensee’s investment in the deepwater
port and a storage facility, and components
thereof, serviced directly by that deepwater
port.
(c) Enforcement, suspension, or termination proceedings
When the Secretary has reason to believe that
a licensee is not in compliance with this section,
the Secretary shall commence an appropriate
proceeding before the Federal Energy Regulatory Commission or request the Attorney General to take appropriate steps to enforce compliance with this section and, when appropriate, to
secure the imposition of appropriate sanctions.
In addition, the Secretary may suspend or revoke the license of a licensee not complying
with its obligations under this section.
(d) Managed access
Subsections (a) and (b) of this section shall
not apply to deepwater ports for natural gas. A
licensee of a deepwater port for natural gas, or
an affiliate thereof, may exclusively utilize the
entire capacity of the deepwater port and storage facilities for the acceptance, transport, storage, regasification, or conveyance of natural gas
produced, processed, marketed, or otherwise obtained by agreement by such licensee or its affiliates. The licensee may make unused capacity
of the deepwater port and storage facilities
available to other persons, pursuant to reasonable terms and conditions imposed by the licensee, if such use does not otherwise interfere
in any way with the acceptance, transport, storage, regasification, or conveyance of natural gas
produced, processed, marketed, or otherwise obtained by agreement by such licensee or its affiliates.
(e) Jurisdiction
Notwithstanding any provision of the Natural
Gas Act (15 U.S.C. 717 et seq.), any regulation or
rule issued thereunder, or section 1518 of this
title as it pertains to such Act, this chapter
shall apply with respect to the licensing, siting,
construction, or operation of a deepwater natural gas port or the acceptance, transport, storage, regasification, or conveyance of natural gas
at or through a deepwater port, to the exclusion
of the Natural Gas Act or any regulation or rule
issued thereunder.

Page 549

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(Pub. L. 93–627, § 8, Jan. 3, 1975, 88 Stat. 2136; Pub.
L. 98–419, § 3(a), Sept. 25, 1984, 98 Stat. 1608; Pub.
L. 104–324, title V, § 507, Oct. 19, 1996, 110 Stat.
3927; Pub. L. 107–295, title I, § 106(d), Nov. 25, 2002,
116 Stat. 2087.)
REFERENCES IN TEXT
The Interstate Commerce Act, referred to in subsec.
(a), is act Feb. 4, 1887, ch. 104, 24 Stat. 379, as amended.
Part I of the Act, which was classified to chapter 1 (§ 1
et seq.) of former Title 49, Transportation, was repealed
by Pub. L. 95-473, § 4(b), Oct. 17, 1978, 92 Stat. 1467, the
first section of which enacted subtitle IV (§ 10101 et
seq.) of Title 49. For distribution of former sections of
Title 49 into the revised Title 49, see Table at the beginning of Title 49.
The Natural Gas Act, referred to in subsec. (e), is act
June 21, 1938, ch. 556, 52 Stat. 821, as amended, which is
classified generally to chapter 15B (§ 717 et seq.) of Title
15, Commerce and Trade. For complete classification of
this Act to the Code, see section 717w of Title 15 and
Tables.
AMENDMENTS
2002—Subsecs. (d), (e). Pub. L. 107–295 added subsecs.
(d) and (e).
1996—Subsec. (a). Pub. L. 104–324, § 507(a), inserted
‘‘and shall accept, transport, or convey without discrimination all oil delivered to the deepwater port with
respect to which its license is issued,’’ after ‘‘subtitle
IV of title 49,’’.
Subsec. (b). Pub. L. 104–324, § 507(b), substituted ‘‘A licensee is not discriminating under this section and’’ for
‘‘A licensee under this chapter shall accept, transport,
or convey without discrimination all oil delivered to
the deepwater port with respect to which its license is
issued. However, a licensee’’.
1984—Subsec. (a). Pub. L. 98–419 substituted provision
that a deepwater port and a storage facility serviced directly by that deepwater port shall operate as a common carrier under applicable provisions of part I of the
Interstate Commerce Act and subtitle IV of title 49 except as provided by subsec. (b), for provision that such
port and such facilities were subject to regulations as
a common carrier in accordance with the Interstate
Commerce Act, as amended, for purposes of chapter 39
of title 18 and former sections 1 to 27 of title 49.
Subsec. (b). Pub. L. 98–419 inserted provisions enumerating conditions under which a licensee is not subject to common carrier regulations under subsec. (a).
Provisions dealing with enforcement, suspension, or
termination proceedings, were redesignated as subsec.
(c).
Subsec. (c). Pub. L. 98–419 redesignated a portion of
provisions of subsec. (b) as subsec. (c), and in subsec. (c)
as so redesignated substituted provisions authorizing
the Secretary to commence proceedings before the Federal Energy Regulatory Commission, or to suspend or
revoke licenses of noncomplying licensees, in the event
of noncompliance with this section, for provisions
which had authorized the Secretary to commence proceedings before the Interstate Commerce Commission
or to suspend or terminate licenses of noncomplying licensees as provided in section 1511 of this title, in the
event of noncompliance by a licensee with its obligations as a common carrier.

§ 1508. Adjacent coastal States
(a)

Designation; direct pipeline connections;
mileage; risk of damage to coastal environment, time for designation
(1) The Secretary, in issuing notice of application pursuant to section 1504(c) of this title,
shall designate as an ‘‘adjacent coastal State’’
any coastal State which (A) would be directly
connected by pipeline to a deepwater port as
proposed in an application, or (B) would be lo-

§ 1508

cated within 15 miles of any such proposed deepwater port.
(2) The Secretary shall, upon request of a
State, and after having received the recommendations of the Administrator of the National Oceanic and Atmospheric Administration,
designate such State as an ‘‘adjacent coastal
State’’ if he determines that there is a risk of
damage to the coastal environment of such
State equal to or greater than the risk posed to
a State directly connected by pipeline to the
proposed deepwater port. This paragraph shall
apply only with respect to requests made by a
State not later than the 14th day after the date
of publication of notice of an application for a
proposed deepwater port in the Federal Register
in accordance with section 1504(c) of this title.
The Secretary shall make the designation required by this paragraph not later than the 45th
day after the date he receives such a request
from a State.
(b) Applications; submittal to Governors for approval or disapproval; consistency of Federal
licenses and State programs; views of other
interested States
(1) Not later than 10 days after the designation
of adjacent coastal States pursuant to this chapter, the Secretary shall transmit a complete
copy of the application to the Governor of each
adjacent coastal State. The Secretary shall not
issue a license without the approval of the Governor of each adjacent coastal State. If the Governor fails to transmit his approval or disapproval to the Secretary not later than 45 days
after the last public hearing on applications for
a particular application area, such approval
shall be conclusively presumed. If the Governor
notifies the Secretary that an application,
which would otherwise be approved pursuant to
this paragraph, is inconsistent with State programs relating to environmental protection,
land and water use, and coastal zone management, the Secretary shall condition the license
granted so as to make it consistent with such
State programs.
(2) Any other interested State shall have the
opportunity to make its views known to, and
shall be given full consideration by, the Secretary regarding the location, construction, and
operation of a deepwater port.
(c) Reasonable progress toward development of
coastal zone management program; planning
grants
The Secretary shall not issue a license unless
the adjacent coastal State to which the deepwater port is to be directly connected by pipeline has developed, or is making, at the time the
application is submitted, reasonable progress toward developing an approved coastal zone management program pursuant to the Coastal Zone
Management Act of 1972 [16 U.S.C. 1451 et seq.]
in the area to be directly and primarily impacted by land and water development in the
coastal zone resulting from such deepwater port.
For the purposes of this chapter, a State shall be
considered to be making reasonable progress if
it is receiving a planning grant pursuant to section 305 of the Coastal Zone Management Act [16
U.S.C. 1454].

§ 1509

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(d) State agreements or compacts
The consent of Congress is given to two or
more coastal States to negotiate and enter into
agreements or compacts, not in conflict with
any law or treaty of the United States, (1) to
apply for a license for the ownership, construction, and operation of a deepwater port or for
the transfer of such license, and (2) to establish
such agencies, joint or otherwise, as are deemed
necessary or appropriate for implementing and
carrying out the provisions of any such agreement or compact. Such agreement or compact
shall be binding and obligatory upon any State
or party thereto without further approval by
Congress.
(Pub. L. 93–627, § 9, Jan. 3, 1975, 88 Stat. 2136.)
REFERENCES IN TEXT
The Coastal Zone Management Act of 1972, referred to
in subsec. (c), is title III of Pub. L. 89–454 as added by
Pub. L. 92–583, Oct. 27, 1972, 86 Stat. 1280, as amended,
which is classified generally to chapter 33 (§ 1451 et seq.)
of Title 16, Conservation. For complete classification of
this Act to the Code, see Short Title note set out under
section 1451 of Title 16, and Tables.

§ 1509. Marine environmental protection and
navigational safety
(a) Regulations and procedures
Subject to recognized principles of international law and the provision of adequate opportunities for public involvement, the Secretary shall prescribe and enforce procedures, either by regulation (for basic standards and conditions) or by the licensee’s operations manual,
with respect to rules governing vessel movement, loading and unloading procedures, designation and marking of anchorage areas, maintenance, law enforcement, and the equipment,
training, and maintenance required (A) to prevent pollution of the marine environment, (B) to
clean up any pollutants which may be discharged, and (C) to otherwise prevent or minimize any adverse impact from the construction
and operation of such deepwater port.
(b) Safety of property and life; regulations
The Secretary shall issue and enforce regulations with respect to lights and other warning
devices, safety equipment, and other matters relating to the promotion of safety of life and
property in any deepwater port and the waters
adjacent thereto.
(c) Marking of components; payment of cost
The Secretary shall mark, for the protection
of navigation, any component of a deepwater
port whenever the licensee fails to mark such
component in accordance with applicable regulations. The licensee shall pay the cost of such
marking.
(d) Safety zones; designation; construction period; permitted activities
(1) Subject to recognized principles of international law and after consultation with the
Secretary of the Interior, the Secretary of Commerce, the Secretary of State, and the Secretary
of Defense, the Secretary shall designate a zone
of appropriate size around and including any
deepwater port for the purpose of navigational

Page 550

safety. In such zone, no installations, structures, or uses will be permitted that are incompatible with the operation of the deepwater
port. The Secretary shall by regulation define
permitted activities within such zone. The Secretary shall, not later than 30 days after publication of notice pursuant to section 1504(c) of
this title, designate such safety zone with respect to any proposed deepwater port.
(2) In addition to any other regulations, the
Secretary is authorized, in accordance with this
subsection, to establish a safety zone to be effective during the period of construction of a deepwater port and to issue rules and regulations relating thereto.
(Pub. L. 93–627, § 10, Jan. 3, 1975, 88 Stat. 2137;
Pub. L. 104–324, title V, § 508, Oct. 19, 1996, 110
Stat. 3927.)
AMENDMENTS
1996—Subsec. (a). Pub. L. 104–324, § 507(a), inserted
‘‘and the provision of adequate opportunities for public
involvement’’ after ‘‘international law’’ and substituted ‘‘shall prescribe and enforce procedures, either
by regulation (for basic standards and conditions) or by
the licensee’s operations manual, with respect to’’ for
‘‘shall prescribe by regulation and enforce procedures
with respect to any deepwater port, including, but not
limited to,’’.

§ 1510. International agreements
The Secretary of State, in consultation with
the Secretary, shall seek effective international
action and cooperation in support of the policy
and purposes of this chapter and may formulate,
present, or support specific proposals in the
United Nations and other competent international organizations for the development of
appropriate international rules and regulations
relative to the construction, ownership, and operation of deepwater ports, with particular regard for measures that assure protection of such
facilities as well as the promotion of navigational safety in the vicinity thereof.
(Pub. L. 93–627, § 11, Jan. 3, 1975, 88 Stat. 2138.)
§ 1511. Suspension or termination of licenses
(a) Proceedings by Attorney General; venue; conditions subsequent
Whenever a licensee fails to comply with any
applicable provision of this chapter, or any applicable rule, regulation, restriction, or condition issued or imposed by the Secretary under
the authority of this chapter, the Attorney General, at the request of the Secretary, may file an
appropriate action in the United States district
court nearest to the location of the proposed or
actual deepwater port, as the case may be, or in
the district in which the licensee resides or may
be found, to—
(1) suspend the license; or
(2) if such failure is knowing and continues
for a period of thirty days after the Secretary
mails notification of such failure by registered
letter to the licensee at his record post office
address, revoke such license.
No proceeding under this subsection is necessary
if the license, by its terms, provides for automatic suspension or termination upon the occurrence of a fixed or agreed upon condition,
event, or time.

Page 551

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

(b) Public health or safety; danger to environment; completion of proceedings
If the Secretary determines that immediate
suspension of the construction or operation of a
deepwater port or any component thereof is necessary to protect public health or safety or to
eliminate imminent and substantial danger to
the environment, he shall order the licensee to
cease or alter such construction or operation
pending the completion of a judicial proceeding
pursuant to subsection (a) of this section.
(Pub. L. 93–627, § 12, Jan. 3, 1975, 88 Stat. 2138.)
CODIFICATION
In subsec. (a), ‘‘chapter’’ substituted for ‘‘title’’ to
conform to other substitutions for ‘‘Act’’ and as reflecting intent of Congress manifest throughout Pub. L.
93–627 in the use of the term ‘‘Act’’.

§ 1512. Recordkeeping and inspection
(a) Regulations; regulations under other provisions unaffected
Each licensee shall establish and maintain
such records, make such reports, and provide
such information as the Secretary, after consultation with other interested Federal departments and agencies, shall by regulation prescribe to carry out the provision of this chapter.
Such regulations shall not amend, contradict or
duplicate regulations established pursuant to
part I of the Interstate Commerce Act or any
other law. Each licensee shall submit such reports and shall make such records and information available as the Secretary may request.
(b) Access to deepwater ports in enforcement
proceedings and execution of official duties;
inspections and tests; notification of results
All United States officials, including those officials responsible for the implementation and
enforcement of United States laws applicable to
a deepwater port, shall at all times be afforded
reasonable access to a deepwater port licensed
under this chapter for the purpose of enforcing
laws under their jurisdiction or otherwise carrying out their responsibilities. Each such official
may inspect, at reasonable times, records, files,
papers, processes, controls, and facilities and
may test any feature of a deep water port. Each
inspection shall be conducted with reasonable
promptness, and such licensee shall be notified
of the results of such inspection.
(Pub. L. 93–627, § 13, Jan. 3, 1975, 88 Stat. 2139.)
REFERENCES IN TEXT
The Interstate Commerce Act, referred to in subsec.
(a), is act Feb. 4, 1887, ch. 104, 24 Stat. 379, as amended.
Part I of the Act, which was classified to chapter 1 (§ 1
et seq.) of former Title 49, Transportation, was repealed
by Pub. L. 95-473, § 4(b), Oct. 17, 1978, 92 Stat. 1467, the
first section of which enacted subtitle IV (§ 10101 et
seq.) of Title 49. For distribution of former sections of
Title 49 into the revised Title 49, see Table at the beginning of Title 49.

§ 1513. Public access to information
(a) Inspection of copies; reproduction costs; protected information
Copies of any communication, document, report, or information transmitted between any

§ 1514

official of the Federal Government and any person concerning a deepwater port (other than
contracts referred to in section 1504(c)(2)(B) of
this title) shall be made available to the public
for inspection, and shall be available for the purpose of reproduction at a reasonable cost, to the
public upon identifiable request, unless such information may not be publicly released under
the terms of subsection (b) of this section. Except as provided in subsection (b) of this section,
nothing contained in this section shall be construed to require the release of any information
of the kind described in subsection (b) of section
552 of title 5 or which is otherwise protected by
law from disclosure to the public.
(b) Information disclosure prohibition; confidentiality of certain disclosures
The Secretary shall not disclose information
obtained by him under this chapter that concerns or relates to a trade secret, referred to in
section 1905 of title 18, or to a contract referred
to in section 1504(c)(2)(B) of this title, except
that such information may be disclosed, in a
manner which is designed to maintain confidentiality—
(1) to other Federal and adjacent coastal
State government departments and agencies
for official use, upon request;
(2) to any committee of Congress having jurisdiction over the subject matter to which
the information relates, upon request;
(3) to any person in any judicial proceeding,
under a court order formulated to preserve
such confidentiality without impairing the
proceedings; and
(4) to the public in order to protect health
and safety, after notice and opportunity for
comment in writing or for discussion in closed
session within fifteen days by the party to
which the information pertains (if the delay
resulting from such notice and opportunity for
comment would not be detrimental to the public health and safety).
(Pub. L. 93–627, § 14, Jan. 3, 1975, 88 Stat. 2139.)
§ 1514. Remedies
(a) Criminal penalties
Any person who willfully violates any provision of this chapter or any rule, order, or regulation issued pursuant thereto commits a class A
misdemeanor for each day of violation.
(b) Orders of compliance; Attorney General’s
civil action; jurisdiction and venue
(1) Whenever on the basis of any information
available to him the Secretary finds that any
person is in violation of any provision of this
chapter or any rule, regulation, order, license,
or condition thereof, or other requirements
under this chapter, he shall issue an order requiring such person to comply with such provision or requirement, or he shall bring a civil action in accordance with paragraph (3) of this
subsection.
(2) Any order issued under this subsection
shall state with reasonable specificity the nature of the violation and a time for compliance,
not to exceed thirty days, which the Secretary
determines is reasonable, taking into account
the seriousness of the violation and any good

§ 1515

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

faith efforts to comply with applicable requirements.
(3) Upon a request by the Secretary, the Attorney General shall commence a civil action for
appropriate relief, including a permanent or
temporary injunction or a civil penalty not to
exceed $25,000 per day of such violation, for any
violation for which the Secretary is authorized
to issue a compliance order under paragraph (1)
of this subsection. Any action under this subsection may be brought in the district court of
the United States for the district in which the
defendant is located or resides, or is doing business, and such court shall have jurisdiction to
restrain such violation, require compliance, or
impose such penalty.
(c) Attorney General’s action for equitable relief;
scope of relief
Upon a request by the Secretary, the Attorney
General shall bring an action in an appropriate
district court of the United States for equitable
relief to redress a violation by any person of any
provision of this chapter, any regulation under
this chapter, or any license condition. The district courts of the United States shall have jurisdiction to grant such relief as is necessary or
appropriate, including mandatory or prohibitive
injunctive relief, interim equitable relief, compensatory damages, and punitive damages.
(d) Vessels; liability in rem; exempt vessels; consent or privy of owners or bareboat charterers
Any vessel, except a public vessel engaged in
noncommercial activities, used in a violation of
this chapter or of any rule or regulation issued
pursuant to this chapter, shall be liable in rem
for any civil penalty assessed or criminal fine
imposed and may be proceeded against in any
district court of the United States having jurisdiction thereof; but no vessel shall be liable unless it shall appear that one or more of the owners, or bareboat charterers, was at the time of
the violation, a consenting party or privy to
such violation.
(Pub. L. 93–627, § 15, Jan. 3, 1975, 88 Stat. 2140;
Pub. L. 101–380, title IV, § 4302(m), Aug. 18, 1990,
104 Stat. 539.)
AMENDMENTS
1990—Subsec. (a). Pub. L. 101–380 substituted ‘‘commits a class A misdemeanor for each day of violation’’
for ‘‘shall on conviction be fined not more than $25,000
for each day of violation or imprisoned for not more
than 1 year, or both’’.
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by Pub. L. 101–380 applicable to incidents
occurring after Aug. 18, 1990, see section 1020 of Pub. L.
101–380, set out as an Effective Date note under section
2701 of this title.
DEPOSIT OF CERTAIN PENALTIES INTO OIL SPILL
LIABILITY TRUST FUND
Penalties paid pursuant to this chapter and sections
1319(c) and 1321 of this title to be deposited in the Oil
Spill Liability Trust Fund created under section 9509 of
Title 26, Internal Revenue Code, see section 4304 of Pub.
L. 101–380, set out as a note under section 9509 of Title
26.

Page 552

§ 1515. Citizen civil action
(a) Equitable relief; case or controversy; district
court jurisdiction
Except as provided in subsection (b) of this
section, any person may commence a civil action for equitable relief on his own behalf, whenever such action constitutes a case or controversy—
(1) against any person (including (A) the
United States, and (B) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to
the Constitution) who is alleged to be in violation of any provision of this chapter or any
condition of a license issued pursuant to this
chapter; or
(2) against the Secretary where there is alleged a failure of the Secretary to perform any
act or duty under this chapter which is not
discretionary with the Secretary. Any action
brought against the Secretary under this paragraph shall be brought in the district court for
the District of Columbia or the district of the
appropriate adjacent coastal State.
In suits brought under this chapter, the district
court shall have jurisdiction, without regard to
the amount in controversy or the citizenship of
the parties, to enforce any provision of this
chapter or any condition of a license issued pursuant to this chapter, or to order the Secretary
to perform such act or duty, as the case may be.
(b) Notice; intervention of right by person
No civil action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to 60 days after the plaintiff has
given notice of the violation (i) to the Secretary and (ii) to any alleged violator; or
(B) if the Secretary or the Attorney General has commenced and is diligently prosecuting a civil or criminal action with respect to such matters in a court of the
United States, but in any such action any
person may intervene as a matter of right;
or
(2) under subsection (a)(2) of this section
prior to 60 days after the plaintiff has given
notice of such action to the Secretary.
Notice under this subsection shall be given in
such a manner as the Secretary shall prescribe
by regulation.
(c) Intervention of right by Secretary or Attorney General
In any action under this section, the Secretary
or the Attorney General, if not a party, may intervene as a matter of right.
(d) Costs of litigation; attorney and witness fees
The Court, in issuing any final order in any
action brought pursuant to subsection (a) of this
section, may award costs of litigation (including
reasonable attorney and expert witness fees) to
any party whenever the court determines that
such an award is appropriate.
(e) Statutory or common law rights unaffected
Nothing in this section shall restrict any right
which any person (or class of persons) may have
under any statute or common law to seek enforcement or to seek any other relief.

Page 553

TITLE 33—NAVIGATION AND NAVIGABLE WATERS
§ 1518. Relationship to other laws

(Pub. L. 93–627, § 16, Jan. 3, 1975, 88 Stat. 2140.)
§ 1516. Judicial review; persons aggrieved; jurisdiction of courts of appeal
Any person suffering legal wrong, or who is adversely affected or aggrieved by the Secretary’s
decision to issue, transfer, modify, renew, suspend, or revoke a license may, not later than 60
days after any such decision is made, seek judicial review of such decision in the United States
Court of Appeals for the circuit within which
the nearest adjacent coastal State is located. A
person shall be deemed to be aggrieved by the
Secretary’s decision within the meaning of this
chapter if he—
(A) has participated in the administrative
proceedings before the Secretary (or if he did
not so participate, he can show that his failure
to do so was caused by the Secretary’s failure
to provide the required notice); and
(B) is adversely affected by the Secretary’s
action.
(Pub. L. 93–627, § 17, Jan. 3, 1975, 88 Stat. 2141.)
§ 1517. Repealed. Pub. L. 101–380, title
§ 2003(a)(2), Aug. 18, 1990, 104 Stat. 507

§ 1518

II,

Section, Pub. L. 93–627, § 18, Jan. 3, 1975, 88 Stat. 2141;
Pub. L. 98–419, § 4(a), Sept. 25, 1984, 98 Stat. 1608, set penalties for discharge of oil into marine environment and
provided for creation and maintenance of a Deepwater
Port Liability Fund.
DEEPWATER PORT LIABILITY FUND
Amounts remaining in Deepwater Port Liability
Fund established under former subsec. (f) of this section to be deposited in Oil Spill Liability Trust Fund
established under section 9509 of Title 26, Internal Revenue Code, with that Fund to assume all liability incurred by the Deepwater Port Liability Fund, see section 2003(b) of Pub. L. 101–380, set out as a note under
section 9509 of Title 26.
EFFECTIVE DATE OF REPEAL
Repeal applicable to incidents occurring after Aug.
18, 1990, see section 1020 of Pub. L. 101–380, set out as an
Effective Date note under section 2701 of this title.

§ 1517a. Omitted
CODIFICATION
Section, Pub. L. 101–164, title I, Nov. 21, 1989, 103 Stat.
1073, which authorized Secretary of Transportation to
issue, and Secretary of the Treasury to purchase, notes
or other obligations to meet obligations of Deepwater
Port Liability Fund, applied to fiscal year ending Sept.
30, 1990, and was not repeated in subsequent appropriation acts.
Similar provisions were contained in the following
prior appropriation acts:
Pub. L. 100–457, title I, Sept. 30, 1988, 102 Stat. 2128.
Pub. L. 100–202, § 101(l) [title I], Dec. 22, 1987, 101 Stat.
1329–358, 1329–361.
Pub. L. 99–500, § 101(l) [H.R. 5205, title I], Oct. 18, 1986,
100 Stat. 1783–308, and Pub. L. 99–591, § 101(l) [H.R. 5205,
title I], Oct. 30, 1986, 100 Stat. 3341–308.
Pub. L. 99–190, § 101(e) [title I], Dec. 19, 1985, 99 Stat.
1267, 1270.
Pub. L. 98–473, title I, § 101(i) [title I], Oct. 12, 1984, 98
Stat. 1944, 1947.
Pub. L. 98–78, title I, Aug. 15, 1983, 97 Stat. 455.
Pub. L. 97–369, title I, Dec. 18, 1982, 95 Stat. 1767.
Pub. L. 97–102, title I, Dec. 23, 1981, 95 Stat. 1444.
Pub. L. 97–12, title I, June 5, 1981, 95 Stat. 67.

(a) Federal Constitution, laws, and treaties applicable; other Federal requirements applicable; status of deepwater port; Federal or
State authorities and responsibilities within
territorial seas unaffected; notification by
Secretary of State of intent to exercise jurisdiction; objections by foreign governments
(1) The Constitution, laws, and treaties of the
United States shall apply to a deepwater port licensed under this chapter and to activities connected, associated, or potentially interfering
with the use or operation of any such port, in
the same manner as if such port were an area of
exclusive Federal jurisdiction located within a
State. Nothing in this chapter shall be construed to relieve, exempt, or immunize any person from any other requirement imposed by
Federal law, regulation, or treaty. Deepwater
ports licensed under this chapter do not possess
the status of islands and have no territorial seas
of their own.
(2) Except as otherwise provided by this chapter, nothing in this chapter shall in any way
alter the responsibilities and authorities of a
State or the United States within the territorial
seas of the United States.
(3) The Secretary of State shall notify the government of each foreign state having vessels
registered under its authority or flying its flag
which may call at or otherwise utilize a deepwater port but which do not currently have an
agreement in effect as provided in subsection
(c)(2)(A)(i) of this section that the United States
intends to exercise jurisdiction over vessels calling at or otherwise utilizing a deepwater port
and the persons on board such vessels. The Secretary of State shall notify the government of
each such state that, absent its objection, its
vessels will be subject to the jurisdiction of the
United States whenever they—
(A) are calling at or otherwise utilizing a
deepwater port; and
(B) are within the safety zone of such a deepwater port and are engaged in activities connected, associated, or potentially interfering
with the use and operation of the deepwater
port.
The Secretary of State shall promptly inform licensees of deepwater ports of all objections received from governments of foreign states in response to notifications made under this paragraph.
(b) Law of nearest adjacent coastal State as applicable Federal law; Federal administration
and enforcement of such law; nearest adjacent coastal State defined
The law of the nearest adjacent coastal State,
now in effect or hereafter adopted, amended, or
repealed, is declared to be the law of the United
States, and shall apply to any deepwater port licensed pursuant to this chapter, to the extent
applicable and not inconsistent with any provision or regulation under this chapter or other
Federal laws and regulations now in effect or
hereafter adopted, amended, or repealed. All
such applicable laws shall be administered and
enforced by the appropriate officers and courts
of the United States. For purposes of this sub-

§ 1519

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

Page 554

section, the nearest adjacent coastal State shall
be that State whose seaward boundaries, if extended beyond 3 miles, would encompass the site
of the deepwater port.
(c) Vessels of United States and foreign states
subject to Federal jurisdiction; objections to
jurisdiction; designation of agent for service
of process; duty of licensee
(1) The jurisdiction of the United States shall
apply to vessels of the United States and persons
on board such vessels. The jurisdiction of the
United States shall also apply to vessels, and
persons on board such vessels, registered in or
flying the flags of foreign states, whenever such
vessels are—
(A) calling at or otherwise utilizing a deepwater port; and
(B) are within the safety zone of such a deepwater port, and are engaged in activities connected, associated, or potentially interfering
with the use and operation of the deepwater
port.

tion if they were imported for consumption in
the United States. Duties and taxes shall be paid
thereon in accordance with laws applicable to
merchandise imported into the customs territory of the United States.
(e) Federal district courts; original jurisdiction;
venue
The United States district courts shall have
original jurisdiction of cases and controversies
arising out of or in connection with the construction and operation of deepwater ports, and
proceedings with respect to any such case or
controversy may be instituted in the judicial
district in which any defendant resides or may
be found, or in the judicial district of the adjacent coastal State nearest the place where the
cause of action arose.

The jurisdiction of the United States under this
paragraph shall not, however, apply to vessels
registered in or flying the flag of any foreign
state that has objected to the application of
such jurisdiction.
(2) Except in a situation involving force
majeure, a licensee shall not permit a vessel registered in or flying the flag of a foreign state to
call at or otherwise utilize a deepwater port licensed under this chapter unless—
(A)(i) the foreign state involved, by specific
agreement with the United States, has agreed
to recognize the jurisdiction of the United
States over the vessels registered in or flying
the flag of that state and persons on board
such vessels in accordance with the provisions
of paragraph (1) of this subsection, while the
vessel is located within the safety zone, or
(ii) the foreign state has not objected to the
application of the jurisdiction of the United
States to any vessel, or persons on board such
vessel, while the vessel is located within the
safety zone; and
(B) the vessel owner or operator has designated an agent in the United States for receipt of service of process in the event of any
claim or legal proceeding resulting from activities of the vessel or its personnel while located within such a safety zone.

Section 19(f) of Pub. L. 93–627 amended section
1333(a)(2) of Title 43, Public Lands.

(3) For purposes of paragraph (2)(A)(ii) of this
subsection, a licensee shall not be obliged to
prohibit a call at or use of a deepwater port by
a vessel registered in or flying the flag of an objecting state unless the licensee has been informed by the Secretary of State as required by
subsection (a)(3) of this section.
(d) Customs laws inapplicable to deepwater port;
duties and taxes on foreign articles imported
into customs territory of United States
The customs laws administered by the Secretary of the Treasury shall not apply to any
deepwater port licensed under this chapter, but
all foreign articles to be used in the construction of any such deepwater port, including any
component thereof, shall first be made subject
to all applicable duties and taxes which would
be imposed upon or by reason of their importa-

(Pub. L. 93–627, § 19(a)–(e), Jan. 3, 1975, 88 Stat.
2145, 2146; Pub. L. 98–419, § 5(a), (b), Sept. 25, 1984,
98 Stat. 1609.)
CODIFICATION

AMENDMENTS
1984—Subsec. (a)(3). Pub. L. 98–419, § 5(a), added par.
(3).
Subsec. (c)(1). Pub. L. 98–419, § 5(b), added par. (1).
Former cl. (1) redesignated cl. (A)(i) of par. (2).
Subsec. (c)(2). Pub. L. 98–419, § 5(b), redesignated existing provisions of subsec. (c) as par. (2)(A)(i) and (B)
thereof, substituted reference to provisions of par. (1)
for former reference to provisions of this chapter in
par. (2)(A)(i) as so redesignated, and added par.
(2)(A)(ii).
Subsec. (c)(3). Pub. L. 98–419, § 5(b), added par. (3).
EFFECTIVE DATE OF 1984 AMENDMENT
Pub. L. 98–419, § 5(c), Sept. 25, 1984, 98 Stat. 1610, provided that: ‘‘The amendment made by subsection (b) of
this section [amending this section] shall be effective
on the ninetieth day following the date of enactment of
this Act [Sept. 25, 1984]. The Secretary of State shall
make the first series of notifications referred to in section 19(a)(3) of the Deepwater Port Act of 1974 [subsec.
(a)(3) of this section], as added by subsection (a) of this
section, prior to the thirtieth day following the date of
enactment of this Act [Sept. 25, 1984].’’

§ 1519. Repealed. Pub. L. 104–66, title I, § 1121(a),
Dec. 21, 1995, 109 Stat. 724
Section, Pub. L. 93–627, § 20, Jan. 3, 1975, 88 Stat. 2146,
related to annual report and recommendations by Secretary of Transportation to Congress.

§ 1520. Pipeline safety and operation
(a) Standards and regulations for Outer Continental Shelf
The Secretary, in cooperation with the Secretary of the Interior, shall establish and enforce such standards and regulations as may be
necessary to assure the safe construction and
operation of oil or natural gas pipelines on the
Outer Continental Shelf.
(b), (c) Omitted
(Pub. L. 93–627, § 21, Jan. 3, 1975, 88 Stat. 2146;
Pub. L. 107–295, title I, § 106(a)(3), Nov. 25, 2002,
116 Stat. 2086.)
CODIFICATION
Subsec. (b) directed the Secretary to report to the
Congress within 60 days after Jan. 3, 1975, on appropria-

Page 555

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

tions and staffing needed to monitor pipelines on Federal lands and the Outer Continental Shelf.
Subsec. (c) directed the Secretary to review all laws
and regulations relating to the construction, operation,
and maintenance of pipelines on Federal lands and the
Outer Continental Shelf and to report to Congress
within 6 months after Jan. 3, 1975, on administrative
changes needed and recommendations for new legislation.
AMENDMENTS
2002—Subsec. (a). Pub. L. 107–295 inserted ‘‘or natural
gas’’ after ‘‘oil’’.

§ 1601

(Pub. L. 93–627, § 25, Jan. 3, 1975, 88 Stat. 2147;
Pub. L. 95–36, June 1, 1977, 91 Stat. 177.)
AMENDMENTS
1977—Pub. L. 95–36 authorized appropriations of not
to exceed $2,500,000 per fiscal year for fiscal years ending Sept. 30, 1977, Sept. 30, 1978, Sept. 30, 1979, and Sept.
30, 1980.

CHAPTER
30—INTERNATIONAL
REGULATIONS FOR PREVENTING COLLISIONS AT
SEA
Sec.

§ 1521. Negotiations with Canada and Mexico; report to Congress
The President of the United States is authorized and requested to enter into negotiations
with the Governments of Canada and Mexico to
determine:
(1) the need for intergovernmental understandings, agreements, or treaties to protect
the interests of the people of Canada, Mexico,
and the United States and of any party or parties involved with the construction or operation of deepwater ports; and
(2) the desirability of undertaking joint
studies and investigations designed to insure
protection of the environment and to eliminate any legal and regulatory uncertainty, to
assure that the interests of the people of Canada, Mexico, and the United States are adequately met.
The President shall report to the Congress the
actions taken, the progress achieved, the areas
of disagreement, and the matters about which
more information is needed, together with his
recommendations for further action.
(Pub. L. 93–627, § 22, Jan. 3, 1975, 88 Stat. 2147.)
§ 1522. Limitations on export provisions of section 185(u) of title 30 unaffected
Nothing in this chapter shall be construed to
amend, restrict, or otherwise limit the application of section 185(u) of title 30.
(Pub. L. 93–627, § 23, Jan. 3, 1975, 88 Stat. 2147.)
§ 1523. General procedures; issuance and enforcement of orders; scope of authority; evidentiary matters
The Secretary or his delegate shall have the
authority to issue and enforce orders during proceedings brought under this chapter. Such authority shall include the authority to issue subpenas, administer oaths, compel the attendance
and testimony of witnesses and the production
of books, papers, documents, and other evidence,
to take depositions before any designated individual competent to administer oaths, and to
examine witnesses.
(Pub. L. 93–627, § 24, Jan. 3, 1975, 88 Stat. 2147.)
§ 1524. Authorization of appropriations
There is authorized to be appropriated for administration of this chapter, not to exceed
$2,500,000 per fiscal year for the fiscal years ending June 30, 1975, June 30, 1976, September 30,
1977, September 30, 1978, September 30, 1979, and
September 30, 1980.

1601.
1602.
1603.
1604.
1605.
1606.

1607.
1608.

Definitions.
International Regulations.
Vessels subject to International Regulations.
Vessels not subject to International Regulations.
Navy and Coast Guard vessels of special construction or purpose.
Special rules for ships of war, vessels proceeding under convoy, and fishing vessels engaged in fishing as a fleet.
Implementation by rules and regulations; authority to promulgate.
Civil penalties.

§ 1601. Definitions
For the purposes of this chapter—
(1) ‘‘vessel’’ means every description of
watercraft, including nondisplacement craft
and seaplanes, used or capable of being used as
a means of transportation on water; and
(2) ‘‘high seas’’ means all parts of the sea
that are not included in the territorial sea or
in the internal waters of any nation.
(Pub. L. 95–75, § 2, July 27, 1977, 91 Stat. 308.)
REFERENCES IN TEXT
This chapter, referred to in opening par., was in the
original ‘‘this Act’’, meaning Pub. L. 95–75, July 27,
1977, 91 Stat. 308, known as the ‘‘International Navigational Rules Act of 1977’’, which enacted this chapter,
repealed sections 1051 to 1094 of this title, enacted provisions set out as notes under this section, and repealed
provision set out as a note under section 1051 of this
title.
EFFECTIVE DATE OF INTERNATIONAL REGULATIONS;
REPEAL OF FORMER REGULATIONS
Pub. L. 95–75, § 10, July 27, 1977, 91 Stat. 311, provided
in part that Pub. L. 88–131, enacting sections 1051 to
1094 of this title and a provision set out as a note under
section 1051 of this title which sections included the
former International Regulations for Preventing Collisions at Sea, was repealed effective on the date on
which the International Regulations [promulgated pursuant to this chapter] entered into force for the United
States [July 15, 1977]. See Proclamation dated Jan. 19,
1977, set out as a note under section 1602 of this title.
REFERENCES TO FORMER REGULATIONS
Pub. L. 95–75, § 10, July 27, 1977, 91 Stat. 311, provided
in part that: ‘‘The reference in any other law to Public
Law 88–131 [enacting sections 1051 to 1094 of this title
and enacting a provision set out as a note under section
1051 of this title], or to the regulations set forth in section 4 of that Act [sections 1061 to 1094 of this title],
shall be considered a reference, respectively, to this
Act [this chapter], or to the International Regulations
proclaimed hereunder [set out as a note under section
1602 of this title].’’
SHORT TITLE
Pub. L. 95–75, § 1, July 27, 1977, 91 Stat. 308, provided:
‘‘That this Act [enacting this chapter, repealing sec-

Page 6807

TITLE 42—THE PUBLIC HEALTH AND WELFARE

Schedule, to be considered references to rates payable
under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, § 101(c)(1)]
of Pub. L. 101–509, set out in a note under section 5376
of Title 5.

§ 9512. Repealed. Pub. L. 97–35, title
§ 902(e)(1), Aug. 13, 1981, 95 Stat. 560

IX,

Section, Pub. L. 96–398, title VI, § 602, Oct. 7, 1980, 94
Stat. 1604, related to grants for services for rape victims.
EFFECTIVE DATE OF REPEAL
Repeal effective Oct. 1, 1981, see section 902(h) of Pub.
L. 97–35, set out as an Effective Date of 1981 Amendment note under section 238l of this title.

SUBCHAPTER VI—MISCELLANEOUS
§ 9521. Repealed. Pub. L. 97–35, title
§ 902(e)(1), Aug. 13, 1981, 95 Stat. 560

IX,

Section, Pub. L. 96–398, title VIII, § 801, Oct. 7, 1980, 94
Stat. 1605, related to employee protection arrangements.
EFFECTIVE DATE OF REPEAL
Repeal effective Oct. 1, 1981, see section 902(h) of Pub.
L. 97–35, set out as an Effective Date of 1981 Amendment note under section 238l of this title.

§ 9522. Report on shelter and basic living needs
of chronically mentally ill individuals
(a) Submission to Congressional committees by
Secretaries of Health and Human Services
and Housing and Urban Development
The Secretary of Health and Human Services
and the Secretary of Housing and Urban Development shall jointly submit a report to the
Committees on Labor and Human Resources and
Banking, Housing, and Urban Affairs of the Senate, and the Committees on Energy and Commerce and Banking, Finance, and Urban Affairs
of the House of Representatives, relating to Federal efforts to respond to the shelter and basic
living needs of chronically mentally ill individuals.
(b) Contents
The report required by subsection (a) of this
section shall include—
(1) an analysis of the extent to which chronically mentally ill individuals remain inappropriately housed in institutional facilities or
have otherwise inadequate or inappropriate
housing arrangements;
(2) an analysis of available permanent noninstitutional housing arrangements for the
chronically mentally ill;
(3) an evaluation of ongoing permanent and
demonstration programs, funded in whole or
in part by Federal funds, which are designed to
provide noninstitutional shelter and basic living services for the chronically mentally ill,
including—
(A) a description of each program;
(B) the total number of individuals estimated to be eligible to participate in each
program, the number of individuals served
by each program, and an estimate of the
total population each program expects to
serve; and
(C) an assessment of the effectiveness of
each program in the provision of shelter and
basic living services;

§ 9523

(4) recommendations of measures to encourage States to coordinate and link the provisions in State health plans which relate to
mental health and, in particular, the shelter
and basic living needs of chronically mentally
ill individuals, with local and State housing
plans;
(5) recommendations for Federal legislation
relating to the provision of permanent residential noninstitutional housing arrangements and basic living services for chronically
mentally ill individuals, including an estimate
of the cost of such recommendations; and
(6) any other recommendations for Federal
initiatives which, in the judgment of the Secretary of Health and Human Services and the
Secretary of Housing and Urban Development,
will lead to improved shelter and basic living
services for chronically mentally ill individuals.
(c) Submission date
The report required by subsection (a) of this
section shall be submitted to the committees referred to in subsection (a) of this section no
later than January 1, 1981.
(Pub. L. 96–398, title VIII, § 802, Oct. 7, 1980, 94
Stat. 1606; H. Res. 549, Mar. 25, 1980.)
CHANGE OF NAME
Committee on Labor and Human Resources of Senate
changed to Committee on Health, Education, Labor,
and Pensions of Senate by Senate Resolution No. 20,
One Hundred Sixth Congress, Jan. 19, 1999.
Committee on Banking, Finance and Urban Affairs of
House of Representatives treated as referring to Committee on Banking and Financial Services of House of
Representatives by section 1(a) of Pub. L. 104–14, set
out as a note preceding section 21 of Title 2. Committee
on Banking and Financial Services of House of Representatives abolished and replaced by Committee on
Financial Services of House of Representatives, and jurisdiction over matters relating to securities and exchanges and insurance generally transferred from Committee on Energy and Commerce of House of Representatives by House Resolution No. 5, One Hundred Seventh
Congress, Jan. 3, 2001.

§ 9523. Repealed. Pub. L. 97–35, title
§ 902(e)(1), Aug. 13, 1981, 95 Stat. 560

IX,

Section, Pub. L. 96–398, title VIII, § 806, Oct. 7, 1980, 94
Stat. 1609, related to contracting authority.
EFFECTIVE DATE OF REPEAL
Repeal effective Oct. 1, 1981, see section 902(h) of Pub.
L. 97–35, set out as an Effective Date of 1981 Amendment note under section 238l of this title.

CHAPTER 103—COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND
LIABILITY
SUBCHAPTER I—HAZARDOUS SUBSTANCES
RELEASES, LIABILITY, COMPENSATION
Sec.

9601.
9602.

9603.
9604.
9605.
9606.

Definitions.
Designation of additional hazardous substances and establishment of reportable released quantities; regulations.
Notification requirements respecting released
substances.
Response authorities.
National contingency plan.
Abatement actions.

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE

Sec.

9607.
9608.
9609.
9610.
9611.
9612.
9613.
9614.
9615.

Liability.
Financial responsibility.
Civil penalties and awards.
Employee protection.
Uses of Fund.
Claims procedure.
Civil proceedings.
Relationship to other law.
Presidential delegation and assignment of duties or powers and promulgation of regulations.
9616.
Schedules.
9617.
Public participation.
9618.
High priority for drinking water supplies.
9619.
Response action contractors.
9620.
Federal facilities.
9621.
Cleanup standards.
9622.
Settlements.
9623.
Reimbursement to local governments.
9624.
Methane recovery.
9625.
Section 6921(b)(3)(A)(i) waste.
9626.
Indian tribes.
9627.
Recycling transactions.
9628.
State response programs.
SUBCHAPTER II—HAZARDOUS SUBSTANCE
RESPONSE REVENUE
PART A—HAZARDOUS SUBSTANCE RESPONSE TRUST
FUND
9631 to 9633. Repealed.
PART B—POST-CLOSURE LIABILITY TRUST FUND
9641.
Repealed.
SUBCHAPTER III—MISCELLANEOUS PROVISIONS
9651.
9652.
9653.
9654.

Reports and studies.
Effective dates; savings provisions.
Repealed.
Applicability of Federal water pollution control funding, etc., provisions.
9655.
Legislative veto of rule or regulation.
9656.
Transportation of hazardous substances; listing as hazardous material; liability for release.
9657.
Separability; contribution.
9658.
Actions under State law for damages from exposure to hazardous substances.
9659.
Citizens suits.
9660.
Research, development, and demonstration.
9660a.
Grant program.
9661.
Love Canal property acquisition.
9662.
Limitation on contract and borrowing authority.
SUBCHAPTER IV—POLLUTION INSURANCE
9671.
9672.
9673.
9674.
9675.

Definitions.
State laws; scope of subchapter.
Risk retention groups.
Purchasing groups.
Applicability of securities laws.

SUBCHAPTER I—HAZARDOUS SUBSTANCES
RELEASES, LIABILITY, COMPENSATION
§ 9601. Definitions
For purpose of this subchapter—
(1) The term ‘‘act of God’’ means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable,
and irresistible character, the effects of which
could not have been prevented or avoided by
the exercise of due care or foresight.
(2) The term ‘‘Administrator’’ means the Administrator of the United States Environmental Protection Agency.
(3) The term ‘‘barrel’’ means forty-two
United States gallons at sixty degrees Fahrenheit.

Page 6808

(4) The term ‘‘claim’’ means a demand in
writing for a sum certain.
(5) The term ‘‘claimant’’ means any person
who presents a claim for compensation under
this chapter.
(6) The term ‘‘damages’’ means damages for
injury or loss of natural resources as set forth
in section 9607(a) or 9611(b) of this title.
(7) The term ‘‘drinking water supply’’ means
any raw or finished water source that is or
may be used by a public water system (as defined in the Safe Drinking Water Act [42
U.S.C. 300f et seq.]) or as drinking water by
one or more individuals.
(8) The term ‘‘environment’’ means (A) the
navigable waters, the waters of the contiguous
zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the
Magnuson-Stevens Fishery Conservation and
Management Act [16 U.S.C. 1801 et seq.], and
(B) any other surface water, ground water,
drinking water supply, land surface or subsurface strata, or ambient air within the
United States or under the jurisdiction of the
United States.
(9) The term ‘‘facility’’ means (A) any building, structure, installation, equipment, pipe or
pipeline (including any pipe into a sewer or
publicly owned treatment works), well, pit,
pond, lagoon, impoundment, ditch, landfill,
storage container, motor vehicle, rolling
stock, or aircraft, or (B) any site or area where
a hazardous substance has been deposited,
stored, disposed of, or placed, or otherwise
come to be located; but does not include any
consumer product in consumer use or any vessel.
(10) The term ‘‘federally permitted release’’
means (A) discharges in compliance with a
permit under section 402 of the Federal Water
Pollution Control Act [33 U.S.C. 1342], (B) discharges resulting from circumstances identified and reviewed and made part of the public
record with respect to a permit issued or
modified under section 402 of the Federal
Water Pollution Control Act and subject to a
condition of such permit, (C) continuous or anticipated intermittent discharges from a point
source, identified in a permit or permit application under section 402 of the Federal Water
Pollution Control Act, which are caused by
events occurring within the scope of relevant
operating or treatment systems, (D) discharges in compliance with a legally enforceable permit under section 404 of the Federal
Water Pollution Control Act [33 U.S.C. 1344],
(E) releases in compliance with a legally enforceable final permit issued pursuant to section 3005(a) through (d) of the Solid Waste Disposal Act [42 U.S.C. 6925(a)–(d)] from a hazardous waste treatment, storage, or disposal facility when such permit specifically identifies
the hazardous substances and makes such substances subject to a standard of practice, control procedure or bioassay limitation or condition, or other control on the hazardous substances in such releases, (F) any release in
compliance with a legally enforceable permit
issued under section 1412 of title 33 of 1 section
1 So

in original. Probably should be ‘‘or’’.

Page 6809

TITLE 42—THE PUBLIC HEALTH AND WELFARE

1413 of title 33, (G) any injection of fluids authorized under Federal underground injection
control programs or State programs submitted
for Federal approval (and not disapproved by
the Administrator of the Environmental Protection Agency) pursuant to part C of the Safe
Drinking Water Act [42 U.S.C. 300h et seq.], (H)
any emission into the air subject to a permit
or control regulation under section 111 [42
U.S.C. 7411], section 112 [42 U.S.C. 7412], title I
part C [42 U.S.C. 7470 et seq.], title I part D [42
U.S.C. 7501 et seq.], or State implementation
plans submitted in accordance with section 110
of the Clean Air Act [42 U.S.C. 7410] (and not
disapproved by the Administrator of the Environmental Protection Agency), including any
schedule or waiver granted, promulgated, or
approved under these sections, (I) any injection of fluids or other materials authorized
under applicable State law (i) for the purpose
of stimulating or treating wells for the production of crude oil, natural gas, or water, (ii)
for the purpose of secondary, tertiary, or other
enhanced recovery of crude oil or natural gas,
or (iii) which are brought to the surface in
conjunction with the production of crude oil
or natural gas and which are reinjected, (J)
the introduction of any pollutant into a publicly owned treatment works when such pollutant is specified in and in compliance with
applicable pretreatment standards of section
307(b) or (c) of the Clean Water Act [33 U.S.C.
1317(b), (c)] and enforceable requirements in a
pretreatment program submitted by a State or
municipality for Federal approval under section 402 of such Act [33 U.S.C. 1342], and (K)
any release of source, special nuclear, or byproduct material, as those terms are defined
in the Atomic Energy Act of 1954 [42 U.S.C.
2011 et seq.], in compliance with a legally enforceable license, permit, regulation, or order
issued pursuant to the Atomic Energy Act of
1954.
(11) The term ‘‘Fund’’ or ‘‘Trust Fund’’
means the Hazardous Substance Superfund established by section 9507 of title 26.
(12) The term ‘‘ground water’’ means water
in a saturated zone or stratum beneath the
surface of land or water.
(13) The term ‘‘guarantor’’ means any person, other than the owner or operator, who
provides evidence of financial responsibility
for an owner or operator under this chapter.
(14) The term ‘‘hazardous substance’’ means
(A) any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control Act [33 U.S.C. 1321(b)(2)(A)], (B)
any element, compound, mixture, solution, or
substance designated pursuant to section 9602
of this title, (C) any hazardous waste having
the characteristics identified under or listed
pursuant to section 3001 of the Solid Waste
Disposal Act [42 U.S.C. 6921] (but not including
any waste the regulation of which under the
Solid Waste Disposal Act [42 U.S.C. 6901 et
seq.] has been suspended by Act of Congress),
(D) any toxic pollutant listed under section
307(a) of the Federal Water Pollution Control
Act [33 U.S.C. 1317(a)], (E) any hazardous air
pollutant listed under section 112 of the Clean
Air Act [42 U.S.C. 7412], and (F) any immi-

§ 9601

nently hazardous chemical substance or mixture with respect to which the Administrator
has taken action pursuant to section 7 of the
Toxic Substances Control Act [15 U.S.C. 2606].
The term does not include petroleum, including crude oil or any fraction thereof which is
not otherwise specifically listed or designated
as a hazardous substance under subparagraphs
(A) through (F) of this paragraph, and the
term does not include natural gas, natural gas
liquids, liquefied natural gas, or synthetic gas
usable for fuel (or mixtures of natural gas and
such synthetic gas).
(15) The term ‘‘navigable waters’’ or ‘‘navigable waters of the United States’’ means the
waters of the United States, including the territorial seas.
(16) The term ‘‘natural resources’’ means
land, fish, wildlife, biota, air, water, ground
water, drinking water supplies, and other such
resources belonging to, managed by, held in
trust by, appertaining to, or otherwise controlled by the United States (including the resources of the fishery conservation zone established by the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1801
et seq.]), any State or local government, any
foreign government, any Indian tribe, or, if
such resources are subject to a trust restriction on alienation, any member of an Indian
tribe.
(17) The term ‘‘offshore facility’’ means any
facility of any kind located in, on, or under,
any of the navigable waters of the United
States, and any facility of any kind which is
subject to the jurisdiction of the United
States and is located in, on, or under any
other waters, other than a vessel or a public
vessel.
(18) The term ‘‘onshore facility’’ means any
facility (including, but not limited to, motor
vehicles and rolling stock) of any kind located
in, on, or under, any land or nonnavigable waters within the United States.
(19) The term ‘‘otherwise subject to the jurisdiction of the United States’’ means subject
to the jurisdiction of the United States by virtue of United States citizenship, United States
vessel documentation or numbering, or as provided by international agreement to which the
United States is a party.
(20)(A) The term ‘‘owner or operator’’ means
(i) in the case of a vessel, any person owning,
operating, or chartering by demise, such vessel, (ii) in the case of an onshore facility or an
offshore facility, any person owning or operating such facility, and (iii) in the case of any
facility, title or control of which was conveyed
due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to a
unit of State or local government, any person
who owned, operated, or otherwise controlled
activities at such facility immediately beforehand. Such term does not include a person,
who, without participating in the management of a vessel or facility, holds indicia of
ownership primarily to protect his security interest in the vessel or facility.
(B) In the case of a hazardous substance
which has been accepted for transportation by
a common or contract carrier and except as

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE

provided in section 9607(a)(3) or (4) of this
title, (i) the term ‘‘owner or operator’’ shall
mean such common carrier or other bona fide
for hire carrier acting as an independent contractor during such transportation, (ii) the
shipper of such hazardous substance shall not
be considered to have caused or contributed to
any release during such transportation which
resulted solely from circumstances or conditions beyond his control.
(C) In the case of a hazardous substance
which has been delivered by a common or contract carrier to a disposal or treatment facility and except as provided in section 9607(a)(3)
or (4) of this title, (i) the term ‘‘owner or operator’’ shall not include such common or contract carrier, and (ii) such common or contract carrier shall not be considered to have
caused or contributed to any release at such
disposal or treatment facility resulting from
circumstances or conditions beyond its control.
(D) The term ‘‘owner or operator’’ does not
include a unit of State or local government
which acquired ownership or control involuntarily through bankruptcy, tax delinquency,
abandonment, or other circumstances in
which the government involuntarily acquires
title by virtue of its function as sovereign.
The exclusion provided under this paragraph
shall not apply to any State or local government which has caused or contributed to the
release or threatened release of a hazardous
substance from the facility, and such a State
or local government shall be subject to the
provisions of this chapter in the same manner
and to the same extent, both procedurally and
substantively, as any nongovernmental entity,
including liability under section 9607 of this
title.
(E) EXCLUSION OF LENDERS NOT PARTICIPANTS
IN MANAGEMENT.—
(i) INDICIA OF OWNERSHIP TO PROTECT SECURITY.—The term ‘‘owner or operator’’ does
not include a person that is a lender that,
without participating in the management of
a vessel or facility, holds indicia of ownership primarily to protect the security interest of the person in the vessel or facility.
(ii) FORECLOSURE.—The term ‘‘owner or operator’’ does not include a person that is a
lender that did not participate in management of a vessel or facility prior to foreclosure, notwithstanding that the person—
(I) forecloses on the vessel or facility;
and
(II) after foreclosure, sells, re-leases (in
the case of a lease finance transaction), or
liquidates the vessel or facility, maintains
business activities, winds up operations,
undertakes a response action under section
9607(d)(1) of this title or under the direction of an on-scene coordinator appointed
under the National Contingency Plan, with
respect to the vessel or facility, or takes
any other measure to preserve, protect, or
prepare the vessel or facility prior to sale
or disposition,
if the person seeks to sell, re-lease (in the
case of a lease finance transaction), or
otherwise divest the person of the vessel or

Page 6810

facility at the earliest practicable, commercially reasonable time, on commercially reasonable terms, taking into account market
conditions and legal and regulatory requirements.
(F) PARTICIPATION IN MANAGEMENT.—For purposes of subparagraph (E)—
(i) the term ‘‘participate in management’’—
(I) means actually participating in the
management or operational affairs of a
vessel or facility; and
(II) does not include merely having the
capacity to influence, or the unexercised
right to control, vessel or facility operations;
(ii) a person that is a lender and that holds
indicia of ownership primarily to protect a
security interest in a vessel or facility shall
be considered to participate in management
only if, while the borrower is still in possession of the vessel or facility encumbered by
the security interest, the person—
(I) exercises decisionmaking control over
the environmental compliance related to
the vessel or facility, such that the person
has undertaken responsibility for the hazardous substance handling or disposal
practices related to the vessel or facility;
or
(II) exercises control at a level comparable to that of a manager of the vessel
or facility, such that the person has assumed or manifested responsibility—
(aa) for the overall management of the
vessel or facility encompassing day-today decisionmaking with respect to environmental compliance; or
(bb) over all or substantially all of the
operational functions (as distinguished
from financial or administrative functions) of the vessel or facility other than
the function of environmental compliance;
(iii) the term ‘‘participate in management’’ does not include performing an act or
failing to act prior to the time at which a security interest is created in a vessel or facility; and
(iv) the term ‘‘participate in management’’
does not include—
(I) holding a security interest or abandoning or releasing a security interest;
(II) including in the terms of an extension of credit, or in a contract or security
agreement relating to the extension, a
covenant, warranty, or other term or condition that relates to environmental compliance;
(III) monitoring or enforcing the terms
and conditions of the extension of credit or
security interest;
(IV) monitoring or undertaking 1 or
more inspections of the vessel or facility;
(V) requiring a response action or other
lawful means of addressing the release or
threatened release of a hazardous substance in connection with the vessel or facility prior to, during, or on the expiration
of the term of the extension of credit;

Page 6811

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(VI) providing financial or other advice
or counseling in an effort to mitigate, prevent, or cure default or diminution in the
value of the vessel or facility;
(VII) restructuring, renegotiating, or
otherwise agreeing to alter the terms and
conditions of the extension of credit or security interest, exercising forbearance;
(VIII) exercising other remedies that
may be available under applicable law for
the breach of a term or condition of the
extension of credit or security agreement;
or
(IX) conducting a response action under
section 9607(d) of this title or under the direction of an on-scene coordinator appointed under the National Contingency
Plan,
if the actions do not rise to the level of participating in management (within the meaning of clauses (i) and (ii)).
(G) OTHER TERMS.—As used in this chapter:
(i) EXTENSION OF CREDIT.—The term ‘‘extension of credit’’ includes a lease finance
transaction—
(I) in which the lessor does not initially
select the leased vessel or facility and does
not during the lease term control the daily
operations or maintenance of the vessel or
facility; or
(II) that conforms with regulations issued by the appropriate Federal banking
agency or the appropriate State bank supervisor (as those terms are defined in section 1813 of title 12 2 or with regulations issued by the National Credit Union Administration Board, as appropriate.
(ii) FINANCIAL OR ADMINISTRATIVE FUNCTION.—The term ‘‘financial or administrative function’’ includes a function such as
that of a credit manager, accounts payable
officer, accounts receivable officer, personnel manager, comptroller, or chief financial
officer, or a similar function.
(iii) FORECLOSURE; FORECLOSE.—The terms
‘‘foreclosure’’ and ‘‘foreclose’’ mean, respectively, acquiring, and to acquire, a vessel or
facility through—
(I)(aa) purchase at sale under a judgment
or decree, power of sale, or nonjudicial
foreclosure sale;
(bb) a deed in lieu of foreclosure, or similar conveyance from a trustee; or
(cc) repossession,
if the vessel or facility was security for an
extension of credit previously contracted;
(II) conveyance pursuant to an extension
of credit previously contracted, including
the termination of a lease agreement; or
(III) any other formal or informal manner by which the person acquires, for subsequent disposition, title to or possession
of a vessel or facility in order to protect
the security interest of the person.
(iv) LENDER.—The term ‘‘lender’’ means—
(I) an insured depository institution (as
defined in section 1813 of title 12);
2 So in original. Probably should be followed by a closing
parenthesis.

§ 9601

(II) an insured credit union (as defined in
section 1752 of title 12);
(III) a bank or association chartered
under the Farm Credit Act of 1971 (12
U.S.C. 2001 et seq.);
(IV) a leasing or trust company that is
an affiliate of an insured depository institution;
(V) any person (including a successor or
assignee of any such person) that makes a
bona fide extension of credit to or takes or
acquires a security interest from a nonaffiliated person;
(VI) the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Agricultural
Mortgage Corporation, or any other entity
that in a bona fide manner buys or sells
loans or interests in loans;
(VII) a person that insures or guarantees
against a default in the repayment of an
extension of credit, or acts as a surety
with respect to an extension of credit, to a
nonaffiliated person; and
(VIII) a person that provides title insurance and that acquires a vessel or facility
as a result of assignment or conveyance in
the course of underwriting claims and
claims settlement.
(v) OPERATIONAL FUNCTION.—The term
‘‘operational function’’ includes a function
such as that of a facility or plant manager,
operations manager, chief operating officer,
or chief executive officer.
(vi) SECURITY INTEREST.—The term ‘‘security interest’’ includes a right under a mortgage, deed of trust, assignment, judgment
lien, pledge, security agreement, factoring
agreement, or lease and any other right accruing to a person to secure the repayment
of money, the performance of a duty, or any
other obligation by a nonaffiliated person.
(21) The term ‘‘person’’ means an individual,
firm, corporation, association, partnership,
consortium, joint venture, commercial entity,
United States Government, State, municipality, commission, political subdivision of a
State, or any interstate body.
(22) The term ‘‘release’’ means any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance
or pollutant or contaminant), but excludes (A)
any release which results in exposure to persons solely within a workplace, with respect to
a claim which such persons may assert against
the employer of such persons, (B) emissions
from the engine exhaust of a motor vehicle,
rolling stock, aircraft, vessel, or pipeline
pumping station engine, (C) release of source,
byproduct, or special nuclear material from a
nuclear incident, as those terms are defined in
the Atomic Energy Act of 1954 [42 U.S.C. 2011
et seq.], if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under section 170 of such Act [42 U.S.C.

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE

2210], or, for the purposes of section 9604 of this
title or any other response action, any release
of source byproduct, or special nuclear material from any processing site designated under
section 7912(a)(1) or 7942(a) of this title, and
(D) the normal application of fertilizer.
(23) The terms ‘‘remove’’ or ‘‘removal’’
means 3 the cleanup or removal of released
hazardous substances from the environment,
such actions as may be necessary taken in the
event of the threat of release of hazardous substances into the environment, such actions as
may be necessary to monitor, assess, and
evaluate the release or threat of release of
hazardous substances, the disposal of removed
material, or the taking of such other actions
as may be necessary to prevent, minimize, or
mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release.
The term includes, in addition, without being
limited to, security fencing or other measures
to limit access, provision of alternative water
supplies, temporary evacuation and housing of
threatened individuals not otherwise provided
for, action taken under section 9604(b) of this
title, and any emergency assistance which
may be provided under the Disaster Relief and
Emergency Assistance Act [42 U.S.C. 5121 et
seq.].
(24) The terms ‘‘remedy’’ or ‘‘remedial action’’ means 3 those actions consistent with
permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or
minimize the release of hazardous substances
so that they do not migrate to cause substantial danger to present or future public health
or welfare or the environment. The term includes, but is not limited to, such actions at
the location of the release as storage, confinement, perimeter protection using dikes,
trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances
and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring
reasonably required to assure that such actions protect the public health and welfare
and the environment. The term includes the
costs of permanent relocation of residents and
businesses and community facilities where the
President determines that, alone or in combination with other measures, such relocation is
more cost-effective than and environmentally
preferable to the transportation, storage,
treatment, destruction, or secure disposition
offsite of hazardous substances, or may otherwise be necessary to protect the public health
or welfare; the term includes offsite transport
and offsite storage, treatment, destruction, or
secure disposition of hazardous substances and
associated contaminated materials.
(25) The terms ‘‘respond’’ or ‘‘response’’
means 3 remove, removal, remedy, and reme-

dial action;,4 all such terms (including the
terms ‘‘removal’’ and ‘‘remedial action’’) include enforcement activities related thereto.
(26) The terms ‘‘transport’’ or ‘‘transportation’’ means 3 the movement of a hazardous
substance by any mode, including a hazardous
liquid pipeline facility (as defined in section
60101(a) of title 49), and in the case of a hazardous substance which has been accepted for
transportation by a common or contract carrier, the term ‘‘transport’’ or ‘‘transportation’’
shall include any stoppage in transit which is
temporary, incidental to the transportation
movement, and at the ordinary operating convenience of a common or contract carrier, and
any such stoppage shall be considered as a
continuity of movement and not as the storage of a hazardous substance.
(27) The terms ‘‘United States’’ and ‘‘State’’
include the several States of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American
Samoa, the United States Virgin Islands, the
Commonwealth of the Northern Marianas, and
any other territory or possession over which
the United States has jurisdiction.
(28) The term ‘‘vessel’’ means every description of watercraft or other artificial contrivance used, or capable of being used, as a means
of transportation on water.
(29) The terms ‘‘disposal’’, ‘‘hazardous
waste’’, and ‘‘treatment’’ shall have the meaning provided in section 1004 of the Solid Waste
Disposal Act [42 U.S.C. 6903].
(30) The terms ‘‘territorial sea’’ and ‘‘contiguous zone’’ shall have the meaning provided in
section 502 of the Federal Water Pollution
Control Act [33 U.S.C. 1362].
(31) The term ‘‘national contingency plan’’
means the national contingency plan published under section 311(c) 5 of the Federal
Water Pollution Control Act or revised pursuant to section 9605 of this title.
(32) The terms ‘‘liable’’ or ‘‘liability’’ under
this subchapter shall be construed to be the
standard of liability which obtains under section 311 of the Federal Water Pollution Control Act [33 U.S.C. 1321].
(33) The term ‘‘pollutant or contaminant’’
shall include, but not be limited to, any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure,
ingestion, inhalation, or assimilation into any
organism, either directly from the environment or indirectly by ingestion through food
chains, will or may reasonably be anticipated
to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological
malfunctions (including malfunctions in reproduction) or physical deformations, in such
organisms or their offspring; except that the
term ‘‘pollutant or contaminant’’ shall not include petroleum, including crude oil or any
fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of
paragraph (14) and shall not include natural
4 So

3 So

in original. Probably should be ‘‘mean’’.

Page 6812

in original.
References in Text note below.

5 See

Page 6813

TITLE 42—THE PUBLIC HEALTH AND WELFARE

gas, liquefied natural gas, or synthetic gas of
pipeline quality (or mixtures of natural gas
and such synthetic gas).
(34) The term ‘‘alternative water supplies’’
includes, but is not limited to, drinking water
and household water supplies.
(35)(A) The term ‘‘contractual relationship’’,
for the purpose of section 9607(b)(3) of this
title, includes, but is not limited to, land contracts, deeds, easements, leases, or other instruments transferring title or possession, unless the real property on which the facility
concerned is located was acquired by the defendant after the disposal or placement of the
hazardous substance on, in, or at the facility,
and one or more of the circumstances described in clause (i), (ii), or (iii) is also established by the defendant by a preponderance of
the evidence:
(i) At the time the defendant acquired the
facility the defendant did not know and had
no reason to know that any hazardous substance which is the subject of the release or
threatened release was disposed of on, in, or
at the facility.
(ii) The defendant is a government entity
which acquired the facility by escheat, or
through any other involuntary transfer or
acquisition, or through the exercise of eminent domain authority by purchase or condemnation.
(iii) The defendant acquired the facility by
inheritance or bequest.
In addition to establishing the foregoing, the
defendant must establish that the defendant
has satisfied the requirements of section
9607(b)(3)(a) and (b) of this title, provides full
cooperation, assistance, and facility access to
the persons that are authorized to conduct response actions at the facility (including the
cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response action at the facility), is in compliance with any
land use restrictions established or relied on
in connection with the response action at a facility, and does not impede the effectiveness
or integrity of any institutional control employed at the facility in connection with a response action.
(B) REASON TO KNOW.—
(i) ALL APPROPRIATE INQUIRIES.—To establish that the defendant had no reason to
know of the matter described in subparagraph (A)(i), the defendant must demonstrate to a court that—
(I) on or before the date on which the defendant acquired the facility, the defendant carried out all appropriate inquiries,
as provided in clauses (ii) and (iv), into the
previous ownership and uses of the facility
in accordance with generally accepted
good commercial and customary standards
and practices; and
(II) the defendant took reasonable steps
to—
(aa) stop any continuing release;
(bb) prevent any threatened future release; and
(cc) prevent or limit any human, environmental, or natural resource exposure

§ 9601

to any previously released hazardous
substance.
(ii) STANDARDS AND PRACTICES.—Not later
than 2 years after January 11, 2002, the Administrator shall by regulation establish
standards and practices for the purpose of
satisfying the requirement to carry out all
appropriate inquiries under clause (i).
(iii) CRITERIA.—In promulgating regulations that establish the standards and practices referred to in clause (ii), the Administrator shall include 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 for the purpose of gathering information regarding the potential for contamination at the facility.
(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
since the property was first developed.
(IV) Searches for recorded environmental cleanup liens against the facility
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 hazardous waste handling, generation,
treatment, disposal, and spill records, concerning contamination at or near the facility.
(VI) Visual inspections of the facility
and of adjoining properties.
(VII) Specialized knowledge or experience on the part of the defendant.
(VIII) The relationship of the purchase
price to the value of the property, if the
property was not contaminated.
(IX) Commonly known or reasonably ascertainable information about the property.
(X) The degree of obviousness of the
presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation.
(iv) INTERIM STANDARDS AND PRACTICES.—
(I) PROPERTY PURCHASED BEFORE MAY 31,
1997.—With respect to property purchased
before May 31, 1997, in making a determination with respect to a defendant described in clause (i), a court shall take
into account—
(aa) any specialized knowledge or experience on the part of the defendant;
(bb) the relationship of the purchase
price to the value of the property, if the
property was not contaminated;
(cc) commonly known or reasonably
ascertainable information about the
property;
(dd) the obviousness of the presence or
likely presence of contamination at the
property; and
(ee) the ability of the defendant to detect the contamination by appropriate
inspection.

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE
(II) PROPERTY PURCHASED ON OR AFTER
MAY 31, 1997.—With respect to property purchased on or after May 31, 1997, and until
the Administrator 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 1 Environmental
Site Assessment Process’’, shall satisfy the
requirements in clause (i).

(v) SITE INSPECTION AND TITLE SEARCH.—In
the case of property for residential use or
other similar use purchased by a nongovernmental or noncommercial entity, a facility
inspection and title search that reveal no
basis for further investigation shall be considered to satisfy the requirements of this
subparagraph.
(C) Nothing in this paragraph or in section
9607(b)(3) of this title shall diminish the liability of any previous owner or operator of such
facility who would otherwise be liable under
this chapter. Notwithstanding this paragraph,
if the defendant obtained actual knowledge of
the release or threatened release of a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to another person without disclosing such
knowledge, such defendant shall be treated as
liable under section 9607(a)(1) of this title and
no defense under section 9607(b)(3) of this title
shall be available to such defendant.
(D) Nothing in this paragraph shall affect
the liability under this chapter of a defendant
who, by any act or omission, caused or contributed to the release or threatened release of
a hazardous substance which is the subject of
the action relating to the facility.
(36) The term ‘‘Indian tribe’’ means any Indian tribe, band, nation, or other organized
group or community, including any Alaska
Native village but not including any Alaska
Native regional or village corporation, which
is recognized as eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.
(37)(A) The term ‘‘service station dealer’’
means any person—
(i) who owns or operates a motor vehicle
service station, filling station, garage, or
similar retail establishment engaged in the
business of selling, repairing, or servicing
motor vehicles, where a significant percentage of the gross revenue of the establishment is derived from the fueling, repairing,
or servicing of motor vehicles, and
(ii) who accepts for collection, accumulation, and delivery to an oil recycling facility, recycled oil that (I) has been removed
from the engine of a light duty motor vehicle or household appliances by the owner of
such vehicle or appliances, and (II) is presented, by such owner, to such person for
collection, accumulation, and delivery to an
oil recycling facility.
(B) For purposes of section 9614(c) of this
title, the term ‘‘service station dealer’’ shall,

Page 6814

notwithstanding the provisions of subparagraph (A), include any government agency
that establishes a facility solely for the purpose of accepting recycled oil that satisfies
the criteria set forth in subclauses (I) and (II)
of subparagraph (A)(ii), and, with respect to
recycled oil that satisfies the criteria set forth
in subclauses (I) and (II), owners or operators
of refuse collection services who are compelled
by State law to collect, accumulate, and deliver such oil to an oil recycling facility.
(C) The President shall promulgate regulations regarding the determination of what
constitutes a significant percentage of the
gross revenues of an establishment for purposes of this paragraph.
(38) The term ‘‘incineration vessel’’ means
any vessel which carries hazardous substances
for the purpose of incineration of such substances, so long as such substances or residues
of such substances are on board.
(39) BROWNFIELD SITE.—
(A) IN GENERAL.—The term ‘‘brownfield
site’’ means real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or
contaminant.
(B) EXCLUSIONS.—The term ‘‘brownfield
site’’ does not include—
(i) a facility that is the subject of a
planned or ongoing removal action under
this subchapter;
(ii) a facility that is listed on the National Priorities List or is proposed for
listing;
(iii) a facility that is the subject of a
unilateral administrative order, a court
order, an administrative order on consent
or judicial consent decree that has been issued to or entered into by the parties
under this chapter;
(iv) a facility that is the subject of a unilateral administrative order, a court order,
an administrative order on consent or judicial consent decree that has been issued
to or entered into by the parties, or a facility to which a permit has been issued by
the United States or an authorized State
under the Solid Waste Disposal Act (42
U.S.C. 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. 1321) [33
U.S.C. § 1251 et seq.], the Toxic Substances
Control Act (15 U.S.C. 2601 et seq.), or the
Safe Drinking Water Act (42 U.S.C. 300f et
seq.);
(v) a facility that—
(I) is subject to corrective action under
section 3004(u) or 3008(h) of the Solid
Waste Disposal Act (42 U.S.C. 6924(u),
6928(h)); and
(II) to which a corrective action permit
or order has been issued or modified to
require the implementation of corrective
measures;
(vi) a land disposal unit with respect to
which—
(I) a closure notification under subtitle
C of the Solid Waste Disposal Act (42
U.S.C. 6921 et seq.) has been submitted;
and

Page 6815

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(II) closure requirements have been
specified in a closure plan or permit;
(vii) a facility that is subject to the jurisdiction, custody, or control of a department, agency, or instrumentality of the
United States, except for land held in trust
by the United States for an Indian tribe;
(viii) a portion of a facility—
(I) at which there has been a release of
polychlorinated biphenyls; and
(II) that is subject to remediation
under the Toxic Substances Control Act
(15 U.S.C. 2601 et seq.); or
(ix) a portion of a facility, for which portion, assistance for response activity has
been obtained under subtitle I of the Solid
Waste Disposal Act (42 U.S.C. 6991 et seq.)
from the Leaking Underground Storage
Tank Trust Fund established under section
9508 of title 26.
(C) SITE-BY-SITE DETERMINATIONS.—Notwithstanding subparagraph (B) and on a siteby-site basis, the President may authorize
financial assistance under section 9604(k) of
this title to an eligible entity at a site included in clause (i), (iv), (v), (vi), (viii), or
(ix) of subparagraph (B) if the President
finds that financial assistance will protect
human health and the environment, and either promote economic development or enable the creation of, preservation of, or addition to parks, greenways, undeveloped property, other recreational property, or other
property used for nonprofit purposes.
(D) ADDITIONAL AREAS.—For the purposes
of section 9604(k) of this title, the term
‘‘brownfield site’’ includes a site that—
(i) meets the definition of ‘‘brownfield
site’’ under subparagraphs (A) through (C);
and
(ii)(I) is contaminated by a controlled
substance (as defined in section 802 of title
21);
(II)(aa) is contaminated by petroleum or
a petroleum product excluded from the
definition of ‘‘hazardous substance’’ under
this section; and
(bb) is a site determined by the Administrator or the State, as appropriate, to be—
(AA) of relatively low risk, as compared with other petroleum-only sites in
the State; and
(BB) a site for which there is no viable
responsible party and which will be assessed, investigated, or cleaned up by a
person that is not potentially liable for
cleaning up the site; and
(cc) is not subject to any order issued
under section 9003(h) of the Solid Waste
Disposal Act (42 U.S.C. 6991b(h)); or
(III) is mine-scarred land.
(40) BONA FIDE PROSPECTIVE PURCHASER.—The
term ‘‘bona fide prospective purchaser’’ means
a person (or a tenant of a person) that acquires
ownership of a facility after January 11, 2002,
and that establishes each of the following by a
preponderance of the evidence:
(A) DISPOSAL PRIOR TO ACQUISITION.—All
disposal of hazardous substances at the facil-

§ 9601

ity occurred before the person acquired the
facility.
(B) INQUIRIES.—
(i) IN GENERAL.—The person made all appropriate inquiries into the previous ownership and uses of the facility in accordance with generally accepted good commercial and customary standards and
practices in accordance with clauses (ii)
and (iii).
(ii) STANDARDS AND PRACTICES.—The
standards and practices referred to in
clauses (ii) and (iv) of paragraph (35)(B)
shall be considered to satisfy the requirements of this subparagraph.
(iii) RESIDENTIAL USE.—In the case of
property in residential or other similar use
at the time of purchase by a nongovernmental or noncommercial entity, a facility
inspection and title search that reveal no
basis for further investigation shall be
considered to satisfy the requirements of
this subparagraph.
(C) NOTICES.—The person provides all legally required notices with respect to the
discovery or release of any hazardous substances at the facility.
(D) CARE.—The person exercises appropriate care with respect to hazardous substances found at the facility by taking reasonable steps to—
(i) stop any continuing release;
(ii) prevent any threatened future release; and
(iii) prevent or limit human, environmental, or natural resource exposure to
any previously released hazardous substance.
(E) COOPERATION, ASSISTANCE, AND ACCESS.—The person provides full cooperation,
assistance, and access to persons that are
authorized to conduct response actions or
natural resource restoration at a vessel or
facility (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any
complete or partial response actions or natural resource restoration at the vessel or facility).
(F) INSTITUTIONAL CONTROL.—The person—
(i) is in compliance with any land use restrictions established or relied on in connection with the response action at a vessel or facility; and
(ii) does not impede the effectiveness or
integrity of any institutional control employed at the vessel or facility in connection with a response action.
(G) REQUESTS; SUBPOENAS.—The person
complies with any request for information
or administrative subpoena issued by the
President under this chapter.
(H) NO AFFILIATION.—The person is not—
(i) potentially liable, or affiliated with
any other person that is potentially liable,
for response costs at a facility through—
(I) any direct or indirect familial relationship; or
(II) any contractual, corporate, or financial relationship (other than a con-

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE
tractual, corporate, or financial relationship that is created by the instruments by which title to the facility is
conveyed or financed or by a contract for
the sale of goods or services); or
(ii) the result of a reorganization of a
business entity that was potentially liable.

(41) ELIGIBLE RESPONSE SITE.—
(A) IN GENERAL.—The term ‘‘eligible response site’’ means a site that meets the definition of a brownfield site in subparagraphs
(A) and (B) of paragraph (39), as modified by
subparagraphs (B) and (C) of this paragraph.
(B) INCLUSIONS.—The term ‘‘eligible response site’’ includes—
(i) notwithstanding paragraph (39)(B)(ix),
a portion of a facility, for which portion
assistance for response activity has been
obtained under subtitle I of the Solid
Waste Disposal Act (42 U.S.C. 6991 et seq.)
from the Leaking Underground Storage
Tank Trust Fund established under section
9508 of title 26; or
(ii) a site for which, notwithstanding the
exclusions provided in subparagraph (C) or
paragraph (39)(B), the President determines, on a site-by-site basis and after
consultation with the State, that limitations on enforcement under section 9628 of
this title at sites specified in clause (iv),
(v), (vi) or (viii) of paragraph (39)(B) would
be appropriate and will—
(I) protect human health and the environment; and
(II) promote economic development or
facilitate the creation of, preservation
of, or addition to a park, a greenway, undeveloped property, recreational property, or other property used for nonprofit purposes.
(C) EXCLUSIONS.—The term ‘‘eligible response site’’ does not include—
(i) a facility for which the President—
(I) conducts or has conducted a preliminary assessment or site inspection;
and
(II) after consultation with the State,
determines or has determined that the
site obtains a preliminary score sufficient for possible listing on the National
Priorities List, or that the site otherwise
qualifies for listing on the National Priorities List; unless the President has
made a determination that no further
Federal action will be taken; or
(ii) facilities that the President determines warrant particular consideration as
identified by regulation, such as sites posing a threat to a sole-source drinking
water aquifer or a sensitive ecosystem.
(Pub. L. 96–510, title I, § 101, Dec. 11, 1980, 94 Stat.
2767; Pub. L. 96–561, title II, § 238(b), Dec. 22, 1980,
94 Stat. 3300; Pub. L. 99–499, title I, §§ 101, 114(b),
127(a), title V, § 517(c)(2), Oct. 17, 1986, 100 Stat.
1615, 1652, 1692, 1774; Pub. L. 100–707, title I,
§ 109(v), Nov. 23, 1988, 102 Stat. 4710; Pub. L.
103–429, § 7(e)(1), Oct. 31, 1994, 108 Stat. 4390; Pub.
L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], title II, § 2502(b), Sept. 30, 1996, 110 Stat.

Page 6816

3009, 3009–41, 3009–464; Pub. L. 104–287, § 6(j)(1),
Oct. 11, 1996, 110 Stat. 3399; Pub. L. 106–74, title
IV, § 427, Oct. 20, 1999, 113 Stat. 1095; Pub. L.
107–118, title II, §§ 211(a), 222(a), 223, 231(a), Jan.
11, 2002, 115 Stat. 2360, 2370, 2372, 2375.)
REFERENCES IN TEXT
This chapter, referred to in pars. (5), (13), (20)(D), (G),
(35)(C), (D), (39)(B)(iii), and (40)(G), was in the original
‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2767, as amended, known as the Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980. For complete classification of this Act to
the Code, see Short Title note below and Tables.
The Safe Drinking Water Act, referred to in pars. (7),
(10), and (39)(B)(iv), is title XIV of act July 1, 1944, as
added Dec. 16, 1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660,
as amended, which is classified generally to subchapter
XII (§ 300f et seq.) of chapter 6A of this title. Part C of
the Safe Drinking Water Act is classified generally to
part C (§ 300h et seq.) of subchapter XII of chapter 6A of
this title. For complete classification of this Act to the
Code, see Short Title note set out under section 201 of
this title and Tables.
The Magnuson-Stevens Fishery Conservation and
Management Act, referred to in pars. (8) and (16), is
Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, as amended,
which is classified principally to chapter 38 (§ 1801 et
seq.) of Title 16, Conservation. The fishery conservation
zone established by this Act, referred to in par. (16),
was established by section 101 of this Act (16 U.S.C.
1811), which as amended generally by Pub. L. 99–659,
title I, § 101(b), Nov. 14, 1986, 100 Stat. 3706, relates to
United States sovereign rights and fishery management
authority over fish within the exclusive economic zone
as defined in section 1802 of Title 16. For complete classification of this Act to the Code, see Short Title note
set out under section 1801 of Title 16 and Tables.
The Clean Air Act, referred to in par. (10), is act July
14, 1955, ch. 360, as amended generally by Pub. L. 88–206,
Dec. 17, 1963, 77 Stat. 392, and later by Pub. L. 95–95,
Aug. 7, 1977, 91 Stat. 685. The Clean Air Act was originally classified to chapter 15B (§ 1857 et seq.) of this
title. On enactment of Pub. L. 95–95, the Act was reclassified to chapter 85 (§ 7401 et seq.) of this title. Parts C
and D of title I of the Clean Air Act are classified generally to parts C (§ 7470 et seq.) and D (§ 7501 et seq.), respectively, of subchapter I of chapter 85 of this title.
For complete classification of this Act to the Code, see
Short Title note set out under section 7401 of this title
and Tables.
The Atomic Energy Act of 1954, referred to in pars.
(10) and (22), is act Aug. 1, 1946, ch. 724, as added by act
Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, which is classified
principally to chapter 23 (§ 2011 et seq.) of this title. For
complete classification of this Act to the Code, see
Short Title note set out under section 2011 of this title
and Tables.
The Solid Waste Disposal Act, referred to in pars.
(14), (39)(B)(iv), (vi)(I), (ix), and (41)(B)(i), is title II of
Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat.
2795, which is classified generally to chapter 82 (§ 6901 et
seq.) of this title. Subtitles C and I of the Act are classified generally to subchapters III (§ 6921 et seq.) and IX
(§ 6991 et seq.), respectively, of chapter 82 of this title.
For complete classification of this Act to the Code, see
Short Title note set out under section 6901 of this title
and Tables.
The Farm Credit Act of 1971, referred to in par.
(20)(G)(iv)(III), is Pub. L. 92–181, Dec. 10, 1971, 85 Stat.
583, as amended, which is classified generally to chapter 23 (§ 2001 et seq.) of Title 12, Banks and Banking. For
complete classification of this Act to the Code, see
Short Title note set out under section 2001 of Title 12
and Tables.
The Disaster Relief and Emergency Assistance Act,
referred to in par. (23), is Pub. L. 93–288, May 22, 1974,
88 Stat. 143, as amended, known as the Robert T. Staf-

Page 6817

TITLE 42—THE PUBLIC HEALTH AND WELFARE

ford Disaster Relief and Emergency Assistance Act,
which is classified principally to chapter 68 (§ 5121 et
seq.) of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 5121 of this title and Tables.
The Federal Water Pollution Control Act, referred to
in par. (39)(B)(iv), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat.
816, also known as the Clean Water Act, which is classified generally to chapter 26 (§ 1251 et seq.) of Title 33,
Navigation and Navigable Waters. Section 311(c) of the
Act was amended generally by Pub. L. 101–380, title IV,
§ 4201(a), Aug. 18, 1990, 104 Stat. 523, and no longer contains provisions directing the publishing of a National
Contingency Plan. However, such provisions are contained in section 1321(d) of Title 33. For complete classification of this Act to the Code, see Short Title note
set out under section 1251 of Title 33 and Tables.
The Toxic Substances Control Act, referred to in par.
(39)(B)(iv), (viii)(II), is Pub. L. 94–469, Oct. 11, 1976, 90
Stat. 2003, as amended, which is classified generally to
chapter 53 (§ 2601 et seq.) of Title 15, Commerce and
Trade. For complete classification of this Act to the
Code, see Short Title note set out under section 2601 of
Title 15 and Tables.
AMENDMENTS
2002—Par. (35)(A). Pub. L. 107–118, § 223(1), in introductory provisions substituted ‘‘deeds, easements, leases,
or’’ for ‘‘deeds or’’ and in concluding provisions substituted ‘‘the defendant has satisfied’’ for ‘‘he has satisfied’’ and inserted before period at end ‘‘, provides
full cooperation, assistance, and facility access to the
persons that are authorized to conduct response actions
at the facility (including the cooperation and access
necessary for the installation, integrity, operation, and
maintenance of any complete or partial response action
at the facility), is in compliance with any land use restrictions established or relied on in connection with
the response action at a facility, and does not impede
the effectiveness or integrity of any institutional control employed at the facility in connection with a response action’’.
Par. (35)(B). Pub. L. 107–118, § 223(2), added subpar. (B)
and struck out former subpar. (B) which read as follows: ‘‘To establish that the defendant had no reason to
know, as provided in clause (i) of subparagraph (A) of
this paragraph, the defendant must have undertaken,
at the time of acquisition, all appropriate inquiry into
the previous ownership and uses of the property consistent with good commercial or customary practice in
an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any
specialized knowledge or experience on the part of the
defendant, the relationship of the purchase price to the
value of the property if uncontaminated, commonly
known or reasonably ascertainable information about
the property, the obviousness of the presence or likely
presence of contamination at the property, and the
ability to detect such contamination by appropriate inspection.’’
Par. (39). Pub. L. 107–118, § 211(a), added par. (39).
Par. (40). Pub. L. 107–118, § 222(a), added par. (40).
Par. (41). Pub. L. 107–118, § 231(a), added par. (41).
1999—Par. (20)(D). Pub. L. 106–74, which directed the
amendment of subpar. (D) by inserting ‘‘through seizure or otherwise in connection with law enforcement
activity’’ before ‘‘involuntary’’ the first place it appears, could not be executed because the word ‘‘involuntary’’ does not appear in subpar. (D).
1996—Pars. (8), (16). Pub. L. 104–208, § 101(a) [title II,
§ 211(b)], substituted ‘‘Magnuson-Stevens Fishery’’ for
‘‘Magnuson Fishery’’.
Par. (20)(E) to (G). Pub. L. 104–208, § 2502(b), added subpars. (E) to (G).
Par. (26). Pub. L. 104–287 substituted ‘‘section 60101(a)
of title 49’’ for ‘‘the Pipeline Safety Act’’.
1994—Par. (26). Pub. L. 103–429 substituted ‘‘a hazardous liquid pipeline facility’’ for ‘‘pipeline’’.
1988—Par. (23). Pub. L. 100–707 substituted ‘‘Disaster
Relief and Emergency Assistance Act’’ for ‘‘Disaster
Relief Act of 1974’’.

§ 9601

1986—Pub. L. 99–499, § 101(f), struck out ‘‘, the term’’
after ‘‘subchapter’’ in introductory text.
Pars. (1) to (10). Pub. L. 99–499, § 101(f), inserted ‘‘The
term’’ and substituted a period for the semicolon at
end.
Par. (11). Pub. L. 99–499, § 517(c)(2), amended par. (11)
generally. Prior to amendment, par. (11) read as follows: ‘‘The term ‘Fund’ or ‘Trust Fund’ means the Hazardous Substance Response Fund established by section
9631 of this title or, in the case of a hazardous waste
disposal facility for which liability has been transferred under section 9607(k) of this title, the Post-closure Liability Fund established by section 9641 of this
title.’’
Pub. L. 99–499, § 101(f), inserted ‘‘The term’’ and substituted a period for the semicolon at end.
Pars. (12) to (15). Pub. L. 99–499, § 101(f), inserted ‘‘The
term’’ and substituted a period for the semicolon at
end.
Par. (16). Pub. L. 99–499, § 101(a), (f), inserted ‘‘The
term’’, struck out ‘‘or’’ after ‘‘local government,’’ inserted ‘‘, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of
an Indian tribe’’, and substituted a period for the semicolon at end.
Pars. (17) to (19). Pub. L. 99–499, § 101(f), inserted ‘‘The
term’’ and substituted a period for the semicolon at
end.
Par. (20)(A). Pub. L. 99–499, § 101(f), inserted ‘‘The
term’’.
Pub. L. 99–499, § 101(b)(2), amended cl. (iii) generally.
Prior to amendment, cl. (iii) read as follows: ‘‘in the
case of any abandoned facility, any person who owned,
operated, or otherwise controlled activities at such facility immediately prior to such abandonment.’’
Pub. L. 99–499, § 101(b)(3), in provisions following
subcl. (iii), substituted a period for the semicolon at
end.
Par. (20)(B), (C). Pub. L. 99–499, § 101(b)(3), substituted
‘‘In the case’’ for ‘‘in the case’’ and a period for the
semicolon at end.
Par. (20)(D). Pub. L. 99–499, § 101(b)(1), (f), added subpar. (D). The part of § 101(f) of Pub. L. 99–499 which directed the amendment of par. (20) by changing the
semicolon at end to a period could not be executed in
view of the prior amendment of par. (20) by § 101(b)(1) of
Pub. L. 99–499 which added subpar. (D) ending in a period.
Par. (21). Pub. L. 99–499, § 101(f), inserted ‘‘The term’’
and substituted a period for the semicolon at end.
Par. (22). Pub. L. 99–499, § 101(c), (f), inserted ‘‘The
term’’ and ‘‘(including the abandonment or discarding
of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)’’, substituted a period for the semicolon at
end.
Par. (23). Pub. L. 99–499, § 101(f), inserted ‘‘The terms’’
and substituted a period for the semicolon at end.
Par. (24). Pub. L. 99–499, § 101(d), (f), inserted ‘‘The
terms’’ and substituted ‘‘and associated contaminated
materials’’ for ‘‘or contaminated materials’’ and ‘‘welfare; the term includes offsite transport and offsite
storage, treatment, destruction, or secure disposition
of hazardous substances and associated contaminated
materials.’’ for ‘‘welfare. The term does not include offsite transport of hazardous substances, or the storage,
treatment, destruction, or secure disposition offsite of
such hazardous substances or contaminated materials
unless the President determines that such actions (A)
are more cost-effective than other remedial actions, (B)
will create new capacity to manage, in compliance with
subtitle C of the Solid Waste Disposal Act [42 U.S.C.
6921 et seq.], hazardous substances in addition to those
located at the affected facility, or (C) are necessary to
protect public health or welfare or the environment
from a present or potential risk which may be created
by further exposure to the continued presence of such
substances or materials;’’. The part of § 101(f) of Pub. L.
99–499 which directed amendment of par. (24) by changing the semicolon at end to a period could not be exe-

§ 9601

TITLE 42—THE PUBLIC HEALTH AND WELFARE

cuted in view of prior amendment of par. (24) by § 101(d)
of Pub. L. 99–499 which substituted language at end of
par. (24) ending in a period for former language ending
in a semicolon.
Par. (25). Pub. L. 99–499, § 101(e), (f), inserted ‘‘The
terms’’ and ‘‘, all such terms (including the terms ‘removal’ and ‘remedial action’) include enforcement activities related thereto.’’ The part of § 101(f) of Pub. L.
99–499 which directed amendment of par. (25) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (25) by § 101(e)
of Pub. L. 99–499 inserting language and a period at end
of par. (25).
Pars. (26), (27). Pub. L. 99–499, § 101(f), inserted ‘‘The
terms’’ and substituted a period for the semicolon at
end.
Par. (28). Pub. L. 99–499, § 101(f), inserted ‘‘The term’’
and substituted a period for the semicolon at end.
Par. (29). Pub. L. 99–499, § 101(f), inserted ‘‘The terms’’
and substituted a period for the semicolon at end.
Par. (30). Pub. L. 99–499, § 101(f), inserted ‘‘The terms’’.
Par. (31). Pub. L. 99–499, § 101(f), inserted ‘‘The term’’
and substituted a period for ‘‘; and’’.
Par. (32). Pub. L. 99–499, § 101(f), inserted ‘‘The terms’’.
Pars. (33) to (36). Pub. L. 99–499, § 101(f), added pars.
(33) to (36).
Par. (37). Pub. L. 99–499, § 114(b), added par. (37).
Par. (38). Pub. L. 99–499, § 127(a), added par. (38).
1980—Pars. (8), (16). Pub. L. 96–561 substituted ‘‘Magnuson Fishery Conservation and Management Act’’ for
‘‘Fishery Conservation and Management Act of 1976’’.
EFFECTIVE DATE OF 1996 AMENDMENT
Pub. L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided
that the amendment made by that section is effective
15 days after Oct. 11, 1996.
Amendment by section 2502(b) of Pub. L. 104–208 applicable with respect to any claim that has not been finally adjudicated as of Sept. 30, 1996, see section 2505 of
Pub. L. 104–208, set out as a note under section 6991b of
this title.
EFFECTIVE DATE OF 1986 AMENDMENT
Pub. L. 99–499, § 4, Oct. 17, 1986, 100 Stat. 1614, provided
that: ‘‘Except as otherwise specified in section 121(b) of
this Act [set out as an Effective Date note under section 9621 of this title] or in any other provision of titles
I, II, III, and IV of this Act [see Tables for classification], the amendments made by titles I through IV of
this Act [enacting subchapter IV of this chapter and
sections 9616 to 9626, 9658 to 9660, and 9661 of this title
and sections 2701 to 2707 and 2810 of Title 10, Armed
Forces, amending sections 6926, 6928, 6991 to 6991d,
6991g, 9601 to 9609, 9611 to 9614, 9631, 9651, 9656, and 9657
of this title and section 1416 of Title 33, Navigation and
Navigable Waters, and renumbering former section 2701
of Title 10 as section 2721 of Title 10] shall take effect
on the enactment of this Act [Oct. 17, 1986].’’
Amendment by section 517(c)(2) of Pub. L. 99–499 effective Jan. 1, 1987, see section 517(e) of Pub. L. 99–499,
set out as an Effective Date note under section 9507 of
Title 26, Internal Revenue Code.
EFFECTIVE DATE OF 1980 AMENDMENT
Pub. L. 96–561, title II, § 238(b), Dec. 22, 1980, 94 Stat.
3300, provided that the amendment made by that section is effective 15 days after Dec. 22, 1980.
SHORT TITLE OF 2002 AMENDMENTS
Pub. L. 107–118, § 1, Jan. 11, 2002, 115 Stat. 2356, provided that: ‘‘This Act [enacting section 9628 of this
title, amending this section and sections 9604, 9605, 9607,
and 9622 of this title, and enacting provisions set out as
notes under this section and section 9607 of this title]
may be cited as the ‘Small Business Liability Relief
and Brownfields Revitalization Act’.’’
Pub. L. 107–118, title I, § 101, Jan. 11, 2002, 115 Stat.
2356, provided that: ‘‘This title [amending sections 9607

Page 6818

and 9622 of this title and enacting provisions set out as
a note under section 9607 of this title] may be cited as
the ‘Small Business Liability Protection Act’.’’
Pub. L. 107–118, title II, § 201, Jan. 11, 2002, 115 Stat.
2360, provided that: ‘‘This title [enacting section 9628 of
this title and amending this section and sections 9604,
9605, and 9607 of this title] may be cited as the
‘Brownfields Revitalization and Environmental Restoration Act of 2001’.’’
SHORT TITLE OF 1996 AMENDMENT
Pub. L. 104–208, div. A, title II, § 2501, Sept. 30, 1996, 110
Stat. 3009–462, provided that: ‘‘This subtitle [subtitle E
(§§ 2501–2505) of title II of div. A of Pub. L. 104–208,
amending this section and sections 6991b and 9607 of
this title and enacting provisions set out as a note
under section 6991b of this title] may be cited as the
‘Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996’.’’
SHORT TITLE OF 1992 AMENDMENT
Pub. L. 102–426, § 1, Oct. 19, 1992, 106 Stat. 2174, provided that: ‘‘This Act [amending section 9620 of this
title and enacting provisions set out as a note under
section 9620 of this title] may be cited as the ‘Community Environmental Response Facilitation Act’.’’
SHORT TITLE OF 1986 AMENDMENT
Pub. L. 99–499, § 1, Oct. 17, 1986, 100 Stat. 1613, provided
that: ‘‘This Act [enacting subchapter IV of this chapter
and sections 9616 to 9626, 9658 to 9662, 11001 to 11005,
11021 to 11023, and 11041 to 11050 of this title, sections
2701 to 2707 and 2810 of Title 10, Armed Forces, and sections 59A, 4671, 4672, 9507, and 9508 of Title 26, Internal
Revenue Code, amending this section, sections 6926,
6928, 6991 to 6991d, 6991g, 9602 to 9609, 9611 to 9614, 9631,
9651, 9656, and 9657 of this title, sections 26, 164, 275, 936,
1561, 4041, 4042, 4081, 4221, 4611, 4612, 4661, 4662, 6154, 6416,
6420, 6421, 6425, 6427, 6655, 9502, 9503, and 9506 of Title 26,
and section 1416 of Title 33, Navigation and Navigable
Waters, renumbering former section 2701 of Title 10 as
section 2721 of Title 10, repealing sections 9631 to 9633,
9641, and 9653 of this title and sections 4681 and 4682 of
Title 26, and enacting provisions set out as notes under
this section, sections 6921, 6991b, 7401, 9620, 9621, 9658,
9660, 9661, and 11001 of this title, section 2703 of Title 10,
sections 1, 26, 4041, 4611, 4661, 4671, 4681, 9507, and 9508 of
Title 26, and section 655 of Title 29, Labor] may be cited
as the ‘Superfund Amendments and Reauthorization
Act of 1986’.’’
SHORT TITLE
Pub. L. 96–510, § 1, Dec. 11, 1980, 94 Stat. 2767, provided:
‘‘That this Act [enacting this chapter, section 6911a of
this title, and sections 4611, 4612, 4661, 4662, 4681, and
4682 of Title 26, Internal Revenue Code, amending section 6911 of this title, section 1364 of Title 33, Navigation and Navigable Waters, and section 11901 of Title 49,
Transportation, and enacting provisions set out as
notes under section 6911 of this title and sections 1 and
4611 of Title 26] may be cited as the ‘Comprehensive Environmental Response, Compensation, and Liability
Act of 1980’.’’
TRANSFER OF FUNCTIONS
For transfer of certain functions from Nuclear Regulatory Commission to Chairman thereof, see Reorg.
Plan No. 1 of 1980, 45 F.R. 40561, 94 Stat. 3585, set out as
a note under section 5841 of this title.
TERRITORIAL SEA AND CONTIGUOUS ZONE OF UNITED
STATES
For extension of territorial sea and contiguous zone
of United States, see Proc. No. 5928 and Proc. No. 7219,
respectively, set out as notes under section 1331 of Title
43, Public Lands.
DEFINITIONS
Pub. L. 99–499, § 2, Oct. 17, 1986, 100 Stat. 1614, provided
that: ‘‘As used in this Act [see Short Title of 1986
Amendment note above]—

Page 6819

TITLE 42—THE PUBLIC HEALTH AND WELFARE

‘‘(1) CERCLA.—The term ‘CERCLA’ means the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.).
‘‘(2) ADMINISTRATOR.—The term ‘Administrator’
means the Administrator of the Environmental Protection Agency.’’

§ 9602. Designation of additional hazardous substances and establishment of reportable released quantities; regulations
(a) The Administrator shall promulgate and
revise as may be appropriate, regulations designating as hazardous substances, in addition to
those referred to in section 9601(14) of this title,
such elements, compounds, mixtures, solutions,
and substances which, when released into the
environment may present substantial danger to
the public health or welfare or the environment,
and shall promulgate regulations establishing
that quantity of any hazardous substance the release of which shall be reported pursuant to section 9603 of this title. The Administrator may
determine that one single quantity shall be the
reportable quantity for any hazardous substance, regardless of the medium into which the
hazardous substance is released. For all hazardous substances for which proposed regulations
establishing reportable quantities were published in the Federal Register under this subsection on or before March 1, 1986, the Administrator shall promulgate under this subsection
final regulations establishing reportable quantities not later than December 31, 1986. For all
hazardous substances for which proposed regulations establishing reportable quantities were
not published in the Federal Register under this
subsection on or before March 1, 1986, the Administrator shall publish under this subsection
proposed regulations establishing reportable
quantities not later than December 31, 1986, and
promulgate final regulations under this subsection establishing reportable quantities not
later than April 30, 1988.’’
(b) Unless and until superseded by regulations
establishing a reportable quantity under subsection (a) of this section for any hazardous substance as defined in section 9601(14) of this title,
(1) a quantity of one pound, or (2) for those hazardous substances for which reportable quantities have been established pursuant to section
1321(b)(4) of title 33, such reportable quantity,
shall be deemed that quantity, the release of
which requires notification pursuant to section
9603(a) or (b) of this title.
(Pub. L. 96–510, title I, § 102, Dec. 11, 1980, 94 Stat.
2772; Pub. L. 99–499, title I, § 102, Oct. 17, 1986, 100
Stat. 1617.)
AMENDMENTS
1986—Subsec. (a). Pub. L. 99–499 inserted provisions
setting deadlines for promulgation of proposed and
final regulations.

§ 9603. Notification requirements respecting released substances
(a) Notice to National Response Center upon release from vessel or offshore or onshore facility by person in charge; conveyance of notice
by Center
Any person in charge of a vessel or an offshore
or an onshore facility shall, as soon as he has

§ 9603

knowledge of any release (other than a federally
permitted release) of a hazardous substance
from such vessel or facility in quantities equal
to or greater than those determined pursuant to
section 9602 of this title, immediately notify the
National Response Center established under the
Clean Water Act [33 U.S.C. 1251 et seq.] of such
release. The National Response Center shall convey the notification expeditiously to all appropriate Government agencies, including the Governor of any affected State.
(b) Penalties for failure to notify; use of notice or
information pursuant to notice in criminal
case
Any person—
(1) in charge of a vessel from which a hazardous substance is released, other than a federally permitted release, into or upon the navigable waters of the United States, adjoining
shorelines, or into or upon the waters of the
contiguous zone, or
(2) in charge of a vessel from which a hazardous substance is released, other than a federally permitted release, which may affect natural resources belonging to, appertaining to, or
under the exclusive management authority of
the United States (including resources under
the Magnuson-Stevens Fishery Conservation
and Management Act [16 U.S.C. 1801 et seq.]),
and who is otherwise subject to the jurisdiction of the United States at the time of the release, or
(3) in charge of a facility from which a hazardous substance is released, other than a federally permitted release,
in a quantity equal to or greater than that determined pursuant to section 9602 of this title
who fails to notify immediately the appropriate
agency of the United States Government as soon
as he has knowledge of such release or who submits in such a notification any information
which he knows to be false or misleading shall,
upon conviction, be fined in accordance with the
applicable provisions of title 18 or imprisoned
for not more than 3 years (or not more than 5
years in the case of a second or subsequent conviction), or both. Notification received pursuant
to this subsection or information obtained by
the exploitation of such notification shall not be
used against any such person in any criminal
case, except a prosecution for perjury or for giving a false statement.
(c) Notice to Administrator of EPA of existence
of storage, etc., facility by owner or operator;
exception; time, manner, and form of notice;
penalties for failure to notify; use of notice
or information pursuant to notice in criminal
case
Within one hundred and eighty days after December 11, 1980, any person who owns or operates
or who at the time of disposal owned or operated, or who accepted hazardous substances for
transport and selected, a facility at which hazardous substances (as defined in section
9601(14)(C) of this title) are or have been stored,
treated, or disposed of shall, unless such facility
has a permit issued under, or has been accorded
interim status under, subtitle C of the Solid
Waste Disposal Act [42 U.S.C. 6921 et seq.], no-

§ 9603

TITLE 42—THE PUBLIC HEALTH AND WELFARE

tify the Administrator of the Environmental
Protection Agency of the existence of such facility, specifying the amount and type of any hazardous substance to be found there, and any
known, suspected, or likely releases of such substances from such facility. The Administrator
may prescribe in greater detail the manner and
form of the notice and the information included.
The Administrator shall notify the affected
State agency, or any department designated by
the Governor to receive such notice, of the existence of such facility. Any person who knowingly fails to notify the Administrator of the existence of any such facility shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. In addition, any such person who knowingly fails to
provide the notice required by this subsection
shall not be entitled to any limitation of liability or to any defenses to liability set out in section 9607 of this title: Provided, however, That
notification under this subsection is not required for any facility which would be reportable hereunder solely as a result of any stoppage
in transit which is temporary, incidental to the
transportation movement, or at the ordinary operating convenience of a common or contract
carrier, and such stoppage shall be considered as
a continuity of movement and not as the storage
of a hazardous substance. Notification received
pursuant to this subsection or information obtained by the exploitation of such notification
shall not be used against any such person in any
criminal case, except a prosecution for perjury
or for giving a false statement.
(d) Recordkeeping requirements; promulgation
of rules and regulations by Administrator of
EPA; penalties for violations; waiver of retention requirements
(1) The Administrator of the Environmental
Protection Agency is authorized to promulgate
rules and regulations specifying, with respect
to—
(A) the location, title, or condition of a facility, and
(B) the identity, characteristics, quantity,
origin, or condition (including containerization and previous treatment) of any hazardous
substances contained or deposited in a facility;
the records which shall be retained by any person required to provide the notification of a facility set out in subsection (c) of this section.
Such specification shall be in accordance with
the provisions of this subsection.
(2) Beginning with December 11, 1980, for fifty
years thereafter or for fifty years after the date
of establishment of a record (whichever is later),
or at any such earlier time as a waiver if obtained under paragraph (3) of this subsection, it
shall be unlawful for any such person knowingly
to destroy, mutilate, erase, dispose of, conceal,
or otherwise render unavailable or unreadable or
falsify any records identified in paragraph (1) of
this subsection. Any person who violates this
paragraph shall, upon conviction, be fined in accordance with the applicable provisions of title
18 or imprisoned for not more than 3 years (or
not more than 5 years in the case of a second or
subsequent conviction), or both.

Page 6820

(3) At any time prior to the date which occurs
fifty years after December 11, 1980, any person
identified under paragraph (1) of this subsection
may apply to the Administrator of the Environmental Protection Agency for a waiver of the
provisions of the first sentence of paragraph (2)
of this subsection. The Administrator is authorized to grant such waiver if, in his discretion,
such waiver would not unreasonably interfere
with the attainment of the purposes and provisions of this chapter. The Administrator shall
promulgate rules and regulations regarding such
a waiver so as to inform parties of the proper application procedure and conditions for approval
of such a waiver.
(4) Notwithstanding the provisions of this subsection, the Administrator of the Environmental Protection Agency may in his discretion
require any such person to retain any record
identified pursuant to paragraph (1) of this subsection for such a time period in excess of the
period specified in paragraph (2) of this subsection as the Administrator determines to be
necessary to protect the public health or welfare.
(e) Applicability to registered pesticide product
This section shall not apply to the application
of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act
[7 U.S.C. 136 et seq.] or to the handling and storage of such a pesticide product by an agricultural producer.
(f) Exemptions from notice and penalty provisions for substances reported under other
Federal law or is in continuous release, etc.
No notification shall be required under subsection (a) or (b) of this section for any release
of a hazardous substance—
(1) which is required to be reported (or specifically exempted from a requirement for reporting) under subtitle C of the Solid Waste
Disposal Act [42 U.S.C. 6921 et seq.] or regulations thereunder and which has been reported
to the National Response Center, or
(2) which is a continuous release, stable in
quantity and rate, and is—
(A) from a facility for which notification
has been given under subsection (c) of this
section, or
(B) a release of which notification has been
given under subsections (a) and (b) of this
section for a period sufficient to establish
the continuity, quantity, and regularity of
such release:
Provided, That notification in accordance with
subsections (a) and (b) of this paragraph shall
be given for releases subject to this paragraph
annually, or at such time as there is any statistically significant increase in the quantity
of any hazardous substance or constituent
thereof released, above that previously reported or occurring.
(Pub. L. 96–510, title I, § 103, Dec. 11, 1980, 94 Stat.
2772; Pub. L. 96–561, title II, § 238(b), Dec. 22, 1980,
94 Stat. 3300; Pub. L. 99–499, title I, §§ 103,
109(a)(1), (2), Oct. 17, 1986, 100 Stat. 1617, 1632,
1633; Pub. L. 104–208, div. A, title I, § 101(a) [title
II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41.)

Page 6821

TITLE 42—THE PUBLIC HEALTH AND WELFARE

§ 9604

REFERENCES IN TEXT

CONTIGUOUS ZONE OF UNITED STATES

The Clean Water Act, referred to in subsec. (a), is act
June 30, 1948, ch. 758, as amended generally by Pub. L.
92–500, § 2, Oct. 18, 1972, 86 Stat. 816, also known as the
Federal Water Pollution Control Act, which is classified generally to chapter 26 (§ 1251 et seq.) of Title 33,
Navigation and Navigable Waters. For complete classification of this Act to the Code, see Short Title note
set out under section 1251 of Title 33 and Tables.
The Magnuson-Stevens Fishery Conservation and
Management Act, referred to in subsec. (b)(2), is Pub. L.
94–265, Apr. 13, 1976, 90 Stat. 331, which is classified
principally to chapter 38 (§ 1801 et seq.) of Title 16, Conservation. For complete classification of this Act to
the Code, see Short Title note set out under section
1801 of Title 16 and Tables.
The Solid Waste Disposal Act, referred to in subsecs.
(c) and (f)(1), is title II of Pub. L. 89–272, Oct. 20, 1965,
79 Stat. 997, as amended generally by Pub. L. 94–580, § 2,
Oct. 21, 1976, 90 Stat. 2795. Subtitle C of the Solid Waste
Disposal Act is classified generally to subchapter III
(§ 6921 et seq.) of chapter 82 of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 6901 of this title and Tables.
This chapter, referred to in subsec. (d)(3), was in the
original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, which is classified principally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 9601 of this title
and Tables.
The Federal Insecticide, Fungicide, and Rodenticide
Act, referred to in subsec. (e), is act June 25, 1947, ch.
125, as amended generally by Pub. L. 92–516, Oct. 21,
1972, 86 Stat. 973, which is classified generally to subchapter II (§ 136 et seq.) of chapter 6 of Title 7, Agriculture. For complete classification of this Act to the
Code, see Short Title note set out under section 136 of
Title 7 and Tables.

For extension of contiguous zone of United States,
see Proc. No. 7219, set out as a note under section 1331
of Title 43, Public Lands.

AMENDMENTS
1996—Subsec. (b)(2). Pub. L. 104–208 substituted ‘‘Magnuson-Stevens Fishery’’ for ‘‘Magnuson Fishery’’.
1986—Subsec. (b). Pub. L. 99–499, §§ 103, 109(a), adjusted
left hand margin of text following ‘‘federally permitted
release,’’ third place appearing so that there is no indentation of that text, inserted ‘‘or who submits in
such a notification any information which he knows to
be false or misleading’’, and substituted ‘‘in accordance
with the applicable provisions of title 18 or imprisoned
for not more than 3 years (or not more than 5 years in
the case of a second or subsequent conviction), or both’’
for ‘‘not more than $10,000 or imprisoned for not more
than one year, or both’’ and ‘‘subsection’’ for ‘‘paragraph’’.
Subsec. (d)(2). Pub. L. 99–499, § 109(a)(2), substituted
‘‘in accordance with the applicable provisions of title 18
or imprisoned for not more than 3 years (or not more
than 5 years in the case of a second or subsequent conviction), or both’’ for ‘‘not more than $20,000, or imprisoned for not more than one year, or both’’ as the probable intent of Congress, notwithstanding directory language that the substitution be made for ‘‘not more
than $20,000, or imprisoned for not more than one year
or both’’.
1980—Subsec. (b)(2). Pub. L. 96–561 substituted ‘‘Magnuson Fishery Conservation and Management Act’’ for
‘‘Fishery Conservation and Management Act of 1976’’.
EFFECTIVE DATE OF 1996 AMENDMENT
Pub. L. 104–208, div. A, title I, § 101(a) [title II,
§ 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided
that the amendment made by that section is effective
15 days after Oct. 11, 1996.
EFFECTIVE DATE OF 1980 AMENDMENT
Pub. L. 96–561, title II, § 238(b), Dec. 22, 1980, 94 Stat.
3300, provided that the amendment made by that section is effective 15 days after Dec. 22, 1980.

§ 9604. Response authorities
(a) Removal and other remedial action by President; applicability of national contingency
plan; response by potentially responsible
parties; public health threats; limitations on
response; exception
(1) Whenever (A) any hazardous substance is
released or there is a substantial threat of such
a release into the environment, or (B) there is a
release or substantial threat of release into the
environment of any pollutant or contaminant
which may present an imminent and substantial
danger to the public health or welfare, the
President is authorized to act, consistent with
the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time
(including its removal from any contaminated
natural resource), or take any other response
measure consistent with the national contingency plan which the President deems necessary
to protect the public health or welfare or the environment. When the President determines that
such action will be done properly and promptly
by the owner or operator of the facility or vessel
or by any other responsible party, the President
may allow such person to carry out the action,
conduct the remedial investigation, or conduct
the feasibility study in accordance with section
9622 of this title. No remedial investigation or
feasibility study (RI/FS) shall be authorized except on a determination by the President that
the party is qualified to conduct the RI/FS and
only if the President contracts with or arranges
for a qualified person to assist the President in
overseeing and reviewing the conduct of such RI/
FS and if the responsible party agrees to reimburse the Fund for any cost incurred by the
President under, or in connection with, the
oversight contract or arrangement. In no event
shall a potentially responsible party be subject
to a lesser standard of liability, receive preferential treatment, or in any other way, whether direct or indirect, benefit from any such arrangements as a response action contractor, or
as a person hired or retained by such a response
action contractor, with respect to the release or
facility in question. The President shall give
primary attention to those releases which the
President deems may present a public health
threat.
(2) REMOVAL ACTION.—Any removal action
undertaken by the President under this subsection (or by any other person referred to in
section 9622 of this title) should, to the extent
the President deems practicable, contribute to
the efficient performance of any long term remedial action with respect to the release or
threatened release concerned.
(3) LIMITATIONS ON RESPONSE.—The President
shall not provide for a removal or remedial action under this section in response to a release
or threat of release—
(A) of a naturally occurring substance in its
unaltered form, or altered solely through nat-

§ 9604

TITLE 42—THE PUBLIC HEALTH AND WELFARE

urally occurring processes or phenomena, from
a location where it is naturally found;
(B) from products which are part of the
structure of, and result in exposure within,
residential buildings or business or community structures; or
(C) into public or private drinking water
supplies due to deterioration of the system
through ordinary use.
(4) EXCEPTION TO LIMITATIONS.—Notwithstanding paragraph (3) of this subsection, to the extent authorized by this section, the President
may respond to any release or threat of release
if in the President’s discretion, it constitutes a
public health or environmental emergency and
no other person with the authority and capability to respond to the emergency will do so in a
timely manner.
(b) Investigations, monitoring, coordination, etc.,
by President
(1) Information; studies and investigations
Whenever the President is authorized to act
pursuant to subsection (a) of this section, or
whenever the President has reason to believe
that a release has occurred or is about to
occur, or that illness, disease, or complaints
thereof may be attributable to exposure to a
hazardous substance, pollutant, or contaminant and that a release may have occurred or
be occurring, he may undertake such investigations, monitoring, surveys, testing, and
other information gathering as he may deem
necessary or appropriate to identify the existence and extent of the release or threat thereof, the source and nature of the hazardous substances, pollutants or contaminants involved,
and the extent of danger to the public health
or welfare or to the environment. In addition,
the President may undertake such planning,
legal, fiscal, economic, engineering, architectural, and other studies or investigations as he
may deem necessary or appropriate to plan
and direct response actions, to recover the
costs thereof, and to enforce the provisions of
this chapter.
(2) Coordination of investigations
The President shall promptly notify the appropriate Federal and State natural resource
trustees of potential damages to natural resources resulting from releases under investigation pursuant to this section and shall
seek to coordinate the assessments, investigations, and planning under this section with
such Federal and State trustees.

Page 6822

(c) Criteria for continuance of obligations from
Fund over specified amount for response actions; consultation by President with affected States; contracts or cooperative agreements by States with President prior to remedial actions; cost-sharing agreements; selection by President of remedial actions;
State credits: granting of credit, expenses before listing or agreement, response actions
between 1978 and 1980, State expenses after
December 11, 1980, in excess of 10 percent of
costs, item-by-item approval, use of credits;
operation and maintenance; limitation on
source of funds for O&M; recontracting;
siting
(1) Unless (A) the President finds that (i) continued response actions are immediately required to prevent, limit, or mitigate an emergency, (ii) there is an immediate risk to public
health or welfare or the environment, and (iii)
such assistance will not otherwise be provided
on a timely basis, or (B) the President has determined the appropriate remedial actions pursuant to paragraph (2) of this subsection and the
State or States in which the source of the release is located have complied with the requirements of paragraph (3) of this subsection, or (C)
continued response action is otherwise appropriate and consistent with the remedial action
to be taken 1 obligations from the Fund, other
than those authorized by subsection (b) of this
section, shall not continue after $2,000,000 has
been obligated for response actions or 12 months
has elapsed from the date of initial response to
a release or threatened release of hazardous substances.
(2) The President shall consult with the affected State or States before determining any
appropriate remedial action to be taken pursuant to the authority granted under subsection
(a) of this section.
(3) The President shall not provide any remedial actions pursuant to this section unless the
State in which the release occurs first enters
into a contract or cooperative agreement with
the President providing assurances deemed adequate by the President that (A) the State will
assure all future maintenance of the removal
and remedial actions provided for the expected
life of such actions as determined by the President; (B) the State will assure the availability of
a hazardous waste disposal facility acceptable to
the President and in compliance with the requirements of subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.] for any necessary offsite storage, destruction, treatment,
or secure disposition of the hazardous substances; and (C) the State will pay or assure
payment of (i) 10 per centum of the costs of the
remedial action, including all future maintenance, or (ii) 50 percent (or such greater amount
as the President may determine appropriate,
taking into account the degree of responsibility
of the State or political subdivision for the release) of any sums expended in response to a release at a facility, that was operated by the
State or a political subdivision thereof, either
directly or through a contractual relationship
or otherwise, at the time of any disposal of haz1 So

in original. Probably should be followed by a comma.

Page 6823

TITLE 42—THE PUBLIC HEALTH AND WELFARE

ardous substances therein. For the purpose of
clause (ii) of this subparagraph, the term ‘‘facility’’ does not include navigable waters or the
beds underlying those waters. In the case of remedial action to be taken on land or water held
by an Indian tribe, held by the United States in
trust for Indians, held by a member of an Indian
tribe (if such land or water is subject to a trust
restriction on alienation), or otherwise within
the borders of an Indian reservation, the requirements of this paragraph for assurances regarding future maintenance and cost-sharing
shall not apply, and the President shall provide
the assurance required by this paragraph regarding the availability of a hazardous waste disposal facility.
(4) SELECTION OF REMEDIAL ACTION.—The
President shall select remedial actions to carry
out this section in accordance with section 9621
of this title (relating to cleanup standards).
(5) STATE CREDITS.—
(A) GRANTING OF CREDIT.—The President
shall grant a State a credit against the share
of the costs, for which it is responsible under
paragraph (3) with respect to a facility listed
on the National Priorities List under the National Contingency Plan, for amounts expended by a State for remedial action at such
facility pursuant to a contract or cooperative
agreement with the President. The credit
under this paragraph shall be limited to those
State expenses which the President determines to be reasonable, documented, direct
out-of-pocket expenditures of non-Federal
funds.
(B) EXPENSES BEFORE LISTING OR AGREEMENT.—The credit under this paragraph shall
include expenses for remedial action at a facility incurred before the listing of the facility
on the National Priorities List or before a contract or cooperative agreement is entered into
under subsection (d) of this section for the facility if—
(i) after such expenses are incurred the facility is listed on such list and a contract or
cooperative agreement is entered into for
the facility, and
(ii) the President determines that such expenses would have been credited to the State
under subparagraph (A) had the expenditures
been made after listing of the facility on
such list and after the date on which such
contract or cooperative agreement is entered into.
(C) RESPONSE ACTIONS BETWEEN 1978 AND
1980.—The credit under this paragraph shall include funds expended or obligated by the State
or a political subdivision thereof after January 1, 1978, and before December 11, 1980, for
cost-eligible response actions and claims for
damages compensable under section 9611 of
this title.
(D) STATE EXPENSES AFTER DECEMBER 11, 1980,
IN EXCESS OF 10 PERCENT OF COSTS.—The credit
under this paragraph shall include 90 percent
of State expenses incurred at a facility owned,
but not operated, by such State or by a political subdivision thereof. Such credit applies
only to expenses incurred pursuant to a contract or cooperative agreement under subsection (d) of this section and only to expenses

§ 9604

incurred after December 11, 1980, but before
October 17, 1986.
(E) ITEM-BY-ITEM APPROVAL.—In the case of
expenditures made after October 17, 1986, the
President may require prior approval of each
item of expenditure as a condition of granting
a credit under this paragraph.
(F) USE OF CREDITS.—Credits granted under
this paragraph for funds expended with respect
to a facility may be used by the State to reduce all or part of the share of costs otherwise
required to be paid by the State under paragraph (3) in connection with remedial actions
at such facility. If the amount of funds for
which credit is allowed under this paragraph
exceeds such share of costs for such facility,
the State may use the amount of such excess
to reduce all or part of the share of such costs
at other facilities in that State. A credit shall
not entitle the State to any direct payment.
(6) OPERATION AND MAINTENANCE.—For the purposes of paragraph (3) of this subsection, in the
case of ground or surface water contamination,
completed remedial action includes the completion of treatment or other measures, whether
taken onsite or offsite, necessary to restore
ground and surface water quality to a level that
assures protection of human health and the environment. With respect to such measures, the
operation of such measures for a period of up to
10 years after the construction or installation
and commencement of operation shall be considered remedial action. Activities required to
maintain the effectiveness of such measures following such period or the completion of remedial action, whichever is earlier, shall be considered operation or maintenance.
(7) LIMITATION ON SOURCE OF FUNDS FOR
O&M.—During any period after the availability
of funds received by the Hazardous Substance
Superfund established under subchapter A of
chapter 98 of title 26 from tax revenues or appropriations from general revenues, the Federal
share of the payment of the cost of operation or
maintenance pursuant to paragraph (3)(C)(i) or
paragraph (6) of this subsection (relating to operation and maintenance) shall be from funds received by the Hazardous Substance Superfund
from amounts recovered on behalf of such fund
under this chapter.
(8) RECONTRACTING.—The President is authorized to undertake or continue whatever interim
remedial actions the President determines to be
appropriate to reduce risks to public health or
the environment where the performance of a
complete remedial action requires recontracting
because of the discovery of sources, types, or
quantities of hazardous substances not known at
the time of entry into the original contract. The
total cost of interim actions undertaken at a facility pursuant to this paragraph shall not exceed $2,000,000.
(9) SITING.—Effective 3 years after October 17,
1986, the President shall not provide any remedial actions pursuant to this section unless the
State in which the release occurs first enters
into a contract or cooperative agreement with
the President providing assurances deemed adequate by the President that the State will assure the availability of hazardous waste treatment or disposal facilities which—

§ 9604

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(A) have adequate capacity for the destruction, treatment, or secure disposition of all
hazardous wastes that are reasonably expected
to be generated within the State during the 20year period following the date of such contract
or cooperative agreement and to be disposed
of, treated, or destroyed,
(B) are within the State or outside the State
in accordance with an interstate agreement or
regional agreement or authority,
(C) are acceptable to the President, and
(D) are in compliance with the requirements
of subtitle C of the Solid Waste Disposal Act
[42 U.S.C. 6921 et seq.].
(d) Contracts or cooperative agreements by
President with States or political subdivisions or Indian tribes; State applications,
terms and conditions; reimbursements; costsharing provisions; enforcement requirements and procedures
(1) COOPERATIVE AGREEMENTS.—
(A) STATE APPLICATIONS.—A State or political subdivision thereof or Indian tribe may
apply to the President to carry out actions authorized in this section. If the President determines that the State or political subdivision
or Indian tribe has the capability to carry out
any or all of such actions in accordance with
the criteria and priorities established pursuant to section 9605(a)(8) of this title and to
carry out related enforcement actions, the
President may enter into a contract or cooperative agreement with the State or political
subdivision or Indian tribe to carry out such
actions. The President shall make a determination regarding such an application within
90 days after the President receives the application.
(B) TERMS AND CONDITIONS.—A contract or
cooperative agreement under this paragraph
shall be subject to such terms and conditions
as the President may prescribe. The contract
or cooperative agreement may cover a specific
facility or specific facilities.
(C) REIMBURSEMENTS.—Any State which expended funds during the period beginning September 30, 1985, and ending on October 17, 1986,
for response actions at any site included on
the National Priorities List and subject to a
cooperative agreement under this chapter
shall be reimbursed for the share of costs of
such actions for which the Federal Government is responsible under this chapter.
(2) If the President enters into a cost-sharing
agreement pursuant to subsection (c) of this section or a contract or cooperative agreement pursuant to this subsection, and the State or political subdivision thereof fails to comply with any
requirements of the contract, the President
may, after providing sixty days notice, seek in
the appropriate Federal district court to enforce
the contract or to recover any funds advanced or
any costs incurred because of the breach of the
contract by the State or political subdivision.
(3) Where a State or a political subdivision
thereof is acting in behalf of the President, the
President is authorized to provide technical and
legal assistance in the administration and enforcement of any contract or subcontract in
connection with response actions assisted under

Page 6824

this subchapter, and to intervene in any civil action involving the enforcement of such contract
or subcontract.
(4) Where two or more noncontiguous facilities
are reasonably related on the basis of geography, or on the basis of the threat, or potential
threat to the public health or welfare or the environment, the President may, in his discretion,
treat these related facilities as one for purposes
of this section.
(e) Information gathering and access
(1) Action authorized
Any officer, employee, or representative of
the President, duly designated by the President, is authorized to take action under paragraph (2), (3), or (4) (or any combination thereof) at a vessel, facility, establishment, place,
property, or location or, in the case of paragraph (3) or (4), at any vessel, facility, establishment, place, property, or location which is
adjacent to the vessel, facility, establishment,
place, property, or location referred to in such
paragraph (3) or (4). Any duly designated officer, employee, or representative of a State or
political subdivision under a contract or cooperative agreement under subsection (d)(1) of
this section is also authorized to take such action. The authority of paragraphs (3) and (4)
may be exercised only if there is a reasonable
basis to believe there may be a release or
threat of release of a hazardous substance or
pollutant or contaminant. The authority of
this subsection may be exercised only for the
purposes of determining the need for response,
or choosing or taking any response action
under this subchapter, or otherwise enforcing
the provisions of this subchapter.
(2) Access to information
Any officer, employee, or representative described in paragraph (1) may require any person who has or may have information relevant
to any of the following to furnish, upon reasonable notice, information or documents relating to such matter:
(A) The identification, nature, and quantity of materials which have been or are generated, treated, stored, or disposed of at a
vessel or facility or transported to a vessel
or facility.
(B) The nature or extent of a release or
threatened release of a hazardous substance
or pollutant or contaminant at or from a
vessel or facility.
(C) Information relating to the ability of a
person to pay for or to perform a cleanup.
In addition, upon reasonable notice, such person either (i) shall grant any such officer, employee, or representative access at all reasonable times to any vessel, facility, establishment, place, property, or location to inspect
and copy all documents or records relating to
such matters or (ii) shall copy and furnish to
the officer, employee, or representative all
such documents or records, at the option and
expense of such person.
(3) Entry
Any officer, employee, or representative described in paragraph (1) is authorized to enter
at reasonable times any of the following:

Page 6825

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(A) Any vessel, facility, establishment, or
other place or property where any hazardous
substance or pollutant or contaminant may
be or has been generated, stored, treated,
disposed of, or transported from.
(B) Any vessel, facility, establishment, or
other place or property from which or to
which a hazardous substance or pollutant or
contaminant has been or may have been released.
(C) Any vessel, facility, establishment, or
other place or property where such release is
or may be threatened.
(D) Any vessel, facility, establishment, or
other place or property where entry is needed to determine the need for response or the
appropriate response or to effectuate a response action under this subchapter.
(4) Inspection and samples
(A) Authority
Any officer, employee or representative
described in paragraph (1) is authorized to
inspect and obtain samples from any vessel,
facility, establishment, or other place or
property referred to in paragraph (3) or from
any location of any suspected hazardous substance or pollutant or contaminant. Any
such officer, employee, or representative is
authorized to inspect and obtain samples of
any containers or labeling for suspected hazardous substances or pollutants or contaminants. Each such inspection shall be completed with reasonable promptness.
(B) Samples
If the officer, employee, or representative
obtains any samples, before leaving the
premises he shall give to the owner, operator, tenant, or other person in charge of the
place from which the samples were obtained
a receipt describing the sample obtained
and, if requested, a portion of each such
sample. A copy of the results of any analysis
made of such samples shall be furnished
promptly to the owner, operator, tenant, or
other person in charge, if such person can be
located.
(5) Compliance orders
(A) Issuance
If consent is not granted regarding any request made by an officer, employee, or representative under paragraph (2), (3), or (4),
the President may issue an order directing
compliance with the request. The order may
be issued after such notice and opportunity
for consultation as is reasonably appropriate
under the circumstances.
(B) Compliance
The President may ask the Attorney General to commence a civil action to compel
compliance with a request or order referred
to in subparagraph (A). Where there is a reasonable basis to believe there may be a release or threat of a release of a hazardous
substance or pollutant or contaminant, the
court shall take the following actions:
(i) In the case of interference with entry
or inspection, the court shall enjoin such
interference or direct compliance with or-

§ 9604

ders to prohibit interference with entry or
inspection unless under the circumstances
of the case the demand for entry or inspection is arbitrary and capricious, an abuse
of discretion, or otherwise not in accordance with law.
(ii) In the case of information or document requests or orders, the court shall
enjoin interference with such information
or document requests or orders or direct
compliance with the requests or orders to
provide such information or documents
unless under the circumstances of the case
the demand for information or documents
is arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance
with law.
The court may assess a civil penalty not to
exceed $25,000 for each day of noncompliance
against any person who unreasonably fails
to comply with the provisions of paragraph
(2), (3), or (4) or an order issued pursuant to
subparagraph (A) of this paragraph.
(6) Other authority
Nothing in this subsection shall preclude the
President from securing access or obtaining
information in any other lawful manner.
(7) Confidentiality of information
(A) Any records, reports, or information obtained from any person under this section (including records, reports, or information obtained by representatives of the President)
shall be available to the public, except that
upon a showing satisfactory to the President
(or the State, as the case may be) by any person that records, reports, or information, or
particular part thereof (other than health or
safety effects data), to which the President (or
the State, as the case may be) or any officer,
employee, or representative has access under
this section if made public would divulge information entitled to protection under section
1905 of title 18, such information or particular
portion thereof shall be considered confidential in accordance with the purposes of that
section, except that such record, report, document or information may be disclosed to other
officers, employees, or authorized representatives of the United States concerned with carrying out this chapter, or when relevant in
any proceeding under this chapter.
(B) Any person not subject to the provisions
of section 1905 of title 18 who knowingly and
willfully divulges or discloses any information
entitled to protection under this subsection
shall, upon conviction, be subject to a fine of
not more than $5,000 or to imprisonment not
to exceed one year, or both.
(C) In submitting data under this chapter, a
person required to provide such data may (i)
designate the data which such person believes
is entitled to protection under this subsection
and (ii) submit such designated data separately from other data submitted under this
chapter. A designation under this paragraph
shall be made in writing and in such manner
as the President may prescribe by regulation.
(D) Notwithstanding any limitation contained in this section or any other provision of

§ 9604

TITLE 42—THE PUBLIC HEALTH AND WELFARE

law, all information reported to or otherwise
obtained by the President (or any representative of the President) under this chapter shall
be made available, upon written request of any
duly authorized committee of the Congress, to
such committee.
(E) No person required to provide information under this chapter may claim that the information is entitled to protection under this
paragraph unless such person shows each of
the following:
(i) Such person has not disclosed the information to any other person, other than a
member of a local emergency planning committee established under title III of the
Amendments and Reauthorization Act of
1986 [42 U.S.C. 11001 et seq.], an officer or employee of the United States or a State or
local government, an employee of such person, or a person who is bound by a confidentiality agreement, and such person has
taken reasonable measures to protect the
confidentiality of such information and intends to continue to take such measures.
(ii) The information is not required to be
disclosed, or otherwise made available, to
the public under any other Federal or State
law.
(iii) Disclosure of the information is likely
to cause substantial harm to the competitive position of such person.
(iv) The specific chemical identity, if
sought to be protected, is not readily discoverable through reverse engineering.
(F) The following information with respect
to any hazardous substance at the facility or
vessel shall not be entitled to protection under
this paragraph:
(i) The trade name, common name, or generic class or category of the hazardous substance.
(ii) The physical properties of the substance, including its boiling point, melting
point, flash point, specific gravity, vapor
density, solubility in water, and vapor pressure at 20 degrees celsius.
(iii) The hazards to health and the environment posed by the substance, including
physical hazards (such as explosion) and potential acute and chronic health hazards.
(iv) The potential routes of human exposure to the substance at the facility, establishment, place, or property being investigated, entered, or inspected under this subsection.
(v) The location of disposal of any waste
stream.
(vi) Any monitoring data or analysis of
monitoring data pertaining to disposal activities.
(vii) Any hydrogeologic or geologic data.
(viii) Any groundwater monitoring data.
(f) Contracts for response actions; compliance
with Federal health and safety standards
In awarding contracts to any person engaged
in response actions, the President or the State,
in any case where it is awarding contracts pursuant to a contract entered into under subsection (d) of this section, shall require compliance with Federal health and safety standards

Page 6826

established under section 9651(f) of this title by
contractors and subcontractors as a condition of
such contracts.
(g) Rates for wages and labor standards applicable to covered work
(1) All laborers and mechanics employed by
contractors or subcontractors in the performance of construction, repair, or alteration work
funded in whole or in part under this section
shall be paid wages at rates not less than those
prevailing on projects of a character similar in
the locality as determined by the Secretary of
Labor in accordance with sections 3141–3144,
3146, and 3147 of title 40. The President shall not
approve any such funding without first obtaining adequate assurance that required labor
standards will be maintained upon the construction work.
(2) The Secretary of Labor shall have, with respect to the labor standards specified in paragraph (1), the authority and functions set forth
in Reorganization Plan Numbered 14 of 1950 (15
F.R. 3176; 64 Stat. 1267) and section 3145 of title
40.
(h) Emergency procurement powers; exercise by
President
Notwithstanding any other provision of law,
subject to the provisions of section 9611 of this
title, the President may authorize the use of
such emergency procurement powers as he
deems necessary to effect the purpose of this
chapter. Upon determination that such procedures are necessary, the President shall promulgate regulations prescribing the circumstances
under which such authority shall be used and
the procedures governing the use of such authority.
(i) Agency for Toxic Substances and Disease Registry; establishment, functions, etc.
(1) There is hereby established within the Public Health Service an agency, to be known as the
Agency for Toxic Substances and Disease Registry, which shall report directly to the Surgeon
General of the United States. The Administrator
of said Agency shall, with the cooperation of the
Administrator of the Environmental Protection
Agency, the Commissioner of the Food and Drug
Administration, the Directors of the National
Institute of Medicine, National Institute of Environmental Health Sciences, National Institute
of Occupational Safety and Health, Centers for
Disease Control and Prevention, the Administrator of the Occupational Safety and Health
Administration, the Administrator of the Social
Security Administration, the Secretary of
Transportation, and appropriate State and local
health officials, effectuate and implement the
health related authorities of this chapter. In addition, said Administrator shall—
(A) in cooperation with the States, establish
and maintain a national registry of serious
diseases and illnesses and a national registry
of persons exposed to toxic substances;
(B) establish and maintain inventory of literature, research, and studies on the health effects of toxic substances;
(C) in cooperation with the States, and other
agencies of the Federal Government, establish
and maintain a complete listing of areas

Page 6827

TITLE 42—THE PUBLIC HEALTH AND WELFARE

closed to the public or otherwise restricted in
use because of toxic substance contamination;
(D) in cases of public health emergencies
caused or believed to be caused by exposure to
toxic substances, provide medical care and
testing to exposed individuals, including but
not limited to tissue sampling, chromosomal
testing where appropriate, epidemiological
studies, or any other assistance appropriate
under the circumstances; and
(E) either independently or as part of other
health status survey, conduct periodic survey
and screening programs to determine relationships between exposure to toxic substances
and illness. In cases of public health emergencies, exposed persons shall be eligible for
admission to hospitals and other facilities and
services operated or provided by the Public
Health Service.
(2)(A) Within 6 months after October 17, 1986,
the Administrator of the Agency for Toxic Substances and Disease Registry (ATSDR) and the
Administrator of the Environmental Protection
Agency (‘‘EPA’’) shall prepare a list, in order of
priority, of at least 100 hazardous substances
which are most commonly found at facilities on
the National Priorities List and which, in their
sole discretion, they determine are posing the
most significant potential threat to human
health due to their known or suspected toxicity
to humans and the potential for human exposure
to such substances at facilities on the National
Priorities List or at facilities to which a response to a release or a threatened release under
this section is under consideration.
(B) Within 24 months after October 17, 1986,
the Administrator of ATSDR and the Administrator of EPA shall revise the list prepared
under subparagraph (A). Such revision shall include, in order of priority, the addition of 100 or
more such hazardous substances. In each of the
3 consecutive 12-month periods that follow, the
Administrator of ATSDR and the Administrator
of EPA shall revise, in the same manner as provided in the 2 preceding sentences, such list to
include not fewer than 25 additional hazardous
substances per revision. The Administrator of
ATSDR and the Administrator of EPA shall not
less often than once every year thereafter revise
such list to include additional hazardous substances in accordance with the criteria in subparagraph (A).
(3) Based on all available information, including information maintained under paragraph
(1)(B) and data developed and collected on the
health effects of hazardous substances under
this paragraph, the Administrator of ATSDR
shall prepare toxicological profiles of each of
the substances listed pursuant to paragraph (2).
The toxicological profiles shall be prepared in
accordance with guidelines developed by the Administrator of ATSDR and the Administrator of
EPA. Such profiles shall include, but not be limited to each of the following:
(A) An examination, summary, and interpretation of available toxicological information
and epidemiologic evaluations on a hazardous
substance in order to ascertain the levels of
significant human exposure for the substance
and the associated acute, subacute, and chronic health effects.

§ 9604

(B) A determination of whether adequate information on the health effects of each substance is available or in the process of development to determine levels of exposure which
present a significant risk to human health of
acute, subacute, and chronic health effects.
(C) Where appropriate, an identification of
toxicological testing needed to identify the
types or levels of exposure that may present
significant risk of adverse health effects in humans.
Any toxicological profile or revision thereof
shall reflect the Administrator of ATSDR’s assessment of all relevant toxicological testing
which has been peer reviewed. The profiles required to be prepared under this paragraph for
those hazardous substances listed under subparagraph (A) of paragraph (2) shall be completed, at a rate of no fewer than 25 per year,
within 4 years after October 17, 1986. A profile
required on a substance listed pursuant to subparagraph (B) of paragraph (2) shall be completed within 3 years after addition to the list.
The profiles prepared under this paragraph shall
be of those substances highest on the list of priorities under paragraph (2) for which profiles
have not previously been prepared. Profiles required under this paragraph shall be revised and
republished as necessary, but no less often than
once every 3 years. Such profiles shall be provided to the States and made available to other
interested parties.
(4) The Administrator of the ATSDR shall provide consultations upon request on health issues
relating to exposure to hazardous or toxic substances, on the basis of available information, to
the Administrator of EPA, State officials, and
local officials. Such consultations to individuals
may be provided by States under cooperative
agreements established under this chapter.
(5)(A) For each hazardous substance listed pursuant to paragraph (2), the Administrator of
ATSDR (in consultation with the Administrator
of EPA and other agencies and programs of the
Public Health Service) shall assess whether adequate information on the health effects of such
substance is available. For any such substance
for which adequate information is not available
(or under development), the Administrator of
ATSDR, in cooperation with the Director of the
National Toxicology Program, shall assure the
initiation of a program of research designed to
determine the health effects (and techniques for
development of methods to determine such
health effects) of such substance. Where feasible,
such program shall seek to develop methods to
determine the health effects of such substance
in combination with other substances with
which it is commonly found. Before assuring the
initiation of such program, the Administrator of
ATSDR shall consider recommendations of the
Interagency Testing Committee established
under section 4(e) of the Toxic Substances Control Act [15 U.S.C. 2603(e)] on the types of research that should be done. Such program shall
include, to the extent necessary to supplement
existing information, but shall not be limited
to—
(i) laboratory and other studies to determine
short, intermediate, and long-term health effects;

§ 9604

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(ii) laboratory and other studies to determine organ-specific, site-specific, and systemspecific acute and chronic toxicity;
(iii) laboratory and other studies to determine the manner in which such substances are
metabolized or to otherwise develop an understanding of the biokinetics of such substances;
and
(iv) where there is a possibility of obtaining
human data, the collection of such information.
(B) In assessing the need to perform laboratory and other studies, as required by subparagraph (A), the Administrator of ATSDR shall
consider—
(i) the availability and quality of existing
test data concerning the substance on the suspected health effect in question;
(ii) the extent to which testing already in
progress will, in a timely fashion, provide data
that will be adequate to support the preparation of toxicological profiles as required by
paragraph (3); and
(iii) such other scientific and technical factors as the Administrator of ATSDR may determine are necessary for the effective implementation of this subsection.
(C) In the development and implementation of
any research program under this paragraph, the
Administrator of ATSDR and the Administrator
of EPA shall coordinate such research program
implemented under this paragraph with the National Toxicology Program and with programs
of toxicological testing established under the
Toxic Substances Control Act [15 U.S.C. 2601 et
seq.] and the Federal Insecticide, Fungicide and
Rodenticide Act [7 U.S.C. 136 et seq.]. The purpose of such coordination shall be to avoid duplication of effort and to assure that the hazardous substances listed pursuant to this subsection are tested thoroughly at the earliest
practicable date. Where appropriate, consistent
with such purpose, a research program under
this paragraph may be carried out using such
programs of toxicological testing.
(D) It is the sense of the Congress that the
costs of research programs under this paragraph
be borne by the manufacturers and processors of
the hazardous substance in question, as required
in programs of toxicological testing under the
Toxic Substances Control Act [15 U.S.C. 2601 et
seq.]. Within 1 year after October 17, 1986, the
Administrator of EPA shall promulgate regulations which provide, where appropriate, for payment of such costs by manufacturers and processors under the Toxic Substances Control Act,
and registrants under the Federal Insecticide,
Fungicide, and Rodenticide Act [7 U.S.C. 136 et
seq.], and recovery of such costs from responsible parties under this chapter.
(6)(A) The Administrator of ATSDR shall perform a health assessment for each facility on
the National Priorities List established under
section 9605 of this title. Such health assessment
shall be completed not later than December 10,
1988, for each facility proposed for inclusion on
such list prior to October 17, 1986, or not later
than one year after the date of proposal for inclusion on such list for each facility proposed
for inclusion on such list after October 17, 1986.

Page 6828

(B) The Administrator of ATSDR may perform
health assessments for releases or facilities
where individual persons or licensed physicians
provide information that individuals have been
exposed to a hazardous substance, for which the
probable source of such exposure is a release. In
addition to other methods (formal or informal)
of providing such information, such individual
persons or licensed physicians may submit a petition to the Administrator of ATSDR providing
such information and requesting a health assessment. If such a petition is submitted and the Administrator of ATSDR does not initiate a health
assessment, the Administrator of ATSDR shall
provide a written explanation of why a health
assessment is not appropriate.
(C) In determining the priority in which to
conduct health assessments under this subsection, the Administrator of ATSDR, in consultation with the Administrator of EPA, shall
give priority to those facilities at which there is
documented evidence of the release of hazardous
substances, at which the potential risk to
human health appears highest, and for which in
the judgment of the Administrator of ATSDR
existing health assessment data are inadequate
to assess the potential risk to human health as
provided in subparagraph (F). In determining
the priorities for conducting health assessments
under this subsection, the Administrator of
ATSDR shall consider the National Priorities
List schedules and the needs of the Environmental Protection Agency and other Federal
agencies pursuant to schedules for remedial investigation and feasibility studies.
(D) Where a health assessment is done at a
site on the National Priorities List, the Administrator of ATSDR shall complete such assessment promptly and, to the maximum extent
practicable, before the completion of the remedial investigation and feasibility study at the
facility concerned.
(E) Any State or political subdivision carrying
out a health assessment for a facility shall report the results of the assessment to the Administrator of ATSDR and the Administrator of
EPA and shall include recommendations with
respect to further activities which need to be
carried out under this section. The Administrator of ATSDR shall state such recommendation in any report on the results of any assessment carried out directly by the Administrator
of ATSDR for such facility and shall issue periodic reports which include the results of all the
assessments carried out under this subsection.
(F) For the purposes of this subsection and
section 9611(c)(4) of this title, the term ‘‘health
assessments’’ shall include preliminary assessments of the potential risk to human health
posed by individual sites and facilities, based on
such factors as the nature and extent of contamination, the existence of potential pathways
of human exposure (including ground or surface
water contamination, air emissions, and food
chain contamination), the size and potential
susceptibility of the community within the likely pathways of exposure, the comparison of expected human exposure levels to the short-term
and long-term health effects associated with
identified hazardous substances and any available recommended exposure or tolerance limits

Page 6829

TITLE 42—THE PUBLIC HEALTH AND WELFARE

for such hazardous substances, and the comparison of existing morbidity and mortality data on
diseases that may be associated with the observed levels of exposure. The Administrator of
ATSDR shall use appropriate data, risk assessments, risk evaluations and studies available
from the Administrator of EPA.
(G) The purpose of health assessments under
this subsection shall be to assist in determining
whether actions under paragraph (11) of this subsection should be taken to reduce human exposure to hazardous substances from a facility and
whether additional information on human exposure and associated health risks is needed and
should be acquired by conducting epidemiological studies under paragraph (7), establishing a
registry under paragraph (8), establishing a
health surveillance program under paragraph
(9), or through other means. In using the results
of health assessments for determining additional actions to be taken under this section,
the Administrator of ATSDR may consider additional information on the risks to the potentially affected population from all sources of
such hazardous substances including known
point or nonpoint sources other than those from
the facility in question.
(H) At the completion of each health assessment, the Administrator of ATSDR shall provide the Administrator of EPA and each affected
State with the results of such assessment, together with any recommendations for further
actions under this subsection or otherwise under
this chapter. In addition, if the health assessment indicates that the release or threatened
release concerned may pose a serious threat to
human health or the environment, the Administrator of ATSDR shall so notify the Administrator of EPA who shall promptly evaluate such
release or threatened release in accordance with
the hazard ranking system referred to in section
9605(a)(8)(A) of this title to determine whether
the site shall be placed on the National Priorities List or, if the site is already on the list, the
Administrator of ATSDR may recommend to
the Administrator of EPA that the site be accorded a higher priority.
(7)(A) Whenever in the judgment of the Administrator of ATSDR it is appropriate on the basis
of the results of a health assessment, the Administrator of ATSDR shall conduct a pilot
study of health effects for selected groups of exposed individuals in order to determine the desirability of conducting full scale epidemiological or other health studies of the entire exposed
population.
(B) Whenever in the judgment of the Administrator of ATSDR it is appropriate on the basis of
the results of such pilot study or other study or
health assessment, the Administrator of ATSDR
shall conduct such full scale epidemiological or
other health studies as may be necessary to determine the health effects on the population exposed to hazardous substances from a release or
threatened release. If a significant excess of disease in a population is identified, the letter of
transmittal of such study shall include an assessment of other risk factors, other than a release, that may, in the judgment of the peer review group, be associated with such disease, if
such risk factors were not taken into account in
the design or conduct of the study.

§ 9604

(8) In any case in which the results of a health
assessment indicate a potential significant risk
to human health, the Administrator of ATSDR
shall consider whether the establishment of a
registry of exposed persons would contribute to
accomplishing the purposes of this subsection,
taking into account circumstances bearing on
the usefulness of such a registry, including the
seriousness or unique character of identified diseases or the likelihood of population migration
from the affected area.
(9) Where the Administrator of ATSDR has determined that there is a significant increased
risk of adverse health effects in humans from
exposure to hazardous substances based on the
results of a health assessment conducted under
paragraph (6), an epidemiologic study conducted
under paragraph (7), or an exposure registry that
has been established under paragraph (8), and
the Administrator of ATSDR has determined
that such exposure is the result of a release
from a facility, the Administrator of ATSDR
shall initiate a health surveillance program for
such population. This program shall include but
not be limited to—
(A) periodic medical testing where appropriate of population subgroups to screen for
diseases for which the population or subgroup
is at significant increased risk; and
(B) a mechanism to refer for treatment
those individuals within such population who
are screened positive for such diseases.
(10) Two years after October 17, 1986, and every
2 years thereafter, the Administrator of ATSDR
shall prepare and submit to the Administrator
of EPA and to the Congress a report on the results of the activities of ATSDR regarding—
(A) health assessments and pilot health effects studies conducted;
(B) epidemiologic studies conducted;
(C) hazardous substances which have been
listed under paragraph (2), toxicological profiles which have been developed, and toxicologic testing which has been conducted or
which is being conducted under this subsection;
(D) registries established under paragraph
(8); and
(E) an overall assessment, based on the results of activities conducted by the Administrator of ATSDR, of the linkage between
human exposure to individual or combinations
of hazardous substances due to releases from
facilities covered by this chapter or the Solid
Waste Disposal Act [42 U.S.C. 6901 et seq.] and
any increased incidence or prevalence of adverse health effects in humans.
(11) If a health assessment or other study carried out under this subsection contains a finding
that the exposure concerned presents a significant risk to human health, the President shall
take such steps as may be necessary to reduce
such exposure and eliminate or substantially
mitigate the significant risk to human health.
Such steps may include the use of any authority
under this chapter, including, but not limited
to—
(A) provision of alternative water supplies,
and
(B) permanent or temporary relocation of individuals.

§ 9604

TITLE 42—THE PUBLIC HEALTH AND WELFARE

In any case in which information is insufficient,
in the judgment of the Administrator of ATSDR
or the President to determine a significant
human exposure level with respect to a hazardous substance, the President may take such
steps as may be necessary to reduce the exposure of any person to such hazardous substance
to such level as the President deems necessary
to protect human health.
(12) In any case which is the subject of a petition, a health assessment or study, or a research
program under this subsection, nothing in this
subsection shall be construed to delay or otherwise affect or impair the authority of the President, the Administrator of ATSDR, or the Administrator of EPA to exercise any authority
vested in the President, the Administrator of
ATSDR or the Administrator of EPA under any
other provision of law (including, but not limited to, the imminent hazard authority of section 7003 of the Solid Waste Disposal Act [42
U.S.C. 6973]) or the response and abatement authorities of this chapter.
(13) All studies and results of research conducted under this subsection (other than health
assessments) shall be reported or adopted only
after appropriate peer review. Such peer review
shall be completed, to the maximum extent
practicable, within a period of 60 days. In the
case of research conducted under the National
Toxicology Program, such peer review may be
conducted by the Board of Scientific Counselors.
In the case of other research, such peer review
shall be conducted by panels consisting of no
less than three nor more than seven members,
who shall be disinterested scientific experts selected for such purpose by the Administrator of
ATSDR or the Administrator of EPA, as appropriate, on the basis of their reputation for scientific objectivity and the lack of institutional
ties with any person involved in the conduct of
the study or research under review. Support
services for such panels shall be provided by the
Agency for Toxic Substances and Disease Registry, or by the Environmental Protection Agency, as appropriate.
(14) In the implementation of this subsection
and other health-related authorities of this
chapter, the Administrator of ATSDR shall assemble, develop as necessary, and distribute to
the States, and upon request to medical colleges, physicians, and other health professionals, appropriate educational materials (including short courses) on the medical surveillance, screening, and methods of diagnosis and
treatment of injury or disease related to exposure to hazardous substances (giving priority to
those listed in paragraph (2)), through such
means as the Administrator of ATSDR deems
appropriate.
(15) The activities of the Administrator of
ATSDR described in this subsection and section
9611(c)(4) of this title shall be carried out by the
Administrator of ATSDR, either directly or
through cooperative agreements with States (or
political subdivisions thereof) which the Administrator of ATSDR determines are capable of
carrying out such activities. Such activities
shall include provision of consultations on
health information, the conduct of health assessments, including those required under sec-

Page 6830

tion 3019(b) of the Solid Waste Disposal Act [42
U.S.C. 6939a(b)], health studies, registries, and
health surveillance.
(16) The President shall provide adequate personnel for ATSDR, which shall not be fewer than
100 employees. For purposes of determining the
number of employees under this subsection, an
employee employed by ATSDR on a part-time
career employment basis shall be counted as a
fraction which is determined by dividing 40
hours into the average number of hours of such
employee’s regularly scheduled workweek.
(17) In accordance with section 9620 of this
title (relating to Federal facilities), the Administrator of ATSDR shall have the same authorities under this section with respect to facilities
owned or operated by a department, agency, or
instrumentality of the United States as the Administrator of ATSDR has with respect to any
nongovernmental entity.
(18) If the Administrator of ATSDR determines that it is appropriate for purposes of this
section to treat a pollutant or contaminant as a
hazardous substance, such pollutant or contaminant shall be treated as a hazardous substance
for such purpose.
(j) Acquisition of property
(1) Authority
The President is authorized to acquire, by
purchase, lease, condemnation, donation, or
otherwise, any real property or any interest in
real property that the President in his discretion determines is needed to conduct a remedial action under this chapter. There shall be
no cause of action to compel the President to
acquire any interest in real property under
this chapter.
(2) State assurance
The President may use the authority of
paragraph (1) for a remedial action only if, before an interest in real estate is acquired
under this subsection, the State in which the
interest to be acquired is located assures the
President, through a contract or cooperative
agreement or otherwise, that the State will
accept transfer of the interest following completion of the remedial action.
(3) Exemption
No Federal, State, or local government
agency shall be liable under this chapter solely as a result of acquiring an interest in real
estate under this subsection.
(k) Brownfields revitalization funding
(1) Definition of eligible entity
In this subsection, the term ‘‘eligible entity’’ means—
(A) a general purpose unit of local government;
(B) a land clearance authority or other
quasi-governmental entity that operates
under the supervision and control of or as an
agent of a general purpose unit of local government;
(C) a government entity created by a State
legislature;
(D) a regional council or group of general
purpose units of local government;
(E) a redevelopment agency that is chartered or otherwise sanctioned by a State;

Page 6831

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(F) a State;
(G) an Indian Tribe other than in Alaska;
or
(H) an Alaska Native Regional Corporation
and an Alaska Native Village Corporation as
those terms are defined in the Alaska Native
Claims Settlement Act (43 U.S.C. 1601 and
following) and the Metlakatla Indian community.
(2) Brownfield site characterization and assessment grant program
(A) Establishment of program
The Administrator shall establish a program to—
(i) provide grants to inventory, characterize, assess, and conduct planning related to brownfield sites under subparagraph
(B); and
(ii) perform targeted site assessments at
brownfield sites.
(B) Assistance for site characterization and
assessment
(i) In general
On approval of an application made by
an eligible entity, the Administrator may
make a grant to the eligible entity to be
used for programs to inventory, characterize, assess, and conduct planning related to
one or more brownfield sites.
(ii) Site characterization and assessment
A site characterization and assessment
carried out with the use of a grant under
clause (i) shall be performed in accordance
with section 9601(35)(B) of this title.
(3) Grants and loans for brownfield remediation
(A) Grants provided by the President
Subject to paragraphs (4) and (5), the
President shall establish a program to provide grants to—
(i) eligible entities, to be used for capitalization of revolving loan funds; and
(ii) eligible entities or nonprofit organizations, where warranted, as determined
by the President based on considerations
under subparagraph (C), to be used directly
for remediation of one or more brownfield
sites owned by the entity or organization
that receives the grant and in amounts not
to exceed $200,000 for each site to be remediated.
(B) Loans and grants provided by eligible entities
An eligible entity that receives a grant
under subparagraph (A)(i) shall use the grant
funds to provide assistance for the remediation of brownfield sites in the form of—
(i) one or more loans to an eligible entity, a site owner, a site developer, or another person; or
(ii) one or more grants to an eligible entity or other nonprofit organization, where
warranted, as determined by the eligible
entity that is providing the assistance,
based on considerations under subparagraph (C), to remediate sites owned by the
eligible entity or nonprofit organization
that receives the grant.

§ 9604

(C) Considerations
In determining whether a grant under subparagraph (A)(ii) or (B)(ii) is warranted, the
President or the eligible entity, as the case
may be, shall take into consideration—
(i) the extent to which a grant will facilitate the creation of, preservation of, or
addition to a park, a greenway, undeveloped property, recreational property, or
other property used for nonprofit purposes;
(ii) the extent to which a grant will meet
the needs of a community that has an inability to draw on other sources of funding
for environmental remediation and subsequent redevelopment of the area in which
a brownfield site is located because of the
small population or low income of the
community;
(iii) the extent to which a grant will facilitate the use or reuse of existing infrastructure;
(iv) the benefit of promoting the longterm availability of funds from a revolving
loan fund for brownfield remediation; and
(v) such other similar factors as the Administrator considers appropriate to consider for the purposes of this subsection.
(D) Transition
Revolving loan funds that have been established before January 11, 2002, may be used
in accordance with this paragraph.
(4) General provisions
(A) Maximum grant amount
(i) Brownfield site characterization and assessment
(I) In general
A grant under paragraph (2) may be
awarded to an eligible entity on a community-wide or site-by-site basis, and
shall not exceed, for any individual
brownfield site covered by the grant,
$200,000.
(II) Waiver
The Administrator may waive the
$200,000 limitation under subclause (I) to
permit the brownfield site to receive a
grant of not to exceed $350,000, based on
the anticipated level of contamination,
size, or status of ownership of the site.
(ii) Brownfield remediation
A grant under paragraph (3)(A)(i) may be
awarded to an eligible entity on a community-wide or site-by-site basis, not to exceed $1,000,000 per eligible entity. The Administrator may make an additional grant
to an eligible entity described in the previous sentence for any year after the year
for which the initial grant is made, taking
into consideration—
(I) the number of sites and number of
communities that are addressed by the
revolving loan fund;
(II) the demand for funding by eligible
entities that have not previously received a grant under this subsection;
(III) the demonstrated ability of the eligible entity to use the revolving loan

§ 9604

TITLE 42—THE PUBLIC HEALTH AND WELFARE

fund to enhance remediation and provide
funds on a continuing basis; and
(IV) such other similar factors as the
Administrator considers appropriate to
carry out this subsection.
(B) Prohibition
(i) In general
No part of a grant or loan under this subsection may be used for the payment of—
(I) a penalty or fine;
(II) a Federal cost-share requirement;
(III) an administrative cost;
(IV) a response cost at a brownfield
site for which the recipient of the grant
or loan is potentially liable under section 9607 of this title; or
(V) a cost of compliance with any Federal law (including a Federal law specified in section 9601(39)(B) of this title),
excluding the cost of compliance with
laws applicable to the cleanup.
(ii) Exclusions
For the purposes of clause (i)(III), the
term ‘‘administrative cost’’ does not include the cost of—
(I) investigation and identification of
the extent of contamination;
(II) design and performance of a response action; or
(III) monitoring of a natural resource.
(iii) Exception
Notwithstanding clause (i)(IV), the Administrator may use up to 25 percent of
the funds made available to carry out this
subsection to make a grant or loan under
this subsection to eligible entities that
satisfy all of the elements set forth in section 9601(40) of this title to qualify as a
bona fide prospective purchaser, except
that the date of acquisition of the property
was on or before January 11, 2002.
(C) Assistance for development of local government site remediation programs
A local government that receives a grant
under this subsection may use not to exceed
10 percent of the grant funds to develop and
implement a brownfields program that may
include—
(i) monitoring the health of populations
exposed to one or more hazardous substances from a brownfield site; and
(ii) monitoring and enforcement of any
institutional control used to prevent
human exposure to any hazardous substance from a brownfield site.
(D) Insurance
A recipient of a grant or loan awarded
under paragraph (2) or (3) that performs a
characterization, assessment, or remediation of a brownfield site may use a portion
of the grant or loan to purchase insurance
for the characterization, assessment, or remediation of that site.
(5) Grant applications
(A) Submission
(i) In general
(I) Application
An eligible entity may submit to the
Administrator, through a regional office

Page 6832

of the Environmental Protection Agency
and in such form as the Administrator
may require, an application for a grant
under this subsection for one or more
brownfield sites (including information
on the criteria used by the Administrator to rank applications under subparagraph (C), to the extent that the information is available).
(II) NCP requirements
The Administrator may include in any
requirement for submission of an application under subclause (I) a requirement
of the National Contingency Plan only
to the extent that the requirement is relevant and appropriate to the program
under this subsection.
(ii) Coordination
The Administrator shall coordinate with
other Federal agencies to assist in making
eligible entities aware of other available
Federal resources.
(iii) Guidance
The Administrator shall publish guidance to assist eligible entities in applying
for grants under this subsection.
(B) Approval
The Administrator shall—
(i) at least annually, complete a review
of applications for grants that are received
from eligible entities under this subsection; and
(ii) award grants under this subsection
to eligible entities that the Administrator
determines have the highest rankings
under the ranking criteria established
under subparagraph (C).
(C) Ranking criteria
The Administrator shall establish a system for ranking grant applications received
under this paragraph that includes the following criteria:
(i) The extent to which a grant will stimulate the availability of other funds for environmental assessment or remediation,
and subsequent reuse, of an area in which
one or more brownfield sites are located.
(ii) The potential of the proposed project
or the development plan for an area in
which one or more brownfield sites are located to stimulate economic development
of the area on completion of the cleanup.
(iii) The extent to which a grant would
address or facilitate the identification and
reduction of threats to human health and
the environment, including threats in
areas in which there is a greater-than-normal incidence of diseases or conditions (including cancer, asthma, or birth defects)
that may be associated with exposure to
hazardous substances, pollutants, or contaminants.
(iv) The extent to which a grant would
facilitate the use or reuse of existing infrastructure.
(v) The extent to which a grant would facilitate the creation of, preservation of, or
addition to a park, a greenway, undevel-

Page 6833

TITLE 42—THE PUBLIC HEALTH AND WELFARE

oped property, recreational property, or
other property used for nonprofit purposes.
(vi) The extent to which a grant would
meet the needs of a community that has
an inability to draw on other sources of
funding for environmental remediation
and subsequent redevelopment of the area
in which a brownfield site is located because of the small population or low income of the community.
(vii) The extent to which the applicant is
eligible for funding from other sources.
(viii) The extent to which a grant will
further the fair distribution of funding between urban and nonurban areas.
(ix) The extent to which the grant provides for involvement of the local community in the process of making decisions relating to cleanup and future use of a
brownfield site.
(x) The extent to which a grant would
address or facilitate the identification and
reduction of threats to the health or welfare of children, pregnant women, minority or low-income communities, or other
sensitive populations.
(6) Implementation of brownfields programs
(A) Establishment of program
The Administrator may provide, or fund
eligible entities or nonprofit organizations
to provide, training, research, and technical
assistance to individuals and organizations,
as appropriate, to facilitate the inventory of
brownfield sites, site assessments, remediation of brownfield sites, community involvement, or site preparation.
(B) Funding restrictions
The total Federal funds to be expended by
the Administrator under this paragraph
shall not exceed 15 percent of the total
amount appropriated to carry out this subsection in any fiscal year.
(7) Audits
(A) In general
The Inspector General of the Environmental Protection Agency shall conduct
such reviews or audits of grants and loans
under this subsection as the Inspector General considers necessary to carry out this
subsection.
(B) Procedure
An audit under this subparagraph shall be
conducted in accordance with the auditing
procedures of the Government Accountability Office, including chapter 75 of title 31.
(C) Violations
If the Administrator determines that a
person that receives a grant or loan under
this subsection has violated or is in violation of a condition of the grant, loan, or applicable Federal law, the Administrator
may—
(i) terminate the grant or loan;
(ii) require the person to repay any funds
received; and
(iii) seek any other legal remedies available to the Administrator.

§ 9604

(D) Report to Congress
Not later than 3 years after January 11,
2002, the Inspector General of the Environmental Protection Agency shall submit to
Congress a report that provides a description
of the management of the program (including a description of the allocation of funds
under this subsection).
(8) Leveraging
An eligible entity that receives a grant
under this subsection may use the grant funds
for a portion of a project at a brownfield site
for which funding is received from other
sources if the grant funds are used only for the
purposes described in paragraph (2) or (3).
(9) Agreements
Each grant or loan made under this subsection shall—
(A) include a requirement of the National
Contingency Plan only to the extent that
the requirement is relevant and appropriate
to the program under this subsection, as determined by the Administrator; and
(B) be subject to an agreement that—
(i) requires the recipient to—
(I) comply with all applicable Federal
and State laws; and
(II) ensure that the cleanup protects
human health and the environment;
(ii) requires that the recipient use the
grant or loan exclusively for purposes
specified in paragraph (2) or (3), as applicable;
(iii) in the case of an application by an
eligible entity under paragraph (3)(A), requires the eligible entity to pay a matching share (which may be in the form of a
contribution of labor, material, or services) of at least 20 percent, from non-Federal sources of funding, unless the Administrator determines that the matching
share would place an undue hardship on
the eligible entity; and
(iv) contains such other terms and conditions as the Administrator determines to
be necessary to carry out this subsection.
(10) Facility other than brownfield site
The fact that a facility may not be a
brownfield site within the meaning of section
9601(39)(A) of this title has no effect on the eligibility of the facility for assistance under any
other provision of Federal law.
(11) Effect on Federal laws
Nothing in this subsection affects any liability or response authority under any Federal
law, including—
(A) this chapter (including the last sentence of section 9601(14) of this title);
(B) the Solid Waste Disposal Act (42 U.S.C.
6901 et seq.);
(C) the Federal Water Pollution Control
Act (33 U.S.C. 1251 et seq.);
(D) the Toxic Substances Control Act (15
U.S.C. 2601 et seq.); and
(E) the Safe Drinking Water Act (42 U.S.C.
300f et seq.).

§ 9604

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(12) Funding
(A) Authorization of appropriations
There is authorized to be appropriated to
carry out this subsection $200,000,000 for each
of fiscal years 2002 through 2006.
(B) Use of certain funds
Of the amount made available under subparagraph (A), $50,000,000, or, if the amount
made available is less than $200,000,000, 25
percent of the amount made available, shall
be used for site characterization, assessment, and remediation of facilities described
in section 9601(39)(D)(ii)(II) of this title.
(Pub. L. 96–510, title I, § 104, Dec. 11, 1980, 94 Stat.
2774; Pub. L. 99–499, title I, §§ 104, 110, title II,
§ 207(b), Oct. 17, 1986, 100 Stat. 1617, 1636, 1705;
Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095;
Pub. L. 102–531, title III, § 312(h), Oct. 27, 1992, 106
Stat. 3506; Pub. L. 107–118, title II, § 211(b), Jan.
11, 2002, 115 Stat. 2362; Pub. L. 108–271, § 8(b), July
7, 2004, 118 Stat. 814; Pub. L. 109–59, title I, § 1956,
Aug. 10, 2005, 119 Stat. 1515.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2767, known as the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
which is classified principally to this chapter. For complete classification of this Act to the Code, see Short
Title note set out under section 9601 of this title and
Tables.
The Solid Waste Disposal Act, referred to in subsecs.
(c)(3), (9)(D), (i)(10)(E), and (k)(11)(B), is title II of Pub.
L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2795,
which is classified generally to chapter 82 (§ 6901 et seq.)
of this title. Subtitle C of the Act is classified generally to subchapter III (§ 6921 et seq.) of chapter 82 of this
title. For complete classification of this Act to the
Code, see Short Title note set out under section 6901 of
this title and Tables.
Title III of the Amendments and Reauthorization Act
of 1986, referred to in subsec. (e)(7)(E)(i), probably
means title III of the Superfund Amendments and Reauthorization Act of 1986, Pub. L. 99–499, Oct. 17, 1986,
100 Stat. 1728, known as the Emergency Planning and
Community Right-To-Know Act of 1986, which is classified generally to chapter 116 (§ 11001 et seq.) of this
title. For complete classification of title III to the
Code, see Short Title note set out under section 11001
of this title and Tables.
Reorganization Plan Numbered 14 of 1950, referred to
in subsec. (g)(2), is set out in the Appendix to Title 5,
Government Organization and Employees.
The Toxic Substances Control Act, referred to in subsecs. (i)(5)(C), (D) and (k)(11)(D), is Pub. L. 94–469, Oct.
11, 1976, 90 Stat. 2003, which is classified generally to
chapter 53 (§ 2601 et seq.) of Title 15, Commerce and
Trade. For complete classification of this Act to the
Code, see Short Title note set out under section 2601 of
Title 15 and Tables.
The Federal Insecticide, Fungicide, and Rodenticide
Act, referred to in subsec. (i)(5)(C), (D), is act June 25,
1947, ch. 125, as amended generally by Pub. L. 92–516,
Oct. 21, 1972, 86 Stat. 973, which is classified generally
to subchapter II (§ 136 et seq.) of chapter 6 of Title 7,
Agriculture. For complete classification of this Act to
the Code, see Short Title note set out under section 136
of Title 7 and Tables.
The Alaska Native Claims Settlement Act, referred
to in subsec. (k)(1)(H), is Pub. L. 92–203, Dec. 18, 1971, 85
Stat. 688, which is classified generally to chapter 33
(§ 1601 et seq.) of Title 43, Public Lands. For complete
classification of this Act to the Code, see Short Title
note set out under section 1601 of Title 43 and Tables.

Page 6834

The Federal Water Pollution Control Act, referred to
in subsec. (k)(11)(C), is act June 30, 1948, ch. 758, as
amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86
Stat. 816, which is classified generally to chapter 26
(§ 1251 et seq.) of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the
Code, see Short Title note set out under section 1251 of
Title 33 and Tables.
The Safe Drinking Water Act, referred to in subsec.
(k)(11)(E), is title XIV of act July 1, 1944, as added Dec.
16, 1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660, which is classified generally to subchapter XII (§ 300f et seq.) of
chapter 6A of this title. For complete classification of
this Act to the Code, see Short Title note set out under
section 201 of this title and Tables.
CODIFICATION
In subsec. (g)(1), ‘‘sections 3141–3144, 3146, and 3147 of
title 40’’ substituted for ‘‘the Davis-Bacon Act’’ and, in
subsec. (g)(2), ‘‘section 3145 of title 40’’ substituted for
‘‘section 276c of title 40 of the United States Code’’, on
authority of Pub. L. 107–217, § 5(c), Aug. 21, 2002, 116
Stat. 1303, the first section of which enacted Title 40,
Public Buildings, Property, and Works.
AMENDMENTS
2005—Subsec. (k)(4)(B)(iii). Pub. L. 109–59 added cl.
(iii).
2004—Subsec. (k)(7)(B). Pub. L. 108–271 substituted
‘‘Government Accountability Office’’ for ‘‘General Accounting Office’’.
2002—Subsec. (k). Pub. L. 107–118 added subsec. (k).
1992—Subsec. (i)(1). Pub. L. 102–531 substituted ‘‘Centers for Disease Control and Prevention’’ for ‘‘Centers
for Disease Control’’.
1986—Subsec. (a)(1). Pub. L. 99–499, § 104(a), substituted provisions authorizing the President to allow
owner or operator of facility or vessel or any other responsible party to carry out action, conduct the remedial investigation, or conduct feasibility study under
section 9622 of this title, specifying conditions under
which a remedial investigation or feasibility study
would be authorized, providing for treatment of potentially responsible parties, and requiring President to
give primary attention to those releases which the
President deems may present a public health threat,
for ‘‘, unless the President determines that such removal and remedial action will be done properly by the
owner or operator of the vessel or facility from which
the release or threat of release emanates, or by any
other responsible party.’’
Subsec. (a)(2). Pub. L. 99–499, § 104(b), amended par. (2)
generally. Prior to amendment, par. (2) read as follows:
‘‘For the purposes of this section, ‘pollutant or contaminant’ shall include, but not be limited to, any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or
assimilation into any organism, either directly from
the environment or indirectly by ingestion through
food chains, will or may reasonably be anticipated to
cause death, disease, behavioral abnormalities, cancer,
genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring. The term
does not include petroleum, including crude oil and any
fraction thereof which is not otherwise specifically listed or designated as hazardous substances under section
9601(14)(A) through (F) of this title, nor does it include
natural gas, liquefied natural gas, or synthetic gas of
pipeline quality (or mixtures of natural gas and such
synthetic gas).’’
Subsec. (a)(3), (4). Pub. L. 99–499, § 104(c), added pars.
(3) and (4).
Subsec. (b). Pub. L. 99–499, § 104(d), designated existing provisions as par. (1), inserted par. (1) heading, and
added par. (2).
Subsec. (c)(1). Pub. L. 99–499, § 104(e)(1), substituted
‘‘$2,000,000’’ for ‘‘$1,000,000’’ and ‘‘12 months’’ for ‘‘six
months’’.

Page 6835

TITLE 42—THE PUBLIC HEALTH AND WELFARE

Subsec. (c)(1)(C). Pub. L. 99–499, § 104(e)(2), added cl.
(C).
Subsec. (c)(3). Pub. L. 99–499, §§ 104(f), 207(b), substituted text of cl. (C)(ii) and sentence providing that
‘‘facility’’ does not include navigable waters or beds underlying those waters for ‘‘(ii) at least 50 per centum or
such greater amount as the President may determine
appropriate, taking into account the degree of responsibility of the State or political subdivision, of any
sums expended in response to a release at a facility
that was owned at the time of any disposal of hazardous substances therein by the State or a political subdivision thereof. The President shall grant the State a
credit against the share of the costs for which it is responsible under this paragraph for any documented direct out-of-pocket non-Federal funds expended or obligated by the State or a political subdivision thereof
after January 1, 1978, and before December 11, 1980, for
cost-eligible response actions and claims for damages
compensable under section 9611 of this title relating to
the specific release in question: Provided, however, That
in no event shall the amount of the credit granted exceed the total response costs relating to the release.’’
and inserted provisions relating to remedial action to
be taken on land or water held by an Indian tribe, held
by the United States in trust for Indians, held by a
member of an Indian Tribe (if such land or water is subject to a trust restriction on alienation), or otherwise
within the borders of an Indian reservation.
Subsec. (c)(4). Pub. L. 99–499, § 104(g), amended par. (4)
generally. Prior to amendment, par. (4) read as follows:
‘‘The President shall select appropriate remedial actions determined to be necessary to carry out this section which are to the extent practicable in accordance
with the national contingency plan and which provide
for that cost-effective response which provides a balance between the need for protection of public health
and welfare and the environment at the facility under
consideration, and the availability of amounts from the
Fund established under subchapter II of this chapter to
respond to other sites which present or may present a
threat to public health or welfare or the environment,
taking into consideration the need for immediate action.’’
Subsec. (c)(5). Pub. L. 99–499, § 104(h), added par. (5).
Subsec. (c)(6). Pub. L. 99–499, § 104(i), added par. (6).
Subsec. (c)(7). Pub. L. 99–514 substituted ‘‘Internal
Revenue Code of 1986’’ for ‘‘Internal Revenue Code of
1954’’, which for purposes of codification was translated
as ‘‘title 26’’ thus requiring no change in text.
Pub. L. 99–499, § 104(i), added par. (7).
Subsec. (c)(8). Pub. L. 99–499, § 104(j), added par. (8).
Subsec. (c)(9). Pub. L. 99–499, § 104(k), added par. (9).
Subsec. (d)(1). Pub. L. 99–499, § 104(l), amended par. (1)
generally. Prior to amendment, par. (1) read as follows:
‘‘Where the President determines that a State or political subdivision thereof has the capability to carry out
any or all of the actions authorized in this section, the
President may, in his discretion, enter into a contract
or cooperative agreement with such State or political
subdivision to take such actions in accordance with criteria and priorities established pursuant to section
9605(8) of this title and to be reimbursed for the reasonable response costs thereof from the Fund. Any contract made hereunder shall be subject to the cost-sharing provisions of subsection (c) of this section.’’
Subsec. (e)(1). Pub. L. 99–499, § 104(m), added par. (1),
and struck out former par. (1) which provided for access
to, and copying of, records relating to covered substances, and entry by officers, employees or representatives of the President or a State into places where hazardous substances were or had been generated, stored,
treated or disposed of, or transported from, and inspection and obtaining of samples of such substances and
samples of containers or labeling for such substances.
Subsec. (e)(2) to (6). Pub. L. 99–499, § 104(m), added
pars. (2) to (6). Former par. (2) redesignated (7).
Subsec. (e)(7). Pub. L. 99–499, § 104(m), (n), redesignated par. (2) as (7), aligned margin of par. (7) with
pars. (1) through (6), and added par. heading and subpars. (E) and (F).

§ 9605

Subsec. (i). Pub. L. 99–499, § 110, designated existing
provisions as par. (1), redesignated former pars. (1) to
(5) as subpars. (A) to (E), respectively, of par. (1), in introductory provisions of par. (1), struck out ‘‘and’’ after
‘‘Health Administration,’’ and inserted ‘‘the Secretary
of Transportation, and appropriate State and local
health officials,’’ in par. (1)(D), inserted ‘‘where appropriate’’, and added pars. (2) to (18).
Subsec. (j). Pub. L. 99–499, § 104(o)(1), added subsec. (j).
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
in subsec. (i)(10) of this section relating to the requirement that the Administrator of ATSDR submit a biennial report to Congress, see section 3003 of Pub. L.
104–66, as amended, set out as a note under section 1113
of Title 31, Money and Finance, and the 13th item on
page 154 of House Document No. 103–7.
COORDINATION OF TITLES I TO IV OF PUB. L. 99–499
Any provision of titles I to IV of Pub. L. 99–499, imposing any tax, premium, or fee; establishing any trust
fund; or authorizing expenditures from any trust fund,
to have no force or effect, see section 531 of Pub. L.
99–499, set out as a note under section 1 of Title 26, Internal Revenue Code.

§ 9605. National contingency plan
(a) Revision and republication
Within one hundred and eighty days after December 11, 1980, the President shall, after notice
and opportunity for public comments, revise and
republish the national contingency plan for the
removal of oil and hazardous substances, originally prepared and published pursuant to section 1321 of title 33, to reflect and effectuate the
responsibilities and powers created by this chapter, in addition to those matters specified in section 1321(c)(2) 1 of title 33. Such revision shall include a section of the plan to be known as the
national hazardous substance response plan
which shall establish procedures and standards
for responding to releases of hazardous substances, pollutants, and contaminants, which
shall include at a minimum:
(1) methods for discovering and investigating facilities at which hazardous substances
have been disposed of or otherwise come to be
located;
(2) methods for evaluating, including analyses of relative cost, and remedying any releases or threats of releases from facilities
which pose substantial danger to the public
health or the environment;
(3) methods and criteria for determining the
appropriate extent of removal, remedy, and
other measures authorized by this chapter;
(4) appropriate roles and responsibilities for
the Federal, State, and local governments and
for interstate and nongovernmental entities in
effectuating the plan;
(5) provision for identification, procurement,
maintenance, and storage of response equipment and supplies;
(6) a method for and assignment of responsibility for reporting the existence of such facilities which may be located on federally
owned or controlled properties and any releases of hazardous substances from such facilities;
(7) means of assuring that remedial action
measures are cost-effective over the period of
1 See

References in Text note below.

§ 9605

TITLE 42—THE PUBLIC HEALTH AND WELFARE

potential exposure to the hazardous substances or contaminated materials;
(8)(A) criteria for determining priorities
among
releases
or
threatened
releases
throughout the United States for the purpose
of taking remedial action and, to the extent
practicable taking into account the potential
urgency of such action, for the purpose of taking removal action. Criteria and priorities
under this paragraph shall be based upon relative risk or danger to public health or welfare or the environment, in the judgment of
the President, taking into account to the extent possible the population at risk, the hazard potential of the hazardous substances at
such facilities, the potential for contamination of drinking water supplies, the potential
for direct human contact, the potential for destruction of sensitive ecosystems, the damage
to natural resources which may affect the
human food chain and which is associated with
any release or threatened release, the contamination or potential contamination of the
ambient air which is associated with the release or threatened release, State preparedness to assume State costs and responsibilities, and other appropriate factors;
(B) based upon the criteria set forth in subparagraph (A) of this paragraph, the President
shall list as part of the plan national priorities
among the known releases or threatened releases throughout the United States and shall
revise the list no less often than annually.
Within one year after December 11, 1980, and
annually thereafter, each State shall establish
and submit for consideration by the President
priorities for remedial action among known
releases and potential releases in that State
based upon the criteria set forth in subparagraph (A) of this paragraph. In assembling or
revising the national list, the President shall
consider any priorities established by the
States. To the extent practicable, the highest
priority facilities shall be designated individually and shall be referred to as the ‘‘top priority among known response targets’’, and, to
the extent practicable, shall include among
the one hundred highest priority facilities one
such facility from each State which shall be
the facility designated by the State as presenting the greatest danger to public health or
welfare or the environment among the known
facilities in such State. A State shall be allowed to designate its highest priority facility
only once. Other priority facilities or incidents may be listed singly or grouped for response priority purposes;
(9) specified roles for private organizations
and entities in preparation for response and in
responding to releases of hazardous substances, including identification of appropriate qualifications and capacity therefor and
including consideration of minority firms in
accordance with subsection (f) of this section;
and
(10) standards and testing procedures by
which alternative or innovative treatment
technologies can be determined to be appropriate for utilization in response actions authorized by this chapter.
The plan shall specify procedures, techniques,
materials, equipment, and methods to be em-

Page 6836

ployed in identifying, removing, or remedying
releases of hazardous substances comparable to
those required under section 1321(c)(2)(F) and (G)
and (j)(1) of title 33. Following publication of the
revised national contingency plan, the response
to and actions to minimize damage from hazardous substances releases shall, to the greatest extent possible, be in accordance with the provisions of the plan. The President may, from time
to time, revise and republish the national contingency plan.
(b) Revision of plan
Not later than 18 months after the enactment
of the Superfund Amendments and Reauthorization Act of 1986 [October 17, 1986], the President
shall revise the National Contingency Plan to
reflect the requirements of such amendments.
The portion of such Plan known as ‘‘the National Hazardous Substance Response Plan’’
shall be revised to provide procedures and standards for remedial actions undertaken pursuant
to this chapter which are consistent with
amendments made by the Superfund Amendments and Reauthorization Act of 1986 relating
to the selection of remedial action.
(c) Hazard ranking system
(1) Revision
Not later than 18 months after October 17,
1986, and after publication of notice and opportunity for submission of comments in accordance with section 553 of title 5, the President
shall by rule promulgate amendments to the
hazard ranking system in effect on September
1, 1984. Such amendments shall assure, to the
maximum extent feasible, that the hazard
ranking system accurately assesses the relative degree of risk to human health and the
environment posed by sites and facilities subject to review. The President shall establish
an effective date for the amended hazard ranking system which is not later than 24 months
after October 17, 1986. Such amended hazard
ranking system shall be applied to any site or
facility to be newly listed on the National Priorities List after the effective date established
by the President. Until such effective date of
the regulations, the hazard ranking system in
effect on September 1, 1984, shall continue in
full force and effect.
(2) Health assessment of water contamination
risks
In carrying out this subsection, the President shall ensure that the human health risks
associated with the contamination or potential contamination (either directly or as a result of the runoff of any hazardous substance
or pollutant or contaminant from sites or facilities) of surface water are appropriately assessed where such surface water is, or can be,
used for recreation or potable water consumption. In making the assessment required pursuant to the preceding sentence, the President
shall take into account the potential migration of any hazardous substance or pollutant
or contaminant through such surface water to
downstream sources of drinking water.
(3) Reevaluation not required
The President shall not be required to reevaluate, after October 17, 1986, the hazard

Page 6837

TITLE 42—THE PUBLIC HEALTH AND WELFARE

ranking of any facility which was evaluated in
accordance with the criteria under this section before the effective date of the amendments to the hazard ranking system under
this subsection and which was assigned a national priority under the National Contingency Plan.
(4) New information
Nothing in paragraph (3) shall preclude the
President from taking new information into
account in undertaking response actions under
this chapter.
(d) Petition for assessment of release
Any person who is, or may be, affected by a release or threatened release of a hazardous substance or pollutant or contaminant, may petition the President to conduct a preliminary assessment of the hazards to public health and the
environment which are associated with such release or threatened release. If the President has
not previously conducted a preliminary assessment of such release, the President shall, within
12 months after the receipt of any such petition,
complete such assessment or provide an explanation of why the assessment is not appropriate.
If the preliminary assessment indicates that the
release or threatened release concerned may
pose a threat to human health or the environment, the President shall promptly evaluate
such release or threatened release in accordance
with the hazard ranking system referred to in
paragraph (8)(A) of subsection (a) of this section
to determine the national priority of such release or threatened release.
(e) Releases from earlier sites
Whenever there has been, after January 1,
1985, a significant release of hazardous substances or pollutants or contaminants from a
site which is listed by the President as a ‘‘Site
Cleaned Up To Date’’ on the National Priorities
List (revised edition, December 1984) the site
shall be restored to the National Priorities List,
without application of the hazard ranking system.
(f) Minority contractors
In awarding contracts under this chapter, the
President shall consider the availability of
qualified minority firms. The President shall describe, as part of any annual report submitted to
the Congress under this chapter, the participation of minority firms in contracts carried out
under this chapter. Such report shall contain a
brief description of the contracts which have
been awarded to minority firms under this chapter and of the efforts made by the President to
encourage the participation of such firms in programs carried out under this chapter.
(g) Special study wastes
(1) Application
This subsection applies to facilities—
(A) which as of October 17, 1986, were not
included on, or proposed for inclusion on,
the National Priorities List; and
(B) at which special study wastes described
in paragraph (2), (3)(A)(ii) or (3)(A)(iii) of
section 6921(b) of this title are present in significant quantities, including any such facil-

§ 9605

ity from which there has been a release of a
special study waste.
(2) Considerations in adding facilities to NPL
Pending revision of the hazard ranking system under subsection (c) of this section, the
President shall consider each of the following
factors in adding facilities covered by this section to the National Priorities List:
(A) The extent to which hazard ranking
system score for the facility is affected by
the presence of any special study waste at,
or any release from, such facility.
(B) Available information as to the quantity, toxicity, and concentration of hazardous substances that are constituents of any
special study waste at, or released from such
facility, the extent of or potential for release of such hazardous constituents, the exposure or potential exposure to human population and the environment, and the degree
of hazard to human health or the environment posed by the release of such hazardous
constituents at such facility. This subparagraph refers only to available information
on actual concentrations of hazardous substances and not on the total quantity of special study waste at such facility.
(3) Savings provisions
Nothing in this subsection shall be construed to limit the authority of the President
to remove any facility which as of October 17,
1986, is included on the National Priorities
List from such List, or not to list any facility
which as of such date is proposed for inclusion
on such list.
(4) Information gathering and analysis
Nothing in this chapter shall be construed to
preclude the expenditure of monies from the
Fund for gathering and analysis of information which will enable the President to consider the specific factors required by paragraph (2).
(h) NPL deferral
(1) Deferral to State voluntary cleanups
At the request of a State and subject to
paragraphs (2) and (3), the President generally
shall defer final listing of an eligible response
site on the National Priorities List if the
President determines that—
(A) the State, or another party under an
agreement with or order from the State, is
conducting a response action at the eligible
response site—
(i) in compliance with a State program
that specifically governs response actions
for the protection of public health and the
environment; and
(ii) that will provide long-term protection of human health and the environment; or
(B) the State is actively pursuing an
agreement to perform a response action described in subparagraph (A) at the site with
a person that the State has reason to believe
is capable of conducting a response action
that meets the requirements of subparagraph (A).

§ 9606

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(2) Progress toward cleanup
If, after the last day of the 1-year period beginning on the date on which the President
proposes to list an eligible response site on the
National Priorities List, the President determines that the State or other party is not
making reasonable progress toward completing a response action at the eligible response
site, the President may list the eligible response site on the National Priorities List.
(3) Cleanup agreements
With respect to an eligible response site
under paragraph (1)(B), if, after the last day of
the 1-year period beginning on the date on
which the President proposes to list the eligible response site on the National Priorities
List, an agreement described in paragraph
(1)(B) has not been reached, the President may
defer the listing of the eligible response site
on the National Priorities List for an additional period of not to exceed 180 days if the
President determines deferring the listing
would be appropriate based on—
(A) the complexity of the site;
(B) substantial progress made in negotiations; and
(C) other appropriate factors, as determined by the President.
(4) Exceptions
The President may decline to defer, or elect
to discontinue a deferral of, a listing of an eligible response site on the National Priorities
List if the President determines that—
(A) deferral would not be appropriate because the State, as an owner or operator or
a significant contributor of hazardous substances to the facility, is a potentially responsible party;
(B) the criteria under the National Contingency Plan for issuance of a health advisory
have been met; or
(C) the conditions in paragraphs (1)
through (3), as applicable, are no longer
being met.
(Pub. L. 96–510, title I, § 105, Dec. 11, 1980, 94 Stat.
2779; Pub. L. 99–499, title I, § 105, Oct. 17, 1986, 100
Stat. 1625; Pub. L. 107–118, title II, § 232, Jan. 11,
2002, 115 Stat. 2379.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a), (b), (c)(4), (f),
and (g)(4), was in the original ‘‘this Act’’, meaning Pub.
L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, which is classified principally
to this chapter. For complete classification of this Act
to the Code, see Short Title note set out under section
9601 of this title and Tables.
Section 1321(c)(2) of title 33, referred to in subsec. (a),
was amended generally by Pub. L. 101–380, title IV,
§ 4201(a), Aug. 18, 1990, 104 Stat. 523. Prior to general
amendment, subsec. (c)(2) related to preparation of a
National Contingency Plan. Provisions relating to a
National Contingency Plan are contained in section
1321(d) of Title 33, Navigation and Navigable Waters.
Such amendments and the amendments made by the
Superfund Amendments and Reauthorization Act of
1986, referred to in subsec. (b), are the amendments
made by Pub. L. 99–499, Oct. 17, 1986, 100 Stat. 1613. For
complete classification of this Act to the Code, see
Short Title of 1986 Amendment note set out under section 9601 of this title and Tables.

Page 6838

AMENDMENTS
2002—Subsec. (h). Pub. L. 107–118 added subsec. (h).
1986—Subsec. (a). Pub. L. 99–499, § 105(a)(1), designated
existing provisions as subsec. (a) and added heading.
Subsec. (a)(8)(A). Pub. L. 99–499, § 105(a)(2), inserted
‘‘the damage to natural resources which may affect the
human food chain and which is associated with any release or threatened release, the contamination or potential contamination of the ambient air which is associated with the release or threatened release,’’ after
‘‘ecosystems,’’.
Subsec. (a)(8)(B). Pub. L. 99–499, § 105(a)(3), struck out
‘‘at least four hundred of’’ after ‘‘To the extent practicable,’’, substituted ‘‘one hundred highest priority facilities’’ for ‘‘one hundred highest priority facilities at
least’’, and inserted ‘‘A State shall be allowed to designate its highest priority facility only once.’’
Subsec. (a)(9). Pub. L. 99–499, § 105(a)(4), inserted ‘‘and
including consideration of minority firms in accordance with subsection (f) of this section’’.
Subsec. (a)(10). Pub. L. 99–499, § 105(a)(5), added par.
(10).
Subsecs. (b) to (g). Pub. L. 99–499, § 105(b), added subsecs. (b) to (g).

§ 9606. Abatement actions
(a) Maintenance, jurisdiction, etc.
In addition to any other action taken by a
State or local government, when the President
determines that there may be an imminent and
substantial endangerment to the public health
or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such
relief as may be necessary to abate such danger
or threat, and the district court of the United
States in the district in which the threat occurs
shall have jurisdiction to grant such relief as
the public interest and the equities of the case
may require. The President may also, after notice to the affected State, take other action
under this section including, but not limited to,
issuing such orders as may be necessary to protect public health and welfare and the environment.
(b) Fines; reimbursement
(1) Any person who, without sufficient cause,
willfully violates, or fails or refuses to comply
with, any order of the President under subsection (a) of this section may, in an action
brought in the appropriate United States district court to enforce such order, be fined not
more than $25,000 for each day in which such violation occurs or such failure to comply continues.
(2)(A) Any person who receives and complies
with the terms of any order issued under subsection (a) of this section may, within 60 days
after completion of the required action, petition
the President for reimbursement from the Fund
for the reasonable costs of such action, plus interest. Any interest payable under this paragraph shall accrue on the amounts expended
from the date of expenditure at the same rate as
specified for interest on investments of the Hazardous Substance Superfund established under
subchapter A of chapter 98 of title 26.
(B) If the President refuses to grant all or part
of a petition made under this paragraph, the petitioner may within 30 days of receipt of such refusal file an action against the President in the

Page 6839

TITLE 42—THE PUBLIC HEALTH AND WELFARE

appropriate United States district court seeking
reimbursement from the Fund.
(C) Except as provided in subparagraph (D), to
obtain reimbursement, the petitioner shall establish by a preponderance of the evidence that
it is not liable for response costs under section
9607(a) of this title and that costs for which it
seeks reimbursement are reasonable in light of
the action required by the relevant order.
(D) A petitioner who is liable for response
costs under section 9607(a) of this title may also
recover its reasonable costs of response to the
extent that it can demonstrate, on the administrative record, that the President’s decision in
selecting the response action ordered was arbitrary and capricious or was otherwise not in accordance with law. Reimbursement awarded
under this subparagraph shall include all reasonable response costs incurred by the petitioner pursuant to the portions of the order
found to be arbitrary and capricious or otherwise not in accordance with law.
(E) Reimbursement awarded by a court under
subparagraph (C) or (D) may include appropriate
costs, fees, and other expenses in accordance
with subsections (a) and (d) of section 2412 of
title 28.
(c) Guidelines for using imminent hazard, enforcement, and emergency response authorities; promulgation by Administrator of EPA,
scope, etc.
Within one hundred and eighty days after December 11, 1980, the Administrator of the Environmental Protection Agency shall, after consultation with the Attorney General, establish
and publish guidelines for using the imminent
hazard, enforcement, and emergency response
authorities of this section and other existing
statutes administered by the Administrator of
the Environmental Protection Agency to effectuate the responsibilities and powers created by
this chapter. Such guidelines shall to the extent
practicable be consistent with the national hazardous substance response plan, and shall include, at a minimum, the assignment of responsibility for coordinating response actions with
the issuance of administrative orders, enforcement of standards and permits, the gathering of
information, and other imminent hazard and
emergency powers authorized by (1) sections
1321(c)(2),1 1318, 1319, and 1364(a) of title 33, (2)
sections 6927, 6928, 6934, and 6973 of this title, (3)
sections 300j–4 and 300i of this title, (4) sections
7413, 7414, and 7603 of this title, and (5) section
2606 of title 15.
(Pub. L. 96–510, title I, § 106, Dec. 11, 1980, 94 Stat.
2780; Pub. L. 99–499, title I, §§ 106, 109(b), Oct. 17,
1986, 100 Stat. 1628, 1633; Pub. L. 99–514, § 2, Oct.
22, 1986, 100 Stat. 2095.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (c), was in the
original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, as amended, known as the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, which enacted this chapter, section 6911a of this title, and sections 4611, 4612, 4661, 4662,
4681, and 4682 of Title 26, Internal Revenue Code,
amended section 6911 of this title, section 1364 of Title
1 See

References in Text note below.

§ 9607

33, Navigation and Navigable Waters, and section 11901
of Title 49, Transportation, and enacted provisions set
out as notes under section 6911 of this title and sections
1 and 4611 of Title 26. For complete classification of this
Act to the Code, see Short Title note set out under section 9601 of this title and Tables.
Section 1321(c)(2) of title 33, referred to in subsec. (c),
was amended generally by Pub. L. 101–380, title IV,
§ 4201(a), Aug. 18, 1990, 104 Stat. 523. Prior to general
amendment, subsec. (c)(2) related to preparation of a
National Contingency Plan. Provisions relating to a
National Contingency Plan are contained in section
1321(d) of Title 33, Navigation and Navigable Waters.
AMENDMENTS
1986—Subsec. (b). Pub. L. 99–499 designated existing
provisions as par. (1), substituted ‘‘who, without sufficient cause, willfully’’ for ‘‘who willfully’’ and ‘‘$25,000’’
for ‘‘$5,000’’, and added par. (2).
Subsec. (b)(2)(A). Pub. L. 99–514 substituted ‘‘Internal
Revenue Code of 1986’’ for ‘‘Internal Revenue Code of
1954’’, which for purposes of codification was translated
as ‘‘title 26’’ thus requiring no change in text.
COORDINATION OF TITLES I TO IV OF PUB. L. 99–499
Any provision of titles I to IV of Pub. L. 99–499, imposing any tax, premium, or fee; establishing any trust
fund; or authorizing expenditures from any trust fund,
to have no force or effect, see section 531 of Pub. L.
99–499, set out as a note under section 1 of Title 26, Internal Revenue Code.

§ 9607. Liability
(a) Covered persons; scope; recoverable costs
and damages; interest rate; ‘‘comparable maturity’’ date
Notwithstanding any other provision or rule of
law, and subject only to the defenses set forth in
subsection (b) of this section—
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of
any hazardous substance owned or operated
any facility at which such hazardous substances were disposed of,
(3) any person who by contract, agreement,
or otherwise arranged for disposal or treatment, or arranged with a transporter for
transport for disposal or treatment, of hazardous substances owned or possessed by such
person, by any other party or entity, at any
facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and
(4) any person who accepts or accepted any
hazardous substances for transport to disposal
or treatment facilities, incineration vessels or
sites selected by such person, from which
there is a release, or a threatened release
which causes the incurrence of response costs,
of a hazardous substance, shall be liable for—
(A) all costs of removal or remedial action
incurred by the United States Government
or a State or an Indian tribe not inconsistent with the national contingency plan;
(B) any other necessary costs of response
incurred by any other person consistent with
the national contingency plan;
(C) damages for injury to, destruction of,
or loss of natural resources, including the
reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and

§ 9607

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(D) the costs of any health assessment or
health effects study carried out under section 9604(i) of this title.
The amounts recoverable in an action under this
section shall include interest on the amounts recoverable under subparagraphs (A) through (D).
Such interest shall accrue from the later of (i)
the date payment of a specified amount is demanded in writing, or (ii) the date of the expenditure concerned. The rate of interest on the outstanding unpaid balance of the amounts recoverable under this section shall be the same rate as
is specified for interest on investments of the
Hazardous Substance Superfund established
under subchapter A of chapter 98 of title 26. For
purposes of applying such amendments to interest under this subsection, the term ‘‘comparable
maturity’’ shall be determined with reference to
the date on which interest accruing under this
subsection commences.
(b) Defenses
There shall be no liability under subsection (a)
of this section for a person otherwise liable who
can establish by a preponderance of the evidence
that the release or threat of release of a hazardous substance and the damages resulting therefrom 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 defendant, or
than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant
(except where the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail),
if the defendant establishes by a preponderance of the evidence that (a) he exercised due
care with respect to the hazardous substance
concerned, taking into consideration the characteristics of such hazardous substance, in
light of all relevant facts and circumstances,
and (b) he took precautions against foreseeable acts or omissions of any such third party
and the consequences that could foreseeably
result from such acts or omissions; or
(4) any combination of the foregoing paragraphs.
(c) Determination of amounts
(1) Except as provided in paragraph (2) of this
subsection, the liability under this section of an
owner or operator or other responsible person
for each release of a hazardous substance or incident involving release of a hazardous substance shall not exceed—
(A) for any vessel, other than an incineration vessel, which carries any hazardous substance as cargo or residue, $300 per gross ton,
or $5,000,000, whichever is greater;
(B) for any other vessel, other than an incineration vessel, $300 per gross ton, or $500,000,
whichever is greater;
(C) for any motor vehicle, aircraft, hazardous liquid pipeline facility (as defined in section 60101(a) of title 49), or rolling stock,
$50,000,000 or such lesser amount as the President shall establish by regulation, but in no
event less than $5,000,000 (or, for releases of

Page 6840

hazardous substances as defined in section
9601(14)(A) of this title into the navigable waters, $8,000,000). Such regulations shall take
into account the size, type, location, storage,
and handling capacity and other matters relating to the likelihood of release in each such
class and to the economic impact of such limits on each such class; or
(D) for any incineration vessel or any facility other than those specified in subparagraph
(C) of this paragraph, the total of all costs of
response plus $50,000,000 for any damages under
this subchapter.
(2) Notwithstanding the limitations in paragraph (1) of this subsection, the liability of an
owner or operator or other responsible person
under this section shall be the full and total
costs of response and damages, if (A)(i) the release or threat of release of a hazardous substance was the result of willful misconduct or
willful negligence within the privity or knowledge of such person, or (ii) the primary cause of
the release was a violation (within the privity or
knowledge of such person) of applicable safety,
construction, or operating standards or regulations; or (B) such person fails or refuses to provide all reasonable cooperation and assistance
requested by a responsible public official in connection with response activities under the national contingency plan with respect to regulated carriers subject to the provisions of title
49 or vessels subject to the provisions of title 33
or 46, subparagraph (A)(ii) of this paragraph
shall be deemed to refer to Federal standards or
regulations.
(3) If any person who is liable for a release or
threat of release of a hazardous substance fails
without sufficient cause to properly provide removal or remedial action upon order of the
President pursuant to section 9604 or 9606 of this
title, such person may be liable to the United
States for punitive damages in an amount at
least equal to, and not more than three times,
the amount of any costs incurred by the Fund as
a result of such failure to take proper action.
The President is authorized to commence a civil
action against any such person to recover the
punitive damages, which shall be in addition to
any costs recovered from such person pursuant
to section 9612(c) of this title. Any moneys received by the United States pursuant to this
subsection shall be deposited in the Fund.
(d) Rendering care or advice
(1) In general
Except as provided in paragraph (2), no person shall be liable under this subchapter for
costs or damages as a result of actions taken
or omitted in the course of rendering care, assistance, or advice in accordance with the National Contingency Plan (‘‘NCP’’) or at the direction of an onscene coordinator appointed
under such plan, with respect to an incident
creating a danger to public health or welfare
or the environment as a result of any releases
of a hazardous substance or the threat thereof.
This paragraph shall not preclude liability for
costs or damages as the result of negligence on
the part of such person.

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

(2) State and local governments
No State or local government shall be liable
under this subchapter for costs or damages as
a result of actions taken in response to an
emergency created by the release or threatened release of a hazardous substance generated by or from a facility owned by another
person. This paragraph shall not preclude liability for costs or damages as a result of
gross negligence or intentional misconduct by
the State or local government. For the purpose of the preceding sentence, reckless, willful, or wanton misconduct shall constitute
gross negligence.
(3) Savings provision
This subsection shall not alter the liability
of any person covered by the provisions of
paragraph (1), (2), (3), or (4) of subsection (a) of
this section with respect to the release or
threatened release concerned.
(e) Indemnification, hold harmless, etc., agreements or conveyances; subrogation rights
(1) No indemnification, hold harmless, or similar agreement or conveyance shall be effective
to transfer from the owner or operator of any
vessel or facility or from any person who may be
liable for a release or threat of release under
this section, to any other person the liability
imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold
harmless, or indemnify a party to such agreement for any liability under this section.
(2) Nothing in this subchapter, including the
provisions of paragraph (1) of this subsection,
shall bar a cause of action that an owner or operator or any other person subject to liability
under this section, or a guarantor, has or would
have, by reason of subrogation or otherwise
against any person.
(f) Natural resources liability; designation of
public trustees of natural resources
(1) Natural resources liability
In the case of an injury to, destruction of, or
loss of natural resources under subparagraph
(C) of subsection (a) of this section liability
shall be to the United States Government and
to any State for natural resources within the
State or belonging to, managed by, controlled
by, or appertaining to such State and to any
Indian tribe for natural resources belonging
to, managed by, controlled by, or appertaining
to such tribe, or held in trust for the benefit
of such tribe, or belonging to a member of
such tribe if such resources are subject to a
trust restriction on alienation: Provided, however, That no liability to the United States or
State or Indian tribe shall be imposed under
subparagraph (C) of subsection (a) of this section, where the party sought to be charged has
demonstrated that the damages to natural resources complained of were specifically identified as an irreversible and irretrievable commitment of natural resources in an environmental impact statement, or other comparable environment analysis, and the decision to grant a permit or license authorizes
such commitment of natural resources, and
the facility or project was otherwise operating

§ 9607

within the terms of its permit or license, so
long as, in the case of damages to an Indian
tribe occurring pursuant to a Federal permit
or license, the issuance of that permit or license was not inconsistent with the fiduciary
duty of the United States with respect to such
Indian tribe. The President, or the authorized
representative of any State, shall act on behalf of the public as trustee of such natural resources to recover for such damages. Sums recovered by the United States Government as
trustee under this subsection shall be retained
by the trustee, without further appropriation,
for use only to restore, replace, or acquire the
equivalent of such natural resources. Sums recovered by a State as trustee under this subsection shall be available for use only to restore, replace, or acquire the equivalent of
such natural resources by the State. The
measure of damages in any action under subparagraph (C) of subsection (a) of this section
shall not be limited by the sums which can be
used to restore or replace such resources.
There shall be no double recovery under this
chapter for natural resource damages, including the costs of damage assessment or restoration, rehabilitation, or acquisition for the
same release and natural resource. There shall
be no recovery under the authority of subparagraph (C) of subsection (a) of this section
where such damages and the release of a hazardous substance from which such damages resulted have occurred wholly before December
11, 1980.
(2) Designation of Federal and State officials
(A) Federal
The President shall designate in the National Contingency Plan published under
section 9605 of this title the Federal officials
who shall act on behalf of the public as
trustees for natural resources under this
chapter and section 1321 of title 33. Such officials shall assess damages for injury to, destruction of, or loss of natural resources for
purposes of this chapter and such section
1321 of title 33 for those resources under
their trusteeship and may, upon request of
and reimbursement from a State and at the
Federal officials’ discretion, assess damages
for those natural resources under the State’s
trusteeship.
(B) State
The Governor of each State shall designate
State officials who may act on behalf of the
public as trustees for natural resources
under this chapter and section 1321 of title 33
and shall notify the President of such designations. Such State officials shall assess
damages to natural resources for the purposes of this chapter and such section 1321 of
title 33 for those natural resources under
their trusteeship.
(C) Rebuttable presumption
Any determination or assessment of damages to natural resources for the purposes of
this chapter and section 1321 of title 33 made
by a Federal or State trustee in accordance
with the regulations promulgated under section 9651(c) of this title shall have the force

§ 9607

TITLE 42—THE PUBLIC HEALTH AND WELFARE

and effect of a rebuttable presumption on behalf of the trustee in any administrative or
judicial proceeding under this chapter or
section 1321 of title 33.
(g) Federal agencies
For provisions relating to Federal agencies,
see section 9620 of this title.
(h) Owner or operator of vessel
The owner or operator of a vessel shall be liable in accordance with this section, under maritime tort law, and as provided under section 9614
of this title notwithstanding any provision of
the Act of March 3, 1851 (46 U.S.C. 183ff) 1 or the
absence of any physical damage to the proprietary interest of the claimant.
(i) Application of a registered pesticide product
No person (including the United States or any
State or Indian tribe) may recover under the authority of this section for any response costs or
damages resulting from the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act [7
U.S.C. 136 et seq.]. Nothing in this paragraph
shall affect or modify in any way the obligations
or liability of any person under any other provision of State or Federal law, including common
law, for damages, injury, or loss resulting from
a release of any hazardous substance or for removal or remedial action or the costs of removal
or remedial action of such hazardous substance.
(j) Obligations or liability pursuant to federally
permitted release
Recovery by any person (including the United
States or any State or Indian tribe) for response
costs or damages resulting from a federally permitted release shall be pursuant to existing law
in lieu of this section. Nothing in this paragraph
shall affect or modify in any way the obligations
or liability of any person under any other provision of State or Federal law, including common
law, for damages, injury, or loss resulting from
a release of any hazardous substance or for removal or remedial action or the costs of removal
or remedial action of such hazardous substance.
In addition, costs of response incurred by the
Federal Government in connection with a discharge specified in section 9601(10)(B) or (C) of
this title shall be recoverable in an action
brought under section 1319(b) of title 33.
(k) Transfer to, and assumption by, Post-Closure
Liability Fund of liability of owner or operator of hazardous waste disposal facility in receipt of permit under applicable solid waste
disposal law; time, criteria applicable, procedures, etc.; monitoring costs; reports
(1) The liability established by this section or
any other law for the owner or operator of a hazardous waste disposal facility which has received a permit under subtitle C of the Solid
Waste Disposal Act [42 U.S.C. 6921 et seq.], shall
be transferred to and assumed by the Post-closure Liability Fund established by section 9641 1
of this title when—
(A) such facility and the owner and operator
thereof has complied with the requirements of
subtitle C of the Solid Waste Disposal Act [42
1 See

References in Text note below.

Page 6842

U.S.C. 6921 et seq.] and regulations issued
thereunder, which may affect the performance
of such facility after closure; and
(B) such facility has been closed in accordance with such regulations and the conditions
of such permit, and such facility and the surrounding area have been monitored as required by such regulations and permit conditions for a period not to exceed five years after
closure to demonstrate that there is no substantial likelihood that any migration offsite
or release from confinement of any hazardous
substance or other risk to public health or
welfare will occur.
(2) Such transfer of liability shall be effective
ninety days after the owner or operator of such
facility notifies the Administrator of the Environmental Protection Agency (and the State
where it has an authorized program under section 3006(b) of the Solid Waste Disposal Act [42
U.S.C. 6926(b)]) that the conditions imposed by
this subsection have been satisfied. If within
such ninety-day period the Administrator of the
Environmental Protection Agency or such State
determines that any such facility has not complied with all the conditions imposed by this
subsection or that insufficient information has
been provided to demonstrate such compliance,
the Administrator or such State shall so notify
the owner and operator of such facility and the
administrator of the Fund established by section 9641 1 of this title, and the owner and operator of such facility shall continue to be liable
with respect to such facility under this section
and other law until such time as the Administrator and such State determines that such facility has complied with all conditions imposed
by this subsection. A determination by the Administrator or such State that a facility has not
complied with all conditions imposed by this
subsection or that insufficient information has
been supplied to demonstrate compliance, shall
be a final administrative action for purposes of
judicial review. A request for additional information shall state in specific terms the data required.
(3) In addition to the assumption of liability of
owners and operators under paragraph (1) of this
subsection, the Post-closure Liability Fund established by section 9641 1 of this title may be
used to pay costs of monitoring and care and
maintenance of a site incurred by other persons
after the period of monitoring required by regulations under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.] for hazardous
waste disposal facilities meeting the conditions
of paragraph (1) of this subsection.
(4)(A) Not later than one year after December
11, 1980, the Secretary of the Treasury shall conduct a study and shall submit a report thereon
to the Congress on the feasibility of establishing
or qualifying an optional system of private insurance for postclosure financial responsibility
for hazardous waste disposal facilities to which
this subsection applies. Such study shall include
a specification of adequate and realistic minimum standards to assure that any such privately placed insurance will carry out the purposes of this subsection in a reliable, enforceable, and practical manner. Such a study shall
include an examination of the public and private

Page 6843

TITLE 42—THE PUBLIC HEALTH AND WELFARE

incentives, programs, and actions necessary to
make privately placed insurance a practical and
effective option to the financing system for the
Post-closure Liability Fund provided in subchapter II 1 of this chapter.
(B) Not later than eighteen months after December 11, 1980, and after a public hearing, the
President shall by rule determine whether or
not it is feasible to establish or qualify an optional system of private insurance for postclosure financial responsibility for hazardous waste
disposal facilities to which this subsection applies. If the President determines the establishment or qualification of such a system would be
infeasible, he shall promptly publish an explanation of the reasons for such a determination.
If the President determines the establishment or
qualification of such a system would be feasible,
he shall promptly publish notice of such determination. Not later than six months after an affirmative determination under the preceding
sentence and after a public hearing, the President shall by rule promulgate adequate and realistic minimum standards which must be met by
any such privately placed insurance, taking into
account the purposes of this chapter and this
subsection. Such rules shall also specify reasonably expeditious procedures by which privately
placed insurance plans can qualify as meeting
such minimum standards.
(C) In the event any privately placed insurance plan qualifies under subparagraph (B), any
person enrolled in, and complying with the
terms of, such plan shall be excluded from the
provisions of paragraphs (1), (2), and (3) of this
subsection and exempt from the requirements to
pay any tax or fee to the Post-closure Liability
Fund under subchapter II 1 of this chapter.
(D) The President may issue such rules and
take such other actions as are necessary to effectuate the purposes of this paragraph.
(5) SUSPENSION OF LIABILITY TRANSFER.—Notwithstanding paragraphs (1), (2), (3), and (4) of
this subsection and subsection (j) of section 9611
of this title, no liability shall be transferred to
or assumed by the Post-Closure Liability Trust
Fund established by section 9641 1 of this title
prior to completion of the study required under
paragraph (6) of this subsection, transmission of
a report of such study to both Houses of Congress, and authorization of such a transfer or assumption by Act of Congress following receipt of
such study and report.
(6) STUDY OF OPTIONS FOR POST-CLOSURE PROGRAM.—
(A) STUDY.—The Comptroller General shall
conduct a study of options for a program for
the management of the liabilities associated
with hazardous waste treatment, storage, and
disposal sites after their closure which complements the policies set forth in the Hazardous and Solid Waste Amendments of 1984 and
assures the protection of human health and
the environment.
(B) PROGRAM ELEMENTS.—The program referred to in subparagraph (A) shall be designed
to assure each of the following:
(i) Incentives are created and maintained
for the safe management and disposal of hazardous wastes so as to assure protection of
human health and the environment.

§ 9607

(ii) Members of the public will have reasonable confidence that hazardous wastes
will be managed and disposed of safely and
that resources will be available to address
any problems that may arise and to cover
costs of long-term monitoring, care, and
maintenance of such sites.
(iii) Persons who are or seek to become
owners and operators of hazardous waste disposal facilities will be able to manage their
potential future liabilities and to attract the
investment capital necessary to build, operate, and close such facilities in a manner
which assures protection of human health
and the environment.
(C) ASSESSMENTS.—The study under this
paragraph shall include assessments of treatment, storage, and disposal facilities which
have been or are likely to be issued a permit
under section 3005 of the Solid Waste Disposal
Act [42 U.S.C. 6925] and the likelihood of future insolvency on the part of owners and operators of such facilities. Separate assessments shall be made for different classes of facilities and for different classes of land disposal facilities and shall include but not be
limited to—
(i) the current and future financial capabilities of facility owners and operators;
(ii) the current and future costs associated
with facilities, including the costs of routine
monitoring and maintenance, compliance
monitoring, corrective action, natural resource damages, and liability for damages to
third parties; and
(iii) the availability of mechanisms by
which owners and operators of such facilities
can assure that current and future costs, including post-closure costs, will be financed.
(D) PROCEDURES.—In carrying out the responsibilities of this paragraph, the Comptroller General shall consult with the Administrator, the Secretary of Commerce, the Secretary of the Treasury, and the heads of other
appropriate Federal agencies.
(E) CONSIDERATION OF OPTIONS.—In conducting the study under this paragraph, the Comptroller General shall consider various mechanisms and combinations of mechanisms to
complement the policies set forth in the Hazardous and Solid Waste Amendments of 1984 to
serve the purposes set forth in subparagraph
(B) and to assure that the current and future
costs associated with hazardous waste facilities, including post-closure costs, will be adequately financed and, to the greatest extent
possible, borne by the owners and operators of
such facilities. Mechanisms to be considered
include, but are not limited to—
(i) revisions to closure, post-closure, and
financial responsibility requirements under
subtitles C and I of the Solid Waste Disposal
Act [42 U.S.C. 6921 et seq., 6991 et seq.];
(ii) voluntary risk pooling by owners and
operators;
(iii) legislation to require risk pooling by
owners and operators;
(iv) modification of the Post-Closure Liability Trust Fund previously established by
section 9641 1 of this title, and the conditions

§ 9607

TITLE 42—THE PUBLIC HEALTH AND WELFARE

for transfer of liability under this subsection, including limiting the transfer of
some or all liability under this subsection
only in the case of insolvency of owners and
operators;
(v) private insurance;
(vi) insurance provided by the Federal
Government;
(vii) coinsurance, reinsurance, or pooledrisk insurance, whether provided by the private sector or provided or assisted by the
Federal Government; and
(viii) creation of a new program to be administered by a new or existing Federal
agency or by a federally chartered corporation.
(F) RECOMMENDATIONS.—The Comptroller
General shall consider options for funding any
program under this section and shall, to the
extent necessary, make recommendations to
the appropriate committees of Congress for
additional authority to implement such program.
(l) Federal lien
(1) In general
All costs and damages for which a person is
liable to the United States under subsection
(a) of this section (other than the owner or operator of a vessel under paragraph (1) of subsection (a) of this section) shall constitute a
lien in favor of the United States upon all real
property and rights to such property which—
(A) belong to such person; and
(B) are subject to or affected by a removal
or remedial action.
(2) Duration
The lien imposed by this subsection shall
arise at the later of the following:
(A) The time costs are first incurred by the
United States with respect to a response action under this chapter.
(B) The time that the person referred to in
paragraph (1) is provided (by certified or registered mail) written notice of potential liability.
Such lien shall continue until the liability for
the costs (or a judgment against the person
arising out of such liability) is satisfied or becomes unenforceable through operation of the
statute of limitations provided in section 9613
of this title.
(3) Notice and validity
The lien imposed by this subsection shall be
subject to the rights of any purchaser, holder
of a security interest, or judgment lien creditor whose interest is perfected under applicable State law before notice of the lien has been
filed in the appropriate office within the State
(or county or other governmental subdivision),
as designated by State law, in which the real
property subject to the lien is located. Any
such purchaser, holder of a security interest,
or judgment lien creditor shall be afforded the
same protections against the lien imposed by
this subsection as are afforded under State law
against a judgment lien which arises out of an
unsecured obligation and which arises as of
the time of the filing of the notice of the lien

Page 6844

imposed by this subsection. If the State has
not by law designated one office for the receipt of such notices of liens, the notice shall
be filed in the office of the clerk of the United
States district court for the district in which
the real property is located. For purposes of
this subsection, the terms ‘‘purchaser’’ and
‘‘security interest’’ shall have the definitions
provided under section 6323(h) of title 26.
(4) Action in rem
The costs constituting the lien may be recovered in an action in rem in the United
States district court for the district in which
the removal or remedial action is occurring or
has occurred. Nothing in this subsection shall
affect the right of the United States to bring
an action against any person to recover all
costs and damages for which such person is
liable under subsection (a) of this section.
(m) Maritime lien
All costs and damages for which the owner or
operator of a vessel is liable under subsection
(a)(1) of this section with respect to a release or
threatened release from such vessel shall constitute a maritime lien in favor of the United
States on such vessel. Such costs may be recovered in an action in rem in the district court of
the United States for the district in which the
vessel may be found. Nothing in this subsection
shall affect the right of the United States to
bring an action against the owner or operator of
such vessel in any court of competent jurisdiction to recover such costs.
(n) Liability of fiduciaries
(1) In general
The liability of a fiduciary under any provision of this chapter for the release or threatened release of a hazardous substance at, from,
or in connection with a vessel or facility held
in a fiduciary capacity shall not exceed the assets held in the fiduciary capacity.
(2) Exclusion
Paragraph (1) does not apply to the extent
that a person is liable under this chapter independently of the person’s ownership of a vessel
or facility as a fiduciary or actions taken in a
fiduciary capacity.
(3) Limitation
Paragraphs (1) and (4) do not limit the liability pertaining to a release or threatened release of a hazardous substance if negligence of
a fiduciary causes or contributes to the release or threatened release.
(4) Safe harbor
A fiduciary shall not be liable in its personal
capacity under this chapter for—
(A) undertaking or directing another person to undertake a response action under
subsection (d)(1) of this section or under the
direction of an on scene coordinator designated under the National Contingency
Plan;
(B) undertaking or directing another person to undertake any other lawful means of
addressing a hazardous substance in connection with the vessel or facility;
(C) terminating the fiduciary relationship;

Page 6845

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(D) including in the terms of the fiduciary
agreement a covenant, warranty, or other
term or condition that relates to compliance
with an environmental law, or monitoring,
modifying or enforcing the term or condition;
(E) monitoring or undertaking 1 or more
inspections of the vessel or facility;
(F) providing financial or other advice or
counseling to other parties to the fiduciary
relationship, including the settlor or beneficiary;
(G) restructuring, renegotiating, or otherwise altering the terms and conditions of the
fiduciary relationship;
(H) administering, as a fiduciary, a vessel
or facility that was contaminated before the
fiduciary relationship began; or
(I) declining to take any of the actions described in subparagraphs (B) through (H).
(5) Definitions
As used in this chapter:
(A) Fiduciary
The term ‘‘fiduciary’’—
(i) means a person acting for the benefit
of another party as a bona fide—
(I) trustee;
(II) executor;
(III) administrator;
(IV) custodian;
(V) guardian of estates or guardian ad
litem;
(VI) receiver;
(VII) conservator;
(VIII) committee of estates of incapacitated persons;
(IX) personal representative;
(X) trustee (including a successor to a
trustee) under an indenture agreement,
trust agreement, lease, or similar financing agreement, for debt securities, certificates of interest or certificates of
participation in debt securities, or other
forms of indebtedness as to which the
trustee is not, in the capacity of trustee,
the lender; or
(XI) representative in any other capacity that the Administrator, after providing public notice, determines to be similar to the capacities described in subclauses (I) through (X); and
(ii) does not include—
(I) a person that is acting as a fiduciary with respect to a trust or other fiduciary estate that was organized for the
primary purpose of, or is engaged in, actively carrying on a trade or business for
profit, unless the trust or other fiduciary
estate was created as part of, or to facilitate, 1 or more estate plans or because of
the incapacity of a natural person; or
(II) a person that acquires ownership
or control of a vessel or facility with the
objective purpose of avoiding liability of
the person or of any other person.
(B) Fiduciary capacity
The term ‘‘fiduciary capacity’’ means the
capacity of a person in holding title to a vessel or facility, or otherwise having control of

§ 9607

or an interest in the vessel or facility, pursuant to the exercise of the responsibilities of
the person as a fiduciary.
(6) Savings clause
Nothing in this subsection—
(A) affects the rights or immunities or
other defenses that are available under this
chapter or other law that is applicable to a
person subject to this subsection; or
(B) creates any liability for a person or a
private right of action against a fiduciary or
any other person.
(7) No effect on certain persons
Nothing in this subsection applies to a person if the person—
(A)(i) acts in a capacity other than that of
a fiduciary or in a beneficiary capacity; and
(ii) in that capacity, directly or indirectly
benefits from a trust or fiduciary relationship; or
(B)(i) is a beneficiary and a fiduciary with
respect to the same fiduciary estate; and
(ii) as a fiduciary, receives benefits that
exceed customary or reasonable compensation, and incidental benefits, permitted
under other applicable law.
(8) Limitation
This subsection does not preclude a claim
under this chapter against—
(A) the assets of the estate or trust administered by the fiduciary; or
(B) a nonemployee agent or independent
contractor retained by a fiduciary.
(o) De micromis exemption
(1) In general
Except as provided in paragraph (2), a person
shall not be liable, with respect to response
costs at a facility on the National Priorities
List, under this chapter if liability is based
solely on paragraph (3) or (4) of subsection (a)
of this section, and the person, except as provided in paragraph (4) of this subsection, can
demonstrate that—
(A) the total amount of the material containing hazardous substances that the person arranged for disposal or treatment of,
arranged with a transporter for transport for
disposal or treatment of, or accepted for
transport for disposal or treatment, at the
facility was less than 110 gallons of liquid
materials or less than 200 pounds of solid
materials (or such greater or lesser amounts
as the Administrator may determine by regulation); and
(B) all or part of the disposal, treatment,
or transport concerned occurred before April
1, 2001.
(2) Exceptions
Paragraph (1) shall not apply in a case in
which—
(A) the President determines that—
(i) the materials containing hazardous
substances referred to in paragraph (1)
have contributed significantly or could
contribute significantly, either individually or in the aggregate, to the cost of
the response action or natural resource
restoration with respect to the facility; or

§ 9607

TITLE 42—THE PUBLIC HEALTH AND WELFARE
(ii) the person has failed to comply with
an information request or administrative
subpoena issued by the President under
this chapter or has impeded or is impeding, through action or inaction, the performance of a response action or natural
resource restoration with respect to the facility; or

(B) a person has been convicted of a criminal violation for the conduct to which the
exemption would apply, and that conviction
has not been vitiated on appeal or otherwise.
(3) No judicial review
A determination by the President under
paragraph (2)(A) shall not be subject to judicial review.
(4) Nongovernmental third-party contribution
actions
In the case of a contribution action, with respect to response costs at a facility on the National Priorities List, brought by a party,
other than a Federal, State, or local government, under this chapter, the burden of proof
shall be on the party bringing the action to
demonstrate that the conditions described in
paragraph (1)(A) and (B) of this subsection are
not met.
(p) Municipal solid waste exemption
(1) In general
Except as provided in paragraph (2) of this
subsection, a person shall not be liable, with
respect to response costs at a facility on the
National Priorities List, under paragraph (3)
of subsection (a) of this section for municipal
solid waste disposed of at a facility if the person, except as provided in paragraph (5) of this
subsection, can demonstrate that the person
is—
(A) an owner, operator, or lessee of residential property from which all of the person’s municipal solid waste was generated
with respect to the facility;
(B) a business entity (including a parent,
subsidiary, or affiliate of the entity) that,
during its 3 taxable years preceding the date
of transmittal of written notification from
the President of its potential liability under
this section, employed on average not more
than 100 full-time individuals, or the equivalent thereof, and that is a small business
concern (within the meaning of the Small
Business Act (15 U.S.C. 631 et seq.)) from
which was generated all of the municipal
solid waste attributable to the entity with
respect to the facility; or
(C) an organization described in section
501(c)(3) of title 26 and exempt from tax
under section 501(a) of such title that, during
its taxable year preceding the date of transmittal of written notification from the
President of its potential liability under this
section, employed not more than 100 paid individuals at the location from which was
generated all of the municipal solid waste
attributable to the organization with respect
to the facility.
For purposes of this subsection, the term ‘‘affiliate’’ has the meaning of that term provided

Page 6846

in the definition of ‘‘small business concern’’
in regulations promulgated by the Small Business Administration in accordance with the
Small Business Act (15 U.S.C. 631 et seq.).
(2) Exception
Paragraph (1) shall not apply in a case in
which the President determines that—
(A) the municipal solid waste referred to
in paragraph (1) has contributed significantly or could contribute significantly, either individually or in the aggregate, to the
cost of the response action or natural resource restoration with respect to the facility;
(B) the person has failed to comply with an
information request or administrative subpoena issued by the President under this
chapter; or
(C) the person has impeded or is impeding,
through action or inaction, the performance
of a response action or natural resource restoration with respect to the facility.
(3) No judicial review
A determination by the President under
paragraph (2) shall not be subject to judicial
review.
(4) Definition of municipal solid waste
(A) In general
For purposes of this subsection, the term
‘‘municipal solid waste’’ means waste material—
(i) generated by a household (including a
single or multifamily residence); and
(ii) generated by a commercial, industrial, or institutional entity, to the extent
that the waste material—
(I) is essentially the same as waste
normally generated by a household;
(II) is collected and disposed of with
other municipal solid waste as part of
normal municipal solid waste collection
services; and
(III) contains a relative quantity of
hazardous substances no greater than
the relative quantity of hazardous substances contained in waste material generated by a typical single-family household.
(B) Examples
Examples of municipal solid waste under
subparagraph (A) include food and yard
waste, paper, clothing, appliances, consumer
product packaging, disposable diapers, office
supplies, cosmetics, glass and metal food
containers, elementary or secondary school
science laboratory waste, and household hazardous waste.
(C) Exclusions
The term ‘‘municipal solid waste’’ does not
include—
(i) combustion ash generated by resource
recovery facilities or municipal incinerators; or
(ii) waste material from manufacturing
or processing operations (including pollution control operations) that is not essentially the same as waste normally generated by households.

Page 6847

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(5) Burden of proof
In the case of an action, with respect to response costs at a facility on the National Priorities List, brought under this section or section 9613 of this title by—
(A) a party, other than a Federal, State, or
local government, with respect to municipal
solid waste disposed of on or after April 1,
2001; or
(B) any party with respect to municipal
solid waste disposed of before April 1, 2001,
the burden of proof shall be on the party
bringing the action to demonstrate that the
conditions described in paragraphs (1) and (4)
for exemption for entities and organizations
described in paragraph (1)(B) and (C) are not
met.
(6) Certain actions not permitted
No contribution action may be brought by a
party, other than a Federal, State, or local
government, under this chapter with respect
to circumstances described in paragraph
(1)(A).
(7) Costs and fees
A nongovernmental entity that commences,
after January 11, 2002, a contribution action
under this chapter shall be liable to the defendant for all reasonable costs of defending
the action, including all reasonable attorney’s
fees and expert witness fees, if the defendant is
not liable for contribution based on an exemption under this subsection or subsection (o) of
this section.
(q) Contiguous properties
(1) Not considered to be an owner or operator
(A) In general
A person that owns real property that is
contiguous to or otherwise similarly situated with respect to, and that is or may be
contaminated by a release or threatened release of a hazardous substance from, real
property that is not owned by that person
shall not be considered to be an owner or operator of a vessel or facility under paragraph
(1) or (2) of subsection (a) of this section
solely by reason of the contamination if—
(i) the person did not cause, contribute,
or consent to the release or threatened release;
(ii) the person is not—
(I) potentially liable, or affiliated with
any other person that is potentially liable, for response costs at a facility
through any direct or indirect familial
relationship or any contractual, corporate, or financial relationship (other
than a contractual, corporate, or financial relationship that is created by a
contract for the sale of goods or services); or
(II) the result of a reorganization of a
business entity that was potentially liable;
(iii) the person takes reasonable steps
to—
(I) stop any continuing release;
(II) prevent any threatened future release; and

§ 9607

(III) prevent or limit human, environmental, or natural resource exposure to
any hazardous substance released on or
from property owned by that person;
(iv) the person provides full cooperation,
assistance, and access to persons that are
authorized to conduct response actions or
natural resource restoration at the vessel
or facility from which there has been a release or threatened release (including the
cooperation and access necessary for the
installation, integrity, operation, and
maintenance of any complete or partial response action or natural resource restoration at the vessel or facility);
(v) the person—
(I) is in compliance with any land use
restrictions established or relied on in
connection with the response action at
the facility; and
(II) does not impede the effectiveness
or integrity of any institutional control
employed in connection with a response
action;
(vi) the person is in compliance with any
request for information or administrative
subpoena issued by the President under
this chapter;
(vii) the person provides all legally required notices with respect to the discovery or release of any hazardous substances
at the facility; and
(viii) at the time at which the person acquired the property, the person—
(I) conducted all appropriate inquiry
within the meaning of section 9601(35)(B)
of this title with respect to the property;
and
(II) did not know or have reason to
know that the property was or could be
contaminated by a release or threatened
release of one or more hazardous substances from other real property not
owned or operated by the person.
(B) Demonstration
To qualify as a person described in subparagraph (A), a person must establish by a
preponderance of the evidence that the conditions in clauses (i) through (viii) of subparagraph (A) have been met.
(C) Bona fide prospective purchaser
Any person that does not qualify as a person described in this paragraph because the
person had, or had reason to have, knowledge specified in subparagraph (A)(viii) at
the time of acquisition of the real property
may qualify as a bona fide prospective purchaser under section 9601(40) of this title if
the person is otherwise described in that section.
(D) Ground water
With respect to a hazardous substance
from one or more sources that are not on the
property of a person that is a contiguous
property owner that enters ground water beneath the property of the person solely as a
result of subsurface migration in an aquifer,
subparagraph (A)(iii) shall not require the

§ 9607

TITLE 42—THE PUBLIC HEALTH AND WELFARE

person to conduct ground water investigations or to install ground water remediation
systems, except in accordance with the policy of the Environmental Protection Agency
concerning owners of property containing
contaminated aquifers, dated May 24, 1995.
(2) Effect of law
With respect to a person described in this
subsection, nothing in this subsection—
(A) limits any defense to liability that
may be available to the person under any
other provision of law; or
(B) imposes liability on the person that is
not otherwise imposed by subsection (a) of
this section.
(3) Assurances
The Administrator may—
(A) issue an assurance that no enforcement
action under this chapter will be initiated
against a person described in paragraph (1);
and
(B) grant a person described in paragraph
(1) protection against a cost recovery or contribution action under section 9613(f) of this
title.
(r) Prospective purchaser and windfall lien
(1) Limitation on liability
Notwithstanding subsection (a)(1) of this
section, a bona fide prospective purchaser
whose potential liability for a release or
threatened release is based solely on the purchaser’s being considered to be an owner or operator of a facility shall not be liable as long
as the bona fide prospective purchaser does
not impede the performance of a response action or natural resource restoration.
(2) Lien
If there are unrecovered response costs incurred by the United States at a facility for
which an owner of the facility is not liable by
reason of paragraph (1), and if each of the conditions described in paragraph (3) is met, the
United States shall have a lien on the facility,
or may by agreement with the owner, obtain
from the owner a lien on any other property or
other assurance of payment satisfactory to the
Administrator, for the unrecovered response
costs.
(3) Conditions
The conditions referred to in paragraph (2)
are the following:
(A) Response action
A response action for which there are unrecovered costs of the United States is carried out at the facility.
(B) Fair market value
The response action increases the fair
market value of the facility above the fair
market value of the facility that existed before the response action was initiated.
(4) Amount; duration
A lien under paragraph (2)—
(A) shall be in an amount not to exceed the
increase in fair market value of the property
attributable to the response action at the

Page 6848

time of a sale or other disposition of the
property;
(B) shall arise at the time at which costs
are first incurred by the United States with
respect to a response action at the facility;
(C) shall be subject to the requirements of
subsection (l)(3) of this section; and
(D) shall continue until the earlier of—
(i) satisfaction of the lien by sale or
other means; or
(ii) notwithstanding any statute of limitations under section 9613 of this title, recovery of all response costs incurred at the
facility.
(Pub. L. 96–510, title I, § 107, Dec. 11, 1980, 94 Stat.
2781; Pub. L. 99–499, title I, §§ 107(a)–(d)(2), (e), (f),
127(b), (e), title II, §§ 201, 207(c), Oct. 17, 1986, 100
Stat. 1628–1630, 1692, 1693, 1705; Pub. L. 99–514, § 2,
Oct. 22, 1986, 100 Stat. 2095; Pub. L. 103–429,
§ 7(e)(2), Oct. 31, 1994, 108 Stat. 4390; Pub. L.
104–208, div. A, title II, § 2502(a), Sept. 30, 1996, 110
Stat. 3009–462; Pub. L. 104–287, § 6(j)(2), Oct. 11,
1996, 110 Stat. 3400; Pub. L. 107–118, title I,
§ 102(a), title II, §§ 221, 222(b), Jan. 11, 2002, 115
Stat. 2356, 2368, 2371.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2767, known as the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
which is classified principally to this chapter. For complete classification of this Act to the Code, see Short
Title note set out under section 9601 of this title and
Tables.
Such amendments, referred to in the last sentence of
subsec. (a), probably means the amendments made by
Pub. L. 99–499, Oct. 17, 1986, 100 Stat. 1613, known as the
‘‘Superfund Amendments and Reauthorization Act of
1986’’. For complete classification of this Act to the
Code, see Short Title of 1986 Amendment note set out
under section 9601 of this title and Tables.
Act of March 3, 1851 (46 U.S.C. 183ff), referred to in
subsec. (h), is act Mar. 3, 1851, ch. 43, 9 Stat. 635, which
was incorporated into the Revised Statutes as R.S.
§§ 4282, 4283, 4284 to 4287 and 4289, which were classified
to sections 182, 183, and 184 to 188 of the former Appendix to Title 46, Shipping, prior to being repealed and restated in chapter 305 of Title 46 by Pub. L. 109–304,
§§ 6(c), 19, Oct. 6, 2006, 120 Stat. 1509, 1710. For disposition of sections of the former Appendix to Title 46, see
Disposition Table preceding section 101 of Title 46.
The Federal Insecticide, Fungicide, and Rodenticide
Act, referred to in subsec. (i), is act June 25, 1947, ch.
125, as amended generally by Pub. L. 92–516, Oct. 21,
1972, 86 Stat. 973, which is classified generally to subchapter II (§ 136 et seq.) of chapter 6 of Title 7, Agriculture. For complete classification of this Act to the
Code, see Short Title note set out under section 136 of
Title 7 and Tables.
The Solid Waste Disposal Act, referred to in subsec.
(k)(1), (3), (6)(E)(i), is title II of Pub. L. 89–272, Oct. 20,
1965, 79 Stat. 997, as amended generally by Pub. L.
94–580, § 2, Oct. 21, 1976, 90 Stat. 2795. Subtitles C and I
of the Solid Waste Disposal Act are classified generally
to subchapters III (§ 6921 et seq.) and IX (§ 6991 et seq.),
respectively, of chapter 82 of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 6901 of this title and Tables.
Section 9641 of this title, referred to in subsec. (k),
was repealed by Pub. L. 99–499, title V, § 514(b), Oct. 17,
1986, 100 Stat. 1767.
Subchapter II of this chapter, referred to in subsec.
(k)(4)(A) and (C), was in the original ‘‘title II of this
Act’’, meaning title II of Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2796, known as the Hazardous Substance Response

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

Revenue Act of 1980, which enacted subchapter II of
this chapter and sections 4611, 4612, 4661, 4662, 4681, and
4682 of Title 26, Internal Revenue Code. Sections 221 to
223 and 232 of Pub. L. 96–510, which were classified to
sections 9631 to 9633 and 9641 of this title, comprising
subchapter II of this chapter, were repealed by Pub. L.
99–499, title V, §§ 514(b), 517(c)(1), Oct. 17, 1986, 100 Stat.
1767, 1774. For complete classification of title II to the
Code, see Short Title of 1980 Amendment note set out
under section 1 of Title 26 and Tables.
The Hazardous and Solid Waste Amendments of 1984,
referred to in subsec. (k)(6)(A), (E), is Pub. L. 98–616,
Nov. 8, 1984, 98 Stat. 3221. For complete classification of
this Act to the Code, see Short Title of 1984 Amendment note set out under section 6901 of this title and
Tables.
The Small Business Act, referred to in subsec. (p)(1),
is Pub. L. 85–536, § 2(1 et seq.), July 18, 1958, 72 Stat. 384,
which is classified generally to chapter 14A (§ 631 et
seq.) of Title 15, Commerce and Trade. For complete
classification of this Act to the Code, see Short Title
note set out under section 631 of Title 15 and Tables.
AMENDMENTS
2002—Subsecs. (o), (p). Pub. L. 107–118, § 102(a), added
subsecs. (o) and (p).
Subsec. (q). Pub. L. 107–118, § 221, added subsec. (q).
Subsec. (r). Pub. L. 107–118, § 222(b), added subsec. (r).
1996—Subsec. (c)(1)(C). Pub. L. 104–287 substituted
‘‘section 60101(a) of title 49’’ for ‘‘the Hazardous Liquid
Pipeline Safety Act of 1979’’.
Subsec. (n). Pub. L. 104–208 added subsec. (n).
1994—Subsec. (c)(1)(C). Pub. L. 103–429 substituted
‘‘hazardous liquid pipeline facility’’ for ‘‘pipeline’’.
1986—Subsec. (a). Pub. L. 99–514, in penultimate sentence, substituted ‘‘Internal Revenue Code of 1986’’ for
‘‘Internal Revenue Code of 1954’’, which for purposes of
codification was translated as ‘‘title 26’’ thus requiring
no change in text.
Pub. L. 99–499, § 107(b), inserted concluding provisions
relating to accrual and rate of interest on amounts recoverable under this section.
Subsec. (a)(1). Pub. L. 99–499, § 107(a), struck out
‘‘(otherwise subject to the jurisdiction of the United
States)’’ after ‘‘vessel’’.
Subsec. (a)(3). Pub. L. 99–499, § 127(b)(1), inserted ‘‘or
incineration vessel’’ after ‘‘facility’’.
Subsec. (a)(4). Pub. L. 99–499, §§ 107(b), 127(b)(2),
207(c)(1),
in
introductory
provisions,
inserted
‘‘, incineration vessels’’ after ‘‘vessels’’, in subpar. (A),
inserted ‘‘or an Indian tribe’’ after ‘‘State’’, and added
subpar. (D).
Subsec. (c)(1)(A). Pub. L. 99–499, § 127(b)(3), inserted
‘‘, other than an incineration vessel,’’ after ‘‘vessel’’.
Subsec. (c)(1)(B). Pub. L. 99–499, § 127(b)(4), inserted
‘‘other than an incineration vessel,’’ after ‘‘other vessel,’’.
Subsec. (c)(1)(D). Pub. L. 99–499, § 127(b)(5), inserted
‘‘any incineration vessel or’’ before ‘‘any facility’’.
Subsec. (d). Pub. L. 99–499, § 107(c), amended subsec.
(d) generally. Prior to amendment, subsec. (d) read as
follows: ‘‘No person shall be liable under this subchapter for damages as a result of actions taken or
omitted in the course of rendering care, assistance, or
advice in accordance with the national contingency
plan or at the direction of an onscene coordinator appointed under such plan, with respect to an incident
creating a danger to public health or welfare or the environment as a result of any release of a hazardous substance or the threat thereof. This subsection shall not
preclude liability for damages as the result of gross
negligence or intentional misconduct on the part of
such person. For the purposes of the preceding sentence, reckless, willful, or wanton misconduct shall
constitute gross negligence.’’
Subsec. (f)(1). Pub. L. 99–499, § 107(d)(1), designated existing provisions as par. (1) and added heading.
Pub. L. 99–499, § 207(c)(2)(A), inserted ‘‘and to any Indian tribe for natural resources belonging to, managed
by, controlled by, or appertaining to such tribe, or held

§ 9607

in trust for the benefit of such tribe, or belonging to a
member of such tribe if such resources are subject to a
trust restriction on alienation’’ after third reference to
‘‘State’’.
Pub. L. 99–499, § 207(c)(2)(B), inserted ‘‘or Indian tribe’’
after fourth reference to ‘‘State’’.
Pub. L. 99–499, § 207(c)(2)(C), inserted in first sentence
‘‘, so long as, in the case of damages to an Indian tribe
occurring pursuant to a Federal permit or license, the
issuance of that permit or license was not inconsistent
with the fiduciary duty of the United States with respect to such Indian tribe’’.
Pub. L. 99–499, § 107(d)(2), substituted ‘‘Sums recovered by the United States Government as trustee under
this subsection shall be retained by the trustee, without further appropriation, for use only to restore, replace, or acquire the equivalent of such natural resources. Sums recovered by a State as trustee under
this subsection shall be available for use only to restore, replace, or acquire the equivalent of such natural
resources by the State. The measure of damages in any
action under subparagraph (C) of subsection (a) of this
section shall not be limited by the sums which can be
used to restore or replace such resources. There shall
be no double recovery under this chapter for natural resource damages, including the costs of damage assessment or restoration, rehabilitation, or acquisition for
the same release and natural resource’’ for ‘‘Sums recovered shall be available for use to restore, rehabilitate, or acquire the equivalent of such natural resources by the appropriate agencies of the Federal Government or the State government, but the measure of
such damages shall not be limited by the sums which
can be used to restore or replace such resources’’.
Pub. L. 99–499, § 207(c)(2)(D), which directed the insertion of ‘‘or the Indian tribe’’ after ‘‘State government’’,
could not be executed because the prior amendment by
section 107(d)(2) of Pub. L. 99–499, struck out third sentence referring to ‘‘State government’’.
Subsec. (f)(2). Pub. L. 99–499, § 107(d)(1), added par. (2).
Subsec. (g). Pub. L. 99–499, § 107(e), amended subsec.
(g) generally. Prior to amendment, subsec. (g) read as
follows: ‘‘Each department, agency, or instrumentality
of the executive, legislative, and judicial branches of
the Federal Government shall be subject to, and comply with, this chapter in the same manner and to the
same extent, both procedurally and substantively, as
any nongovernmental entity, including liability under
this section.’’
Subsec. (h). Pub. L. 99–499, § 127(e), inserted ‘‘, under
maritime tort law,’’ after ‘‘with this section’’ and inserted ‘‘or the absence of any physical damage to the
proprietary interest of the claimant’’ before the period
at end.
Subsec. (i). Pub. L. 99–499, § 207(c)(3), inserted ‘‘or Indian tribe’’ after ‘‘State’’.
Subsec. (j). Pub. L. 99–499, § 207(c)(4), inserted ‘‘or Indian tribe’’ after first reference to ‘‘State’’.
Subsec. (k)(5), (6). Pub. L. 99–499, § 201, added pars. (5)
and (6).
Subsec. (l). Pub. L. 99–499, § 107(f), added subsec. (l).
Subsec. (l)(3). Pub. L. 99–514 substituted ‘‘Internal
Revenue Code of 1986’’ for ‘‘Internal Revenue Code of
1954’’, which for purposes of codification was translated
as ‘‘title 26’’ thus requiring no change in text.
Subsec. (m). Pub. L. 99–499, § 107(f), added subsec. (m).
EFFECTIVE DATE OF 1996 AMENDMENT
Amendment by Pub. L. 104–208 applicable with respect to any claim that has not been finally adjudicated as of Sept. 30, 1996, see section 2505 of Pub. L.
104–208, set out as a note under section 6991b of this
title.
EFFECT ON CONCLUDED ACTIONS
Pub. L. 107–118, title I, § 103, Jan. 11, 2002, 115 Stat.
2360, provided that: ‘‘The amendments made by this
title [amending this section and section 9622 of this
title] shall not apply to or in any way affect any settle-

§ 9608

TITLE 42—THE PUBLIC HEALTH AND WELFARE

ment lodged in, or judgment issued by, a United States
District Court, or any administrative settlement or
order entered into or issued by the United States or
any State, before the date of the enactment of this Act
[Jan. 11, 2002].’’
CENTRAL HAZARDOUS MATERIALS FUND
Pub. L. 110–161, div. F, title I, Dec. 26, 2007, 121 Stat.
2116, as amended by Pub. L. 111–88, div. A, title I, Oct.
30, 2009, 123 Stat. 2924, provided in part: ‘‘That hereafter, notwithstanding 31 U.S.C. 3302, sums recovered
from or paid by a party including any fines or penalties, shall be credited to this account, to be available
until expended without further appropriation: Provided
further, That hereafter such sums recovered from or
paid by any party are not limited to monetary payments and may include stocks, bonds or other personal
or real property, which may be retained, liquidated, or
otherwise disposed of by the Secretary and which shall
be credited to this account.’’
Similar provisions were contained in the following
prior appropriation acts:
Pub. L. 109–54, title I, Aug. 2, 2005, 119 Stat. 518.
Pub. L. 108–447, div. E, title I, Dec. 8, 2004, 118 Stat.
3041.
Pub. L. 108–108, title I, § 310, Nov. 10, 2003, 117 Stat.
1243.
Pub. L. 108–7, div. F, title I, Feb. 20, 2003, 117 Stat. 218.
Pub. L. 107–63, title I, Nov. 5, 2001, 115 Stat. 416.
Pub. L. 106–291, title I, Oct. 11, 2000, 114 Stat. 923.
Pub. L. 106–113, div. B, § 1000(a)(3) [title I], Nov. 29,
1999, 113 Stat. 1535, 1501A–136.
Pub. L. 105–277, div. A, § 101(e) [title I], Oct. 21, 1998,
112 Stat. 2681–231, 2681–233.
Pub. L. 105–83, title I, Nov. 14, 1997, 111 Stat. 1544.
Pub. L. 104–208, div. A, title I, § 101(d) [title I], Sept.
30, 1996, 110 Stat. 3009–181, 3009–182.
Pub. L. 104–134, title I, § 101(c) [title I], Apr. 26, 1996,
110 Stat. 1321–156, 1321–157; renumbered title I, Pub. L.
104–140, § 1(a), May 2, 1996, 110 Stat. 1327.
Pub. L. 103–332, title I, Sept. 30, 1994, 108 Stat. 2500.
RECOVERY OF COSTS
Pub. L. 104–303, title II, § 209, Oct. 12, 1996, 110 Stat.
3681, provided that: ‘‘Amounts recovered under section
107 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9607)
for any response action taken by the Secretary in support of the civil works program of the Department of
the Army and any other amounts recovered by the Secretary from a contractor, insurer, surety, or other person to reimburse the Department of the Army for any
expenditure for environmental response activities in
support of the Army civil works program shall be credited to the appropriate trust fund account from which
the cost of such response action has been paid or will
be charged.’’
COORDINATION OF TITLES I TO IV OF PUB. L. 99–499
Any provision of titles I to IV of Pub. L. 99–499, imposing any tax, premium, or fee; establishing any trust
fund; or authorizing expenditures from any trust fund,
to have no force or effect, see section 531 of Pub. L.
99–499, set out as a note under section 1 of Title 26, Internal Revenue Code.

§ 9608. Financial responsibility
(a) Establishment and maintenance by owner or
operator of vessel; amount; failure to obtain
certification of compliance
(1) The owner or operator of each vessel (except a nonself-propelled barge that does not
carry hazardous substances as cargo) over three
hundred gross tons that uses any port or place
in the United States or the navigable waters or
any offshore facility, shall establish and maintain, in accordance with regulations promul-

Page 6850

gated by the President, evidence of financial responsibility of $300 per gross ton (or for a vessel
carrying hazardous substances as cargo, or
$5,000,000, whichever is greater) to cover the liability prescribed under paragraph (1) of section
9607(a) of this title. Financial responsibility may
be established by any one, or any combination,
of the following: insurance, guarantee, surety
bond, or qualification as a self-insurer. Any
bond filed shall be issued by a bonding company
authorized to do business in the United States.
In cases where an owner or operator owns, operates, or charters more than one vessel subject to
this subsection, evidence of financial responsibility need be established only to meet the
maximum liability applicable to the largest of
such vessels.
(2) The Secretary of the Treasury shall withhold or revoke the clearance required by section
60105 of title 46 of any vessel subject to this subsection that does not have certification furnished by the President that the financial responsibility provisions of paragraph (1) of this
subsection have been complied with.
(3) The Secretary of Transportation, in accordance with regulations issued by him, shall (A)
deny entry to any port or place in the United
States or navigable waters to, and (B) detain at
the port or place in the United States from
which it is about to depart for any other port or
place in the United States, any vessel subject to
this subsection that, upon request, does not
produce certification furnished by the President
that the financial responsibility provisions of
paragraph (1) of this subsection have been complied with.
(4) In addition to the financial responsibility
provisions of paragraph (1) of this subsection,
the President shall require additional evidence
of financial responsibility for incineration vessels in such amounts, and to cover such liabilities recognized by law, as the President deems
appropriate, taking into account the potential
risks posed by incineration and transport for incineration, and any other factors deemed relevant.
(b) Establishment and maintenance by owner or
operator of production, etc., facilities;
amount; adjustment; consolidated form of responsibility; coverage of motor carriers
(1) Beginning not earlier than five years after
December 11, 1980, the President shall promulgate requirements (for facilities in addition to
those under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.] and other Federal law) that classes of facilities establish and
maintain evidence of financial responsibility
consistent with the degree and duration of risk
associated with the production, transportation,
treatment, storage, or disposal of hazardous substances. Not later than three years after December 11, 1980, the President shall identify those
classes for which requirements will be first developed and publish notice of such identification
in the Federal Register. Priority in the development of such requirements shall be accorded to
those classes of facilities, owners, and operators
which the President determines present the
highest level of risk of injury.
(2) The level of financial responsibility shall
be initially established, and, when necessary,

Page 6851

TITLE 42—THE PUBLIC HEALTH AND WELFARE

adjusted to protect against the level of risk
which the President in his discretion believes is
appropriate based on the payment experience of
the Fund, commercial insurers, courts settlements and judgments, and voluntary claims satisfaction. To the maximum extent practicable,
the President shall cooperate with and seek the
advice of the commercial insurance industry in
developing financial responsibility requirements. Financial responsibility may be established by any one, or any combination, of the
following: insurance, guarantee, surety bond,
letter of credit, or qualification as a self-insurer.
In promulgating requirements under this section, the President is authorized to specify policy or other contractual terms, conditions, or
defenses which are necessary, or which are unacceptable, in establishing such evidence of financial responsibility in order to effectuate the purposes of this chapter.
(3) Regulations promulgated under this subsection shall incrementally impose financial responsibility requirements as quickly as can reasonably be achieved but in no event more than
4 years after the date of promulgation. Where
possible, the level of financial responsibility
which the President believes appropriate as a
final requirement shall be achieved through incremental, annual increases in the requirements.
(4) Where a facility is owned or operated by
more than one person, evidence of financial responsibility covering the facility may be established and maintained by one of the owners or
operators, or, in consolidated form, by or on behalf of two or more owners or operators. When
evidence of financial responsibility is established in a consolidated form, the proportional
share of each participant shall be shown. The
evidence shall be accompanied by a statement
authorizing the applicant to act for and in behalf of each participant in submitting and maintaining the evidence of financial responsibility.
(5) The requirements for evidence of financial
responsibility for motor carriers covered by this
chapter shall be determined under section 31139
of title 49.
(c) Direct action
(1) Releases from vessels
In the case of a release or threatened release
from a vessel, any claim authorized by section
9607 or 9611 of this title may be asserted directly against any guarantor providing evidence of financial responsibility for such vessel under subsection (a) of this section. In defending such a claim, the guarantor may invoke all rights and defenses which would be
available to the owner or operator under this
subchapter. The guarantor may also invoke
the defense that the incident was caused by
the willful misconduct of the owner or operator, but the guarantor may not invoke any
other defense that the guarantor might have
been entitled to invoke in a proceeding
brought by the owner or operator against him.
(2) Releases from facilities
In the case of a release or threatened release
from a facility, any claim authorized by section 9607 or 9611 of this title may be asserted

§ 9608

directly against any guarantor providing evidence of financial responsibility for such facility under subsection (b) of this section, if the
person liable under section 9607 of this title is
in bankruptcy, reorganization, or arrangement pursuant to the Federal Bankruptcy
Code, or if, with reasonable diligence, jurisdiction in the Federal courts cannot be obtained
over a person liable under section 9607 of this
title who is likely to be solvent at the time of
judgment. In the case of any action pursuant
to this paragraph, the guarantor shall be entitled to invoke all rights and defenses which
would have been available to the person liable
under section 9607 of this title if any action
had been brought against such person by the
claimant and all rights and defenses which
would have been available to the guarantor if
an action had been brought against the guarantor by such person.
(d) Limitation of guarantor liability
(1) Total liability
The total liability of any guarantor in a direct action suit brought under this section
shall be limited to the aggregate amount of
the monetary limits of the policy of insurance,
guarantee, surety bond, letter of credit, or
similar instrument obtained from the guarantor by the person subject to liability under
section 9607 of this title for the purpose of satisfying the requirement for evidence of financial responsibility.
(2) Other liability
Nothing in this subsection shall be construed to limit any other State or Federal
statutory, contractual, or common law liability of a guarantor, including, but not limited
to, the liability of such guarantor for bad faith
either in negotiating or in failing to negotiate
the settlement of any claim. Nothing in this
subsection shall be construed, interpreted, or
applied to diminish the liability of any person
under section 9607 of this title or other applicable law.
(Pub. L. 96–510, title I, § 108, Dec. 11, 1980, 94 Stat.
2785; Pub. L. 99–499, title I, §§ 108, 127(c), Oct. 17,
1986, 100 Stat. 1631, 1692.)
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsec.
(b)(1), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat.
997, as amended generally by Pub. L. 94–580, § 2, Oct. 21,
1976, 90 Stat. 2795. Subtitle C of the Solid Waste Disposal Act is classified generally to subchapter III (§ 6921
et seq.) of chapter 82 of this title. For complete classification of this Act to the Code, see Short Title note
set out under section 6901 of this title and Tables.
This chapter, referred to in subsec. (b)(2), (5), was in
the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, which is classified principally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 9601 of this title
and Tables.
The Federal Bankruptcy Code, referred to in subsec.
(c)(2), probably means a reference to Title 11, Bankruptcy.
CODIFICATION
In subsec. (a)(2), ‘‘section 60105 of title 46’’ substituted
for ‘‘section 4197 of the Revised Statutes of the United

§ 9609

TITLE 42—THE PUBLIC HEALTH AND WELFARE

States’’ on authority of Pub. L. 109–304, § 18(c), Oct. 6,
2006, 120 Stat. 1709, which Act enacted section 60105 of
Title 46, Shipping.
In subsec. (b)(5), ‘‘section 31139 of title 49’’ substituted
for ‘‘section 30 of the Motor Carrier Act of 1980, Public
Law 96–296’’ on authority of Pub. L. 103–272, § 6(b), July
5, 1994, 108 Stat. 1378, the first section of which enacted
subtitles II, III, and V to X of Title 49, Transportation.
AMENDMENTS
1986—Subsec. (a)(1). Pub. L. 99–499, § 127(c)(1), inserted
‘‘to cover the liability prescribed under paragraph (1) of
section 9607(a) of this title’’ after ‘‘whichever is greater)’’.
Subsec. (a)(4). Pub. L. 99–499, § 127(c)(2), added par. (4).
Subsec. (b)(2). Pub. L. 99–499, § 108(a), inserted provisions relating to evidence of financial responsibility
and authority of the President regarding establishment
of that evidence.
Subsec. (b)(3). Pub. L. 99–499, § 108(b), substituted ‘‘as
quickly as can reasonably be achieved but in no event
more than 4 years’’ for ‘‘over a period of not less than
three and no more than six years’’.
Subsec. (c). Pub. L. 99–499, § 108(c), amended subsec.
(c) generally. Prior to amendment, subsec. (c) read as
follows: ‘‘Any claim authorized by section 9607 or 9611
of this title may be asserted directly against any guarantor providing evidence of financial responsibility as
required under this section. In defending such a claim,
the guarantor may invoke all rights and defenses which
would be available to the owner or operator under this
subchapter. The guarantor may also invoke the defense
that the incident was caused by the willful misconduct
of the owner or operator, but such guarantor may not
invoke any other defense that such guarantor might
have been entitled to invoke in a proceeding brought by
the owner or operator against him.’’
Subsec. (d). Pub. L. 99–499, § 108(c), amended subsec.
(d) generally. Prior to amendment, subsec. (d) read as
follows: ‘‘Any guarantor acting in good faith against
which claims under this chapter are asserted as a guarantor shall be liable under section 9607 of this title or
section 9612(c) of this title only up to the monetary
limits of the policy of insurance or indemnity contract
such guarantor has undertaken or of the guaranty of
other evidence of financial responsibility furnished
under this section, and only to the extent that liability
is not excluded by restrictive endorsement: Provided,
That this subsection shall not alter the liability of any
person under section 9607 of this title.’’

§ 9609. Civil penalties and awards
(a) Class I administrative penalty
(1) Violations
A civil penalty of not more than $25,000 per
violation may be assessed by the President in
the case of any of the following—
(A) A violation of the requirements of section 9603(a) or (b) of this title (relating to
notice).
(B) A violation of the requirements of section 9603(d)(2) of this title (relating to destruction of records, etc.).
(C) A violation of the requirements of section 9608 of this title (relating to financial
responsibility, etc.), the regulations issued
under section 9608 of this title, or with any
denial or detention order under section 9608
of this title.
(D) A violation of an order under section
9622(d)(3) of this title (relating to settlement
agreements for action under section 9604(b)
of this title).
(E) Any failure or refusal referred to in
section 9622(l) of this title (relating to viola-

Page 6852

tions of administrative orders, consent decrees, or agreements under section 9620 of
this title).
(2) Notice and hearings
No civil penalty may be assessed under this
subsection unless the person accused of the
violation is given notice and opportunity for a
hearing with respect to the violation.
(3) Determining amount
In determining the amount of any penalty
assessed pursuant to this subsection, the
President shall take into account the nature,
circumstances, extent and gravity of the violation or violations and, with respect to the
violator, ability to pay, any prior history of
such violations, the degree of culpability, economic benefit or savings (if any) resulting
from the violation, and such other matters as
justice may require.
(4) Review
Any person against whom a civil penalty is
assessed under this subsection may obtain review thereof in the appropriate district court
of the United States by filing a notice of appeal in such court within 30 days from the date
of such order and by simultaneously sending a
copy of such notice by certified mail to the
President. The President shall promptly file in
such court a certified copy of the record upon
which such violation was found or such penalty imposed. If any person fails to pay an assessment of a civil penalty after it has become
a final and unappealable order or after the appropriate court has entered final judgment in
favor of the United States, the President may
request the Attorney General of the United
States to institute a civil action in an appropriate district court of the United States to
collect the penalty, and such court shall have
jurisdiction to hear and decide any such action. In hearing such action, the court shall
have authority to review the violation and the
assessment of the civil penalty on the record.
(5) Subpoenas
The President may issue subpoenas for the
attendance and testimony of witnesses and the
production of relevant papers, books, or documents in connection with hearings under this
subsection. In case of contumacy or refusal to
obey a subpoena issued pursuant to this paragraph and served upon any person, the district
court of the United States for any district in
which such person is found, resides, or transacts business, upon application by the United
States and after notice to such person, shall
have jurisdiction to issue an order requiring
such person to appear and give testimony before the administrative law judge or to appear
and produce documents before the administrative law judge, or both, and any failure to obey
such order of the court may be punished by
such court as a contempt thereof.
(b) Class II administrative penalty
A civil penalty of not more than $25,000 per
day for each day during which the violation continues may be assessed by the President in the
case of any of the following—
(1) A violation of the notice requirements of
section 9603(a) or (b) of this title.

Page 6853

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(2) A violation of section 9603(d)(2) of this
title (relating to destruction of records, etc.).
(3) A violation of the requirements of section
9608 of this title (relating to financial responsibility, etc.), the regulations issued under
section 9608 of this title, or with any denial or
detention order under section 9608 of this title.
(4) A violation of an order under section
9622(d)(3) of this title (relating to settlement
agreements for action under section 9604(b) of
this title).
(5) Any failure or refusal referred to in section 9622(l) of this title (relating to violations
of administrative orders, consent decrees, or
agreements under section 9620 of this title).
In the case of a second or subsequent violation
the amount of such penalty may be not more
than $75,000 for each day during which the violation continues. Any civil penalty under this subsection shall be assessed and collected in the
same manner, and subject to the same provisions, as in the case of civil penalties assessed
and collected after notice and opportunity for
hearing on the record in accordance with section
554 of title 5. In any proceeding for the assessment of a civil penalty under this subsection the
President may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents
and may promulgate rules for discovery procedures. Any person who requested a hearing with
respect to a civil penalty under this subsection
and who is aggrieved by an order assessing the
civil penalty may file a petition for judicial review of such order with the United States Court
of Appeals for the District of Columbia Circuit
or for any other circuit in which such person resides or transacts business. Such a petition may
only be filed within the 30-day period beginning
on the date the order making such assessment
was issued.
(c) Judicial assessment
The President may bring an action in the
United States district court for the appropriate
district to assess and collect a penalty of not
more than $25,000 per day for each day during
which the violation (or failure or refusal) continues in the case of any of the following—
(1) A violation of the notice requirements of
section 9603(a) or (b) of this title.
(2) A violation of section 9603(d)(2) of this
title (relating to destruction of records, etc.).
(3) A violation of the requirements of section
9608 of this title (relating to financial responsibility, etc.), the regulations issued under
section 9608 of this title, or with any denial or
detention order under section 9608 of this title.
(4) A violation of an order under section
9622(d)(3) of this title (relating to settlement
agreements for action under section 9604(b) of
this title).
(5) Any failure or refusal referred to in section 9622(l) of this title (relating to violations
of administrative orders, consent decrees, or
agreements under section 9620 of this title).
In the case of a second or subsequent violation
(or failure or refusal), the amount of such penalty may be not more than $75,000 for each day
during which the violation (or failure or refusal)

§ 9609

continues. For additional provisions providing
for judicial assessment of civil penalties for failure to comply with a request or order under section 9604(e) of this title (relating to information
gathering and access authorities), see section
9604(e) of this title.
(d) Awards
The President may pay an award of up to
$10,000 to any individual who provides information leading to the arrest and conviction of any
person for a violation subject to a criminal penalty under this chapter, including any violation
of section 9603 of this title and any other violation referred to in this section. The President
shall, by regulation, prescribe criteria for such
an award and may pay any award under this
subsection from the Fund, as provided in section
9611 of this title.
(e) Procurement procedures
Notwithstanding any other provision of law,
any executive agency may use competitive procedures or procedures other than competitive
procedures to procure the services of experts for
use in preparing or prosecuting a civil or criminal action under this chapter, whether or not
the expert is expected to testify at trial. The executive agency need not provide any written justification for the use of procedures other than
competitive procedures when procuring such expert services under this chapter and need not
furnish for publication in the Commerce Business Daily or otherwise any notice of solicitation or synopsis with respect to such procurement.
(f) Savings clause
Action taken by the President pursuant to
this section shall not affect or limit the President’s authority to enforce any provisions of
this chapter.
(Pub. L. 96–510, title I, § 109, Dec. 11, 1980, 94 Stat.
2787; Pub. L. 99–499, title I, § 109(c), Oct. 17, 1986,
100 Stat. 1633.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (d) to (f), was in
the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, which is classified principally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 9601 of this title
and Tables.
AMENDMENTS
1986—Pub. L. 99–499 amended section generally. Prior
to amendment, section read as follows: ‘‘Any person
who, after notice and an opportunity for a hearing, is
found to have failed to comply with the requirements
of section 9608 of this title, the regulations issued
thereunder, or with any denial or detention order shall
be liable to the United States for a civil penalty, not to
exceed $10,000 for each day of violation.’’
COORDINATION OF TITLES I TO IV OF PUB. L. 99–499
Any provision of titles I to IV of Pub. L. 99–499, imposing any tax, premium, or fee; establishing any trust
fund; or authorizing expenditures from any trust fund,
to have no force or effect, see section 531 of Pub. L.
99–499, set out as a note under section 1 of Title 26, Internal Revenue Code.

§ 9610

TITLE 42—THE PUBLIC HEALTH AND WELFARE

§ 9610. Employee protection
(a) Activities of employee subject to protection
No person shall fire or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason
of the fact that such employee or representative
has provided information to a State or to the
Federal Government, filed, instituted, or caused
to be filed or instituted any proceeding under
this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of
this chapter.
(b) Administrative grievance procedure in cases
of alleged violations
Any employee or a representative of employees who believes that he has been fired or otherwise discriminated against by any person in violation of subsection (a) of this section may,
within thirty days after such alleged violation
occurs, apply to the Secretary of Labor for a review of such firing or alleged discrimination. A
copy of the application shall be sent to such person, who shall be the respondent. Upon receipt
of such application, the Secretary of Labor shall
cause such investigation to be made as he deems
appropriate. Such investigation shall provide an
opportunity for a public hearing at the request
of any party to such review to enable the parties
to present information relating to such alleged
violation. The parties shall be given written notice of the time and place of the hearing at least
five days prior to the hearing. Any such hearing
shall be of record and shall be subject to section
554 of title 5. Upon receiving the report of such
investigation, the Secretary of Labor shall
make findings of fact. If he finds that such violation did occur, he shall issue a decision, incorporating an order therein and his findings, requiring the party committing such violation to
take such affirmative action to abate the violation as the Secretary of Labor deems appropriate, including, but not limited to, the rehiring or reinstatement of the employee or representative of employees to his former position
with compensation. If he finds that there was no
such violation, he shall issue an order denying
the application. Such order issued by the Secretary of Labor under this subparagraph shall be
subject to judicial review in the same manner as
orders and decisions are subject to judicial review under this chapter.
(c) Assessment of costs and expenses against violator subsequent to issuance of order of
abatement
Whenever an order is issued under this section
to abate such violation, at the request of the applicant a sum equal to the aggregate amount of
all costs and expenses (including the attorney’s
fees) determined by the Secretary of Labor to
have been reasonably incurred by the applicant
for, or in connection with, the institution and
prosecution of such proceedings, shall be assessed against the person committing such violation.
(d) Defenses
This section shall have no application to any
employee who acting without discretion from

Page 6854

his employer (or his agent) deliberately violates
any requirement of this chapter.
(e) Presidential evaluations of potential loss of
shifts of employment resulting from administration or enforcement of provisions; investigations; procedures applicable, etc.
The President shall conduct continuing evaluations of potential loss of shifts of employment
which may result from the administration or enforcement of the provisions of this chapter, including,
where
appropriate,
investigating
threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement. Any employee who is
discharged, or laid off, threatened with discharge or layoff, or otherwise discriminated
against by any person because of the alleged results of such administration or enforcement, or
any representative of such employee, may request the President to conduct a full investigation of the matter and, at the request of any
party, shall hold public hearings, require the
parties, including the employer involved, to
present information relating to the actual or potential effect of such administration or enforcement on employment and any alleged discharge,
layoff, or other discrimination, and the detailed
reasons or justification therefore.1 Any such
hearing shall be of record and shall be subject to
section 554 of title 5. Upon receiving the report
of such investigation, the President shall make
findings of fact as to the effect of such administration or enforcement on employment and on
the alleged discharge, layoff, or discrimination
and shall make such recommendations as he
deems appropriate. Such report, findings, and
recommendations shall be available to the public. Nothing in this subsection shall be construed to require or authorize the President or
any State to modify or withdraw any action,
standard, limitation, or any other requirement
of this chapter.
(Pub. L. 96–510, title I, § 110, Dec. 11, 1980, 94 Stat.
2787.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a), (b), (d), and
(e), was in the original ‘‘this Act’’, meaning Pub. L.
96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, which is classified principally to
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
9601 of this title and Tables.

§ 9611. Uses of Fund
(a) In general
For the purposes specified in this section there
is authorized to be appropriated from the Hazardous Substance Superfund established under
subchapter A of chapter 98 of title 26 not more
than $8,500,000,000 for the 5-year period beginning on October 17, 1986, and not more than
$5,100,000,000 for the period commencing October
1, 1991, and ending September 30, 1994, and such
sums shall remain available until expended. The
preceding sentence constitutes a specific authorization for the funds appropriated under title II
1 So

in original.

Page 6855

TITLE 42—THE PUBLIC HEALTH AND WELFARE

of Public Law 99-160 (relating to payment to the
Hazardous Substances Trust Fund). The President shall use the money in the Fund for the following purposes:
(1) Payment of governmental response costs
incurred pursuant to section 9604 of this title,
including costs incurred pursuant to the Intervention on the High Seas Act [33 U.S.C. 1471 et
seq.].
(2) Payment of any claim for necessary response costs incurred by any other person as a
result of carrying out the national contingency plan established under section 1321(c) 1
of title 33 and amended by section 9605 of this
title: Provided, however, That such costs must
be approved under said plan and certified by
the responsible Federal official.
(3) Payment of any claim authorized by subsection (b) of this section and finally decided
pursuant to section 9612 of this title, including
those costs set out in subsection 9612(c)(3) of
this title.
(4) Payment of costs specified under subsection (c) of this section.
(5) GRANTS FOR TECHNICAL ASSISTANCE.—The
cost of grants under section 9617(e) of this title
(relating to public participation grants for
technical assistance).
(6) LEAD CONTAMINATED SOIL.—Payment of
not to exceed $15,000,000 for the costs of a pilot
program for removal, decontamination, or
other action with respect to lead-contaminated soil in one to three different metropolitan areas.
The President shall not pay for any administrative costs or expenses out of the Fund unless
such costs and expenses are reasonably necessary for and incidental to the implementation
of this subchapter.
(b) Additional authorized purposes
(1) In general
Claims asserted and compensable but unsatisfied under provisions of section 1321 of
title 33, which are modified by section 304 of
this Act may be asserted against the Fund
under this subchapter; and other claims resulting from a release or threat of release of a
hazardous substance from a vessel or a facility
may be asserted against the Fund under this
subchapter for injury to, or destruction or loss
of, natural resources, including cost for damage assessment: Provided, however, That any
such claim may be asserted only by the President, as trustee, for natural resources over
which the United States has sovereign rights,
or natural resources within the territory or
the fishery conservation zone of the United
States to the extent they are managed or protected by the United States, or by any State
for natural resources within the boundary of
that State belonging to, managed by, controlled by, or appertaining to the State, or by
any Indian tribe or by the United States acting on behalf of any Indian tribe for natural
resources belonging to, managed by, controlled by, or appertaining to such tribe, or
held in trust for the benefit of such tribe, or
1 See

References in Text note below.

§ 9611

belonging to a member of such tribe if such resources are subject to a trust restriction on
alienation.
(2) Limitation on payment of natural resource
claims
(A) General requirements
No natural resource claim may be paid
from the Fund unless the President determines that the claimant has exhausted all
administrative and judicial remedies to recover the amount of such claim from persons
who may be liable under section 9607 of this
title.
(B) Definition
As used in this paragraph, the term ‘‘natural resource claim’’ means any claim for injury to, or destruction or loss of, natural resources. The term does not include any
claim for the costs of natural resource damage assessment.
(c) Peripheral matters and limitations
Uses of the Fund under subsection (a) of this
section include—
(1) The costs of assessing both short-term
and long-term injury to, destruction of, or loss
of any natural resources resulting from a release of a hazardous substance.
(2) The costs of Federal or State or Indian
tribe efforts in the restoration, rehabilitation,
or replacement or acquiring the equivalent of
any natural resources injured, destroyed, or
lost as a result of a release of a hazardous substance.
(3) Subject to such amounts as are provided
in appropriation Acts, the costs of a program
to identify, investigate, and take enforcement
and abatement action against releases of hazardous substances.
(4) Any costs incurred in accordance with
subsection (m) of this section (relating to
ATSDR) and section 9604(i) of this title, including the costs of epidemiologic and laboratory studies, health assessments, preparation
of toxicologic profiles, development and maintenance of a registry of persons exposed to
hazardous substances to allow long-term
health effect studies, and diagnostic services
not otherwise available to determine whether
persons in populations exposed to hazardous
substances in connection with a release or a
suspected release are suffering from long-latency diseases.
(5) Subject to such amounts as are provided
in appropriation Acts, the costs of providing
equipment and similar overhead, related to
the purposes of this chapter and section 1321 of
title 33, and needed to supplement equipment
and services available through contractors or
other non-Federal entities, and of establishing
and maintaining damage assessment capability, for any Federal agency involved in strike
forces, emergency task forces, or other response teams under the national contingency
plan.
(6) Subject to such amounts as are provided
in appropriation Acts, the costs of a program
to protect the health and safety of employees
involved in response to hazardous substance
releases. Such program shall be developed

§ 9611

TITLE 42—THE PUBLIC HEALTH AND WELFARE

jointly by the Environmental Protection
Agency, the Occupational Safety and Health
Administration, and the National Institute for
Occupational Safety and Health and shall include, but not be limited to, measures for
identifying and assessing hazards to which
persons engaged in removal, remedy, or other
response to hazardous substances may be exposed, methods to protect workers from such
hazards, and necessary regulatory and enforcement measures to assure adequate protection
of such employees.
(7) EVALUATION COSTS UNDER PETITION PROVISIONS OF SECTION 9605(d).—Costs incurred by the
President in evaluating facilities pursuant to
petitions under section 9605(d) of this title (relating to petitions for assessment of release).
COSTS
UNDER
SECTION
(8)
CONTRACT
9604(a)(1).—The costs of contracts or arrangements entered into under section 9604(a)(1) of
this title to oversee and review the conduct of
remedial investigations and feasibility studies
undertaken by persons other than the President and the costs of appropriate Federal and
State oversight of remedial activities at National Priorities List sites resulting from consent orders or settlement agreements.
(9) ACQUISITION COSTS UNDER SECTION 9604(j).—
The costs incurred by the President in acquiring real estate or interests in real estate under
section 9604(j) of this title (relating to acquisition of property).
(10) RESEARCH, DEVELOPMENT, AND DEMONSTRATION COSTS UNDER SECTION 9660.—The
cost of carrying out section 9660 of this title
(relating to research, development, and demonstration), except that the amounts available
for such purposes shall not exceed the
amounts specified in subsection (n) of this section.
(11) LOCAL GOVERNMENT REIMBURSEMENT.—
Reimbursements to local governments under
section 9623 of this title, except that during
the 8-fiscal year period beginning October 1,
1986, not more than 0.1 percent of the total
amount appropriated from the Fund may be
used for such reimbursements.
(12) WORKER TRAINING AND EDUCATION
GRANTS.—The costs of grants under section
9660a of this title for training and education of
workers to the extent that such costs do not
exceed $20,000,000 for each of the fiscal years
1987, 1988, 1989, 1990, 1991, 1992, 1993, and 1994.
(13) AWARDS UNDER SECTION 9609.—The costs
of any awards granted under section 9609(d) of
this title.
(14) LEAD POISONING STUDY.—The cost of carrying out the study under subsection (f) of section 118 of the Superfund Amendments and Reauthorization Act of 1986 (relating to lead poisoning in children).
(d) Additional limitations
(1) No money in the Fund may be used under
subsection (c)(1) and (2) of this section, nor for
the payment of any claim under subsection (b)
of this section, where the injury, destruction, or
loss of natural resources and the release of a
hazardous substance from which such damages
resulted have occurred wholly before December
11, 1980.

Page 6856

(2) No money in the Fund may be used for the
payment of any claim under subsection (b) of
this section where such expenses are associated
with injury or loss resulting from long-term exposure to ambient concentrations of air pollutants from multiple or diffuse sources.
(e) Funding requirements respecting moneys in
Fund; limitation on certain claims; Fund use
outside Federal property boundaries
(1) Claims against or presented to the Fund
shall not be valid or paid in excess of the total
money in the Fund at any one time. Such claims
become valid only when additional money is collected, appropriated, or otherwise added to the
Fund. Should the total claims outstanding at
any time exceed the current balance of the
Fund, the President shall pay such claims, to
the extent authorized under this section, in full
in the order in which they were finally determined.
(2) In any fiscal year, 85 percent of the money
credited to the Fund under subchapter II 1 of this
chapter shall be available only for the purposes
specified in paragraphs (1), (2), and (4) of subsection (a) of this section. No money in the Fund
may be used for the payment of any claim under
subsection (a)(3) or subsection (b) of this section
in any fiscal year for which the President determines that all of the Fund is needed for response
to threats to public health from releases or
threatened releases of hazardous substances.
(3) No money in the Fund shall be available for
remedial action, other than actions specified in
subsection (c) of this section, with respect to
federally owned facilities; except that money in
the Fund shall be available for the provision of
alternative water supplies (including the reimbursement of costs incurred by a municipality)
in any case involving groundwater contamination outside the boundaries of a federally owned
facility in which the federally owned facility is
not the only potentially responsible party.
(4) Paragraphs (1) and (4) of subsection (a) of
this section shall in the aggregate be subject to
such amounts as are provided in appropriation
Acts.
(f) Obligation of moneys by Federal officials; obligation of moneys or settlement of claims by
State officials or Indian tribe
The President is authorized to promulgate
regulations designating one or more Federal officials who may obligate money in the Fund in
accordance with this section or portions thereof.
The President is also authorized to delegate authority to obligate money in the Fund or to settle claims to officials of a State or Indian tribe
operating under a contract or cooperative agreement with the Federal Government pursuant to
section 9604(d) of this title.
(g) Notice to potential injured parties by owner
and operator of vessel or facility causing release of substance; rules and regulations
The President shall provide for the promulgation of rules and regulations with respect to the
notice to be provided to potential injured parties by an owner and operator of any vessel, or
facility from which a hazardous substance has
been released. Such rules and regulations shall
consider the scope and form of the notice which

Page 6857

TITLE 42—THE PUBLIC HEALTH AND WELFARE

would be appropriate to carry out the purposes
of this subchapter. Upon promulgation of such
rules and regulations, the owner and operator of
any vessel or facility from which a hazardous
substance has been released shall provide notice
in accordance with such rules and regulations.
With respect to releases from public vessels, the
President shall provide such notification as is
appropriate to potential injured parties. Until
the promulgation of such rules and regulations,
the owner and operator of any vessel or facility
from which a hazardous substance has been released shall provide reasonable notice to potential injured parties by publication in local newspapers serving the affected area.
(h) Repealed. Pub. L. 99–499, title I, § 111(c)(2),
Oct. 17, 1986, 100 Stat. 1643
(i) Restoration, etc., of natural resources
Except in a situation requiring action to avoid
an irreversible loss of natural resources or to
prevent or reduce any continuing danger to natural resources or similar need for emergency action, funds may not be used under this chapter
for the restoration, rehabilitation, or replacement or acquisition of the equivalent of any
natural resources until a plan for the use of such
funds for such purposes has been developed and
adopted by affected Federal agencies and the
Governor or Governors of any State having sustained damage to natural resources within its
borders, belonging to, managed by or appertaining to such State, and by the governing body of
any Indian tribe having sustained damage to
natural resources belonging to, managed by,
controlled by, or appertaining to such tribe, or
held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust restriction on
alienation, after adequate public notice and opportunity for hearing and consideration of all
public comment.
(j) Use of Post-closure Liability Fund
The President shall use the money in the Postclosure Liability Fund for any of the purposes
specified in subsection (a) of this section with
respect to a hazardous waste disposal facility for
which liability has transferred to such fund
under section 9607(k) of this title, and, in addition, for payment of any claim or appropriate
request for costs of response, damages, or other
compensation for injury or loss under section
9607 of this title or any other State or Federal
law, resulting from a release of a hazardous substance from such a facility.
(k) Inspector General
In each fiscal year, the Inspector General of
each department, agency, or instrumentality of
the United States which is carrying out any authority of this chapter shall conduct an annual
audit of all payments, obligations, reimbursements, or other uses of the Fund in the prior fiscal year, to assure that the Fund is being properly administered and that claims are being appropriately and expeditiously considered. The
audit shall include an examination of a sample
of agreements with States (in accordance with
the provisions of the Single Audit Act [31 U.S.C.
7501 et seq.]) carrying out response actions under

§ 9611

this subchapter and an examination of remedial
investigations and feasibility studies prepared
for remedial actions. The Inspector General
shall submit to the Congress an annual report
regarding the audit report required under this
subsection. The report shall contain such recommendations as the Inspector General deems appropriate. Each department, agency, or instrumentality of the United States shall cooperate
with its inspector general in carrying out this
subsection.
(l) Foreign claimants
To the extent that the provisions of this chapter permit, a foreign claimant may assert a
claim to the same extent that a United States
claimant may assert a claim if—
(1) the release of a hazardous substance occurred (A) in the navigable waters or (B) in or
on the territorial sea or adjacent shoreline of
a foreign country of which the claimant is a
resident;
(2) the claimant is not otherwise compensated for his loss;
(3) the hazardous substance was released
from a facility or from a vessel located adjacent to or within the navigable waters or was
discharged in connection with activities conducted under the Outer Continental Shelf
Lands Act, as amended (43 U.S.C. 1331 et seq.)
or the Deepwater Port Act of 1974, as amended
(33 U.S.C. 1501 et seq.); and
(4) recovery is authorized by a treaty or an
executive agreement between the United
States and foreign country involved, or if the
Secretary of State, in consultation with the
Attorney General and other appropriate officials, certifies that such country provides a
comparable remedy for United States claimants.
(m) Agency for Toxic Substances and Disease
Registry
There shall be directly available to the Agency for Toxic Substances and Disease Registry to
be used for the purpose of carrying out activities
described in subsection (c)(4) of this section and
section 9604(i) of this title not less than
$50,000,000 per fiscal year for each of fiscal years
1987 and 1988, not less than $55,000,000 for fiscal
year 1989, and not less than $60,000,000 per fiscal
year for each of fiscal years 1990, 1991, 1992, 1993,
and 1994. Any funds so made available which are
not obligated by the end of the fiscal year in
which made available shall be returned to the
Fund.
(n) Limitations on research, development, and
demonstration program
(1) Section 9660(b)
For each of the fiscal years 1987, 1988, 1989,
1990, 1991, 1992, 1993, and 1994, not more than
$20,000,000 of the amounts available in the
Fund may be used for the purposes of carrying
out the applied research, development, and
demonstration program for alternative or innovative technologies and training program
authorized under section 9660(b) of this title
(relating to research, development, and demonstration) other than basic research. Such
amounts shall remain available until expended.

§ 9611

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(2) Section 9660(a)
From the amounts available in the Fund,
not more than the following amounts may be
used for the purposes of section 9660(a) of this
title (relating to hazardous substance research, demonstration, and training activities):
(A) For the fiscal year 1987, $3,000,000.
(B) For the fiscal year 1988, $10,000,000.
(C) For the fiscal year 1989, $20,000,000.
(D) For the fiscal year 1990, $30,000,000.
(E) For each of the fiscal years 1991, 1992,
1993, and 1994, $35,000,000.
No more than 10 percent of such amounts shall
be used for training under section 9660(a) of
this title in any fiscal year.
(3) Section 9660(d)
For each of the fiscal years 1987, 1988, 1989,
1990, 1991, 1992, 1993, and 1994, not more than
$5,000,000 of the amounts available in the Fund
may be used for the purposes of section 9660(d)
of this title (relating to university hazardous
substance research centers).
(o) Notification procedures for limitations on
certain payments
Not later than 90 days after October 17, 1986,
the President shall develop and implement procedures to adequately notify, as soon as practicable after a site is included on the National
Priorities List, concerned local and State officials and other concerned persons of the limitations, set forth in subsection (a)(2) of this section, on the payment of claims for necessary response costs incurred with respect to such site.
(p) General revenue share of Superfund
(1) In general
The following sums are authorized to be appropriated, out of any money in the Treasury
not otherwise appropriated, to the Hazardous
Substance Superfund:
(A) For fiscal year 1987, $212,500,000.
(B) For fiscal year 1988, $212,500,000.
(C) For fiscal year 1989, $212,500,000.
(D) For fiscal year 1990, $212,500,000.
(E) For fiscal year 1991, $212,500,000.
(F) For fiscal year 1992, $212,500,000.
(G) For fiscal year 1993, $212,500,000.
(H) For fiscal year 1994, $212,500,000.
In addition there is authorized to be appropriated to the Hazardous Substance Superfund
for each fiscal year an amount equal to so
much of the aggregate amount authorized to
be appropriated under this subsection (and
paragraph (2) of section 9631(b) 1 of this title)
as has not been appropriated before the beginning of the fiscal year involved.
(2) Computation
The amounts authorized to be appropriated
under paragraph (1) of this subsection in a
given fiscal year shall be available only to the
extent that such amount exceeds the amount
determined by the Secretary under section
9507(b)(2) of title 26 for the prior fiscal year.
(Pub. L. 96–510, title I, § 111, Dec. 11, 1980, 94 Stat.
2788; Pub. L. 99–499, title I, § 111, title II, § 207(d),
Oct. 17, 1986, 100 Stat. 1642, 1706; Pub. L. 101–144,

Page 6858

title III, Nov. 9, 1989, 103 Stat. 857; Pub. L.
101–508, title VI, § 6301, Nov. 5, 1990, 104 Stat.
1388–319.)
REFERENCES IN TEXT
Title II of Public Law 99–160 (relating to payment to
the Hazardous Substances Trust Fund), referred to in
subsec. (a), is title II of Pub. L. 99–160, Nov. 25, 1985, 99
Stat. 914. Provisions of title II relating to the Hazardous Substance Response Trust Fund are not classified
to the Code. For complete classification of this Act to
the Code, see Tables.
The Intervention on the High Seas Act, referred to in
subsec. (a)(1), is Pub. L. 93–248, Feb. 5, 1974, 88 Stat. 8,
which is classified generally to chapter 28 (§ 1471 et seq.)
of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the Code, see Short
Title note set out under section 1471 of Title 33 and
Tables.
Section 1321(c) of title 33, referred to in subsec. (a)(2),
was amended generally by Pub. L. 101–380, title IV,
§ 4201(a), Aug. 18, 1990, 104 Stat. 523, and no longer contains provisions establishing a National Contingency
Plan. However, such provisions are contained in section
1321(d) of Title 33, Navigation and Navigable Waters.
Section 304 of this Act, referred to in subsec. (b), is
section 304 of Pub. L. 96–510, title III, Dec. 11, 1980, 94
Stat. 2809, which enacted section 9654 of this title and
amended section 1364 of Title 33.
Fishery conservation zone, referred to in subsec. (b),
probably means the fishery conservation zone established by section 1811 of Title 16, Conservation, which
as amended generally by Pub. L. 99–659, title I, § 101(b),
Nov. 14, 1986, 100 Stat. 3706, relates to United States
sovereign rights and fishery management authority
over fish within the exclusive economic zone as defined
in section 1802 of Title 16.
This chapter, referred to in subsecs. (c)(5), (i), (k), and
(l), was in the original ‘‘this Act’’, meaning Pub. L.
96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, which is classified principally to
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
9601 of this title and Tables.
Subsection (f) of section 118 of the Superfund Amendments and Reauthorization Act of 1986, referred to in
subsec. (c)(14), is section 118(f) of Pub. L. 99–499, title I,
Oct. 17, 1986, 100 Stat. 1657, which is not classified to the
Code.
Subchapter II of this chapter, referred to in subsec.
(e)(2), was in the original ‘‘title II of this Act’’, meaning title II of Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2796,
known as the Hazardous Substance Response Revenue
Act of 1980, which enacted subchapter II of this chapter
and sections 4611, 4612, 4661, 4662, 4681, and 4682 of Title
26, Internal Revenue Code. Sections 221 to 223 and 232 of
Pub. L. 96–510, which were classified to sections 9631 to
9633 and 9641 of this title, comprising subchapter II of
this chapter, were repealed by Pub. L. 99–499, title V,
§§ 514(b), 517(c)(1), Oct. 17, 1986, 100 Stat. 1767, 1774. For
complete classification of title II to the Code, see Short
Title of 1980 Amendment note set out under section 1 of
Title 26 and Tables.
The Single Audit Act, referred to in subsec. (k), probably means the Single Audit Act of 1984, Pub. L. 98–502,
Oct. 19, 1984, 98 Stat. 2327, which enacted chapter 75
(§ 7501 et seq.) of Title 31, Money and Finance, and provisions set out as notes under section 7501 of Title 31.
For complete classification of this Act to the Code, see
Short Title of 1984 Amendment note set out under section 7501 of Title 31 and Tables.
The Outer Continental Shelf Lands Act as amended,
referred to in subsec. (l)(3), is act Aug. 7, 1953, ch. 345,
67 Stat. 462, which is classified generally to subchapter
III (§ 1331 et seq.) of chapter 29 of Title 43, Public Lands.
For complete classification of this Act to the Code, see
Short Title note set out under section 1331 of Title 43
and Tables.

Page 6859

TITLE 42—THE PUBLIC HEALTH AND WELFARE

The Deepwater Port Act of 1974, as amended, referred
to in subsec. (l)(3), is Pub. L. 93–627, Jan. 3, 1975, 88 Stat.
2126, which is classified generally to chapter 29 (§ 1501 et
seq.) of Title 33, Navigation and Navigable Waters. For
complete classification of this Act to the Code, see
Short Title note set out under section 1501 of Title 33
and Tables.
Section 9631(b) of this title, referred to in subsec.
(p)(1), was repealed by Pub. L. 99–499, title V, § 517(c)(1),
Oct. 17, 1986, 100 Stat. 1774.
AMENDMENTS
1990—Subsec. (a). Pub. L. 101–508, § 6301(1), inserted
‘‘and not more than $5,100,000,000 for the period commencing October 1, 1991, and ending September 30,
1994,’’ after ‘‘October 17, 1986,’’ in introductory provisions.
Subsec. (c)(11). Pub. L. 101–508, § 6301(2), substituted
‘‘8-fiscal year period’’ for ‘‘5-fiscal-year period’’.
Subsec. (c)(12). Pub. L. 101–508, § 6301(3), substituted
‘‘1991, 1992, 1993, and 1994’’ for ‘‘and 1991’’.
Subsec. (m). Pub. L. 101–508, § 6301(4), substituted
‘‘1990, 1991, 1992, 1993, and 1994’’ for ‘‘1990 and 1991’’.
Subsec. (n)(1). Pub. L. 101–508, § 6301(5), substituted
‘‘1991, 1992, 1993, and 1994’’ for ‘‘and 1991’’.
Subsec. (n)(2)(E). Pub. L. 101–508, § 6301(6), added subpar. (E) and struck out former subpar. (E) which read
as follows: ‘‘For the fiscal year 1991, $35,000,000.’’
Subsec. (n)(3). Pub. L. 101–508, § 6301(7), substituted
‘‘1991, 1992, 1993, and 1994’’ for ‘‘and 1991’’.
Subsec. (p)(1)(F) to (H). Pub. L. 101–508, § 6301(8), added
subpars. (F) to (H).
1989—Subsec. (c)(12). Pub. L. 101–144, which directed
that section 9611(c)(12) of the Superfund Amendments
and Reauthorization Act of 1986 be amended by substituting ‘‘$20,000,000’’ for ‘‘$10,000,000’’, was executed by
making the substitution in subsec. (c)(12) of this section, as the probable intent of Congress because the
Superfund Amendments and Reauthorization Act of
1986, Pub. L. 99–499, does not contain a section 9611, but
section 111(d)(2) of Pub. L. 99–499 enacted subsec. (c)(12)
of this section.
1986—Subsec. (a). Pub. L. 99–499, § 111(a), (b), inserted
heading and ‘‘For the purposes specified in this section
there is authorized to be appropriated from the Hazardous Substance Superfund established under subchapter
A of chapter 98 of title 26 not more than $8,500,000,000
for the 5-year period beginning on October 17, 1986, and
such sums shall remain available until expended. The
preceding sentence constitutes a specific authorization
for the funds appropriated under title II of Public Law
99-160 (relating to payment to the Hazardous Substances Trust Fund).’’ in introductory provisions, substituted ‘‘Payment’’ for ‘‘payment’’ in pars. (1) to (4), a
period for a semicolon in pars. (1) and (2), and a period
for ‘‘; and’’ in par. (3), and added pars. (5) and (6).
Subsec. (b). Pub. L. 99–499, §§ 111(c)(1), 207(d)(1), designated existing provisions as par. (1), inserted ‘‘, or by
any Indian tribe or by the United States acting on behalf of any Indian tribe for natural resources belonging
to, managed by, controlled by, or appertaining to such
tribe, or held in trust for the benefit of such tribe, or
belonging to a member of such tribe if such resources
are subject to a trust restriction on alienation’’ in par.
(1), and added par. (2).
Subsec. (c). Pub. L. 99–499, §§ 111(d), 207(d)(2), in par.
(1), substituted ‘‘The’’ for ‘‘the’’ and substituted a period for the semicolon at end, in par. (2), substituted
‘‘The’’ for ‘‘the’’, inserted ‘‘or Indian tribe’’ and substituted a period for the semicolon at end, in par. (3),
substituted ‘‘Subject’’ for ‘‘subject’’ and substituted a
period for the semicolon at end, in par. (4), substituted
‘‘Any costs incurred in accordance with subsection (m)
of this section (relating to ATSDR) and section 9604(i)
of this title, including the costs of epidemiologic and
laboratory studies, health assessments, preparation of
toxicologic profiles’’ for ‘‘the costs of epidemiologic
studies’’ and substituted a period for the semicolon at
end, in par. (5), substituted a period for ‘‘; and’’, in
pars. (5) and (6), substituted ‘‘Subject’’ for ‘‘subject’’,
and added pars. (7) to (14).

§ 9611

Subsec. (e)(2). Pub. L. 99–499, § 111(e), inserted at end
‘‘No money in the Fund may be used for the payment
of any claim under subsection (a)(3) or subsection (b) of
this section in any fiscal year for which the President
determines that all of the Fund is needed for response
to threats to public health from releases or threatened
releases of hazardous substances.’’
Subsec. (e)(3). Pub. L. 99–499, § 111(f), inserted before
the period at end ‘‘; except that money in the Fund
shall be available for the provision of alternative water
supplies (including the reimbursement of costs incurred
by a municipality) in any case involving groundwater
contamination outside the boundaries of a federally
owned facility in which the federally owned facility is
not the only potentially responsible party’’.
Subsec. (f). Pub. L. 99–499, § 207(d)(3), inserted ‘‘or Indian tribe’’.
Subsec. (h). Pub. L. 99–499, § 111(c)(2), struck out subsec. (h) which read as follows:
‘‘(1) In accordance with regulations promulgated
under section 9651(c) of this title, damages for injury
to, destruction of, or loss of natural resources resulting
from a release of a hazardous substance, for the purposes of this chapter and section 1321(f)(4) and (5) of
title 33, shall be assessed by Federal officials designated by the President under the national contingency plan published under section 9605 of this title,
and such officials shall act for the President as trustee
under this section and section 1321(f)(5) of title 33.
‘‘(2) Any determination or assessment of damages for
injury to, destruction of, or loss of natural resources
for the purposes of this chapter and section 1321(f)(4)
and (5) of title 33 shall have the force and effect of a rebuttable presumption on behalf of any claimant (including a trustee under section 9607 of this title or a
Federal agency) in any judicial or adjudicatory administrative proceeding under this chapter or section 1321
of title 33.’’
Subsec. (i). Pub. L. 99–499, § 207(d)(4), inserted ‘‘and by
the governing body of any Indian tribe having sustained damage to natural resources belonging to, managed by, controlled by, or appertaining to such tribe, or
held in trust for the benefit of such tribe, or belonging
to a member of such tribe if such resources are subject
to a trust restriction on alienation,’’ after ‘‘State,’’.
Subsec. (k). Pub. L. 99–499, § 111(g), amended subsec.
(k) generally. Prior to amendment, subsec. (k) read as
follows: ‘‘The Inspector General of each department or
agency to which responsibility to obligate money in
the Fund is delegated shall provide an audit review
team to audit all payments, obligations, reimbursements, or other uses of the Fund, to assure that the
Fund is being properly administered and that claims
are being appropriately and expeditiously considered.
Each such Inspector General shall submit to the Congress an interim report one year after the establishment of the Fund and a final report two years after the
establishment of the Fund. Each such Inspector General shall thereafter provide such auditing of the Fund
as is appropriate. Each Federal agency shall cooperate
with the Inspector General in carrying out this subsection.’’
Subsecs. (m) to (p). Pub. L. 99–499, § 111(h), (i), added
subsecs. (m) to (p).
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
in subsec. (k) of this section relating to the requirement that the Inspector General submit an annual report to Congress on the audit report required under
subsec. (k), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31,
Money and Finance, and the 7th item on page 151 of
House Document No. 103–7.
SATISFACTION OF SUPERFUND AUDIT REQUIREMENTS BY
INSPECTOR GENERAL OF THE DEPARTMENT OF DEFENSE
Pub. L. 108–375, div. A, title III, § 311, Oct. 28, 2004, 118
Stat. 1842, provided that:

§ 9612

TITLE 42—THE PUBLIC HEALTH AND WELFARE

‘‘(a) SATISFACTION OF REQUIREMENTS.—The Inspector
General of the Department of Defense shall be deemed
to be in compliance with the requirements of section
111(k) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C.
9611(k)) if the Inspector General conducts periodic audits of the payments, obligations, reimbursements, and
other uses of the Hazardous Substance Superfund by
the Department of Defense, even if such audits do not
occur on an annual basis.
‘‘(b) REPORTS TO CONGRESS ON AUDITS.—The Inspector
General shall submit to Congress a report on each audit
conducted by the Inspector General as described in subsection (a).’’
COORDINATION OF TITLES I TO IV OF PUB. L. 99–499
Any provision of titles I to IV of Pub. L. 99–499, imposing any tax, premium, or fee; establishing any trust
fund; or authorizing expenditures from any trust fund,
to have no force or effect, see section 531 of Pub. L.
99–499, set out as a note under section 1 of Title 26, Internal Revenue Code.

§ 9612. Claims procedure
(a) Claims against Fund for response costs
No claim may be asserted against the Fund
pursuant to section 9611(a) of this title unless
such claim is presented in the first instance to
the owner, operator, or guarantor of the vessel
or facility from which a hazardous substance has
been released, if known to the claimant, and to
any other person known to the claimant who
may be liable under section 9607 of this title. In
any case where the claim has not been satisfied
within 60 days of presentation in accordance
with this subsection, the claimant may present
the claim to the Fund for payment. No claim
against the Fund may be approved or certified
during the pendency of an action by the claimant in court to recover costs which are the subject of the claim.
(b) Forms and procedures applicable
(1) Prescribing forms and procedures
The President shall prescribe appropriate
forms and procedures for claims filed hereunder, which shall include a provision requiring the claimant to make a sworn verification
of the claim to the best of his knowledge. Any
person who knowingly gives or causes to be
given any false information as a part of any
such claim shall, upon conviction, be fined in
accordance with the applicable provisions of
title 18 or imprisoned for not more than 3
years (or not more than 5 years in the case of
a second or subsequent conviction), or both.
(2) Payment or request for hearing
The President may, if satisfied that the information developed during the processing of
the claim warrants it, make and pay an award
of the claim, except that no claim may be
awarded to the extent that a judicial judgment has been made on the costs that are the
subject of the claim. If the President declines
to pay all or part of the claim, the claimant
may, within 30 days after receiving notice of
the President’s decision, request an administrative hearing.
(3) Burden of proof
In any proceeding under this subsection, the
claimant shall bear the burden of proving his
claim.

Page 6860

(4) Decisions
All administrative decisions made hereunder
shall be in writing, with notification to all appropriate parties, and shall be rendered within
90 days of submission of a claim to an administrative law judge, unless all the parties to the
claim agree in writing to an extension or unless the President, in his discretion, extends
the time limit for a period not to exceed sixty
days.
(5) Finality and appeal
All administrative decisions hereunder shall
be final, and any party to the proceeding may
appeal a decision within 30 days of notification
of the award or decision. Any such appeal shall
be made to the Federal district court for the
district where the release or threat of release
took place. In any such appeal, the decision
shall be considered binding and conclusive,
and shall not be overturned except for arbitrary or capricious abuse of discretion.
(6) Payment
Within 20 days after the expiration of the appeal period for any administrative decision
concerning an award, or within 20 days after
the final judicial determination of any appeal
taken pursuant to this subsection, the President shall pay any such award from the Fund.
The President shall determine the method,
terms, and time of payment.
(c) Subrogation rights; actions maintainable
(1) Payment of any claim by the Fund under
this section shall be subject to the United
States Government acquiring by subrogation
the rights of the claimant to recover those costs
of removal or damages for which it has compensated the claimant from the person responsible or liable for such release.
(2) Any person, including the Fund, who pays
compensation pursuant to this chapter to any
claimant for damages or costs resulting from a
release of a hazardous substance shall be subrogated to all rights, claims, and causes of action for such damages and costs of removal that
the claimant has under this chapter or any
other law.
(3) Upon request of the President, the Attorney General shall commence an action on behalf
of the Fund to recover any compensation paid
by the Fund to any claimant pursuant to this
subchapter, and, without regard to any limitation of liability, all interest, administrative and
adjudicative costs, and attorney’s fees incurred
by the Fund by reason of the claim. Such an action may be commenced against any owner, operator, or guarantor, or against any other person who is liable, pursuant to any law, to the
compensated claimant or to the Fund, for the
damages or costs for which compensation was
paid.
(d) Statute of limitations
(1) Claims for recovery of costs
No claim may be presented under this section for recovery of the costs referred to in
section 9607(a) of this title after the date 6
years after the date of completion of all response action.

Page 6861

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(2) Claims for recovery of damages
No claim may be presented under this section for recovery of the damages referred to in
section 9607(a) of this title unless the claim is
presented within 3 years after the later of the
following:
(A) The date of the discovery of the loss
and its connection with the release in question.
(B) The date on which final regulations are
promulgated under section 9651(c) of this
title.
(3) Minors and incompetents
The time limitations contained herein shall
not begin to run—
(A) against a minor until the earlier of the
date when such minor reaches 18 years of age
or the date on which a legal representative
is duly appointed for the minor, or
(B) against an incompetent person until
the earlier of the date on which such person’s incompetency ends or the date on
which a legal representative is duly appointed for such incompetent person.
(e) Other statutory or common law claims not
waived, etc.
Regardless of any State statutory or common
law to the contrary, no person who asserts a
claim against the Fund pursuant to this subchapter shall be deemed or held to have waived
any other claim not covered or assertable
against the Fund under this subchapter arising
from the same incident, transaction, or set of
circumstances, nor to have split a cause of action. Further, no person asserting a claim
against the Fund pursuant to this subchapter
shall as a result of any determination of a question of fact or law made in connection with that
claim be deemed or held to be collaterally estopped from raising such question in connection
with any other claim not covered or assertable
against the Fund under this subchapter arising
from the same incident, transaction, or set of
circumstances.
(f) Double recovery prohibited
Where the President has paid out of the Fund
for any response costs or any costs specified
under section 9611(c)(1) or (2) of this title, no
other claim may be paid out of the Fund for the
same costs.
(Pub. L. 96–510, title I, § 112, Dec. 11, 1980, 94 Stat.
2792; Pub. L. 99–499, title I, §§ 109(a)(3), 112, Oct.
17, 1986, 100 Stat. 1633, 1646.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (c)(2), was in the
original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, which is classified principally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 9601 of this title
and Tables.
AMENDMENTS
1986—Subsec. (a). Pub. L. 99–499, § 112(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read
as follows: ‘‘All claims which may be asserted against
the Fund pursuant to section 9611 of this title shall be
presented in the first instance to the owner, operator,

§ 9613

or guarantor of the vessel or facility from which a hazardous substance has been released, if known to the
claimant, and to any other person known to the claimant who may be liable under section 9607 of this title.
In any case where the claim has not been satisfied
within sixty days of presentation in accordance with
this subsection, the claimant may elect to commence
an action in court against such owner, operator, guarantor, or other person or to present the claim to the
Fund for payment.’’
Subsec. (b)(1). Pub. L. 99–499, § 112(b), added heading.
Pub. L. 99–499, § 109(a)(3), substituted ‘‘in accordance
with the applicable provisions of title 18 or imprisoned
for not more than 3 years (or not more than 5 years in
the case of a second or subsequent conviction), or both’’
for ‘‘up to $5,000 or imprisoned for not more than one
year, or both’’.
Subsec. (b)(2) to (6). Pub. L. 99–499, § 112(b), added
pars. (2) to (6) and struck out former pars. (2) to (4)
which related to the settlement and arbitration of
claims against liable persons and against the Fund.
Subsec. (d). Pub. L. 99–499, § 112(c), amended subsec.
(d) generally. Prior to amendment, subsec. (d) read as
follows: ‘‘No claim may be presented, nor may an action be commenced for damages under this subchapter,
unless that claim is presented or action commenced
within three years from the date of the discovery of the
loss or December 11, 1980, whichever is later: Provided,
however, That the time limitations contained herein
shall not begin to run against a minor until he reaches
eighteen years of age or a legal representative is duly
appointed for him, nor against an incompetent person
until his incompetency ends or a legal representative is
duly appointed for him.’’
Subsec. (f). Pub. L. 99–499, § 112(d), added subsec. (f).
COORDINATION OF TITLES I TO IV OF PUB. L. 99–499
Any provision of titles I to IV of Pub. L. 99–499, imposing any tax, premium, or fee; establishing any trust
fund; or authorizing expenditures from any trust fund,
to have no force or effect, see section 531 of Pub. L.
99–499, set out as a note under section 1 of Title 26, Internal Revenue Code.

§ 9613. Civil proceedings
(a) Review of regulations in Circuit Court of Appeals of the United States for the District of
Columbia
Review of any regulation promulgated under
this chapter may be had upon application by any
interested person only in the Circuit Court of
Appeals of the United States for the District of
Columbia. Any such application shall be made
within ninety days from the date of promulgation of such regulations. Any matter with respect to which review could have been obtained
under this subsection shall not be subject to judicial review in any civil or criminal proceeding
for enforcement or to obtain damages or recovery of response costs.
(b) Jurisdiction; venue
Except as provided in subsections (a) and (h) of
this section, the United States district courts
shall have exclusive original jurisdiction over
all controversies arising under this chapter,
without regard to the citizenship of the parties
or the amount in controversy. Venue shall lie in
any district in which the release or damages occurred, or in which the defendant resides, may
be found, or has his principal office. For the purposes of this section, the Fund shall reside in
the District of Columbia.
(c) Controversies or other matters resulting from
tax collection or tax regulation review
The provisions of subsections (a) and (b) of
this section shall not apply to any controversy

§ 9613

TITLE 42—THE PUBLIC HEALTH AND WELFARE

or other matter resulting from the assessment
of collection of any tax, as provided by subchapter II 1 of this chapter, or to the review of
any regulation promulgated under title 26.
(d) Litigation commenced prior to December 11,
1980
No provision of this chapter shall be deemed
or held to moot any litigation concerning any
release of any hazardous substance, or any damages associated therewith, commenced prior to
December 11, 1980.
(e) Nationwide service of process
In any action by the United States under this
chapter, process may be served in any district
where the defendant is found, resides, transacts
business, or has appointed an agent for the service of process.
(f) Contribution
(1) Contribution
Any person may seek contribution from any
other person who is liable or potentially liable
under section 9607(a) of this title, during or
following any civil action under section 9606 of
this title or under section 9607(a) of this title.
Such claims shall be brought in accordance
with this section and the Federal Rules of
Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the
court may allocate response costs among liable parties using such equitable factors as the
court determines are appropriate. Nothing in
this subsection shall diminish the right of any
person to bring an action for contribution in
the absence of a civil action under section 9606
of this title or section 9607 of this title.
(2) Settlement
A person who has resolved its liability to the
United States or a State in an administrative
or judicially approved settlement shall not be
liable for claims for contribution regarding
matters addressed in the settlement. Such settlement does not discharge any of the other
potentially liable persons unless its terms so
provide, but it reduces the potential liability
of the others by the amount of the settlement.
(3) Persons not party to settlement
(A) If the United States or a State has obtained less than complete relief from a person
who has resolved its liability to the United
States or the State in an administrative or judicially approved settlement, the United
States or the State may bring an action
against any person who has not so resolved its
liability.
(B) A person who has resolved its liability to
the United States or a State for some or all of
a response action or for some or all of the
costs of such action in an administrative or
judicially approved settlement may seek contribution from any person who is not party to
a settlement referred to in paragraph (2).
(C) In any action under this paragraph, the
rights of any person who has resolved its liability to the United States or a State shall be
subordinate to the rights of the United States
1 See

References in Text note below.

Page 6862

or the State. Any contribution action brought
under this paragraph shall be governed by Federal law.
(g) Period in which action may be brought
(1) Actions for natural resource damages
Except as provided in paragraphs (3) and (4),
no action may be commenced for damages (as
defined in section 9601(6) of this title) under
this chapter, unless that action is commenced
within 3 years after the later of the following:
(A) The date of the discovery of the loss
and its connection with the release in question.
(B) The date on which regulations are promulgated under section 9651(c) of this title.
With respect to any facility listed on the National Priorities List (NPL), any Federal facility identified under section 9620 of this title
(relating to Federal facilities), or any vessel or
facility at which a remedial action under this
chapter is otherwise scheduled, an action for
damages under this chapter must be commenced within 3 years after the completion of
the remedial action (excluding operation and
maintenance activities) in lieu of the dates referred to in subparagraph (A) or (B). In no
event may an action for damages under this
chapter with respect to such a vessel or facility be commenced (i) prior to 60 days after the
Federal or State natural resource trustee provides to the President and the potentially responsible party a notice of intent to file suit,
or (ii) before selection of the remedial action
if the President is diligently proceeding with a
remedial investigation and feasibility study
under section 9604(b) of this title or section
9620 of this title (relating to Federal facilities). The limitation in the preceding sentence
on commencing an action before giving notice
or before selection of the remedial action does
not apply to actions filed on or before October
17, 1986.
(2) Actions for recovery of costs
An initial action for recovery of the costs referred to in section 9607 of this title must be
commenced—
(A) for a removal action, within 3 years
after completion of the removal action, except that such cost recovery action must be
brought within 6 years after a determination
to grant a waiver under section 9604(c)(1)(C)
of this title for continued response action;
and
(B) for a remedial action, within 6 years
after initiation of physical on-site construction of the remedial action, except that, if
the remedial action is initiated within 3
years after the completion of the removal
action, costs incurred in the removal action
may be recovered in the cost recovery action
brought under this subparagraph.
In any such action described in this subsection, the court shall enter a declaratory
judgment on liability for response costs or
damages that will be binding on any subsequent action or actions to recover further response costs or damages. A subsequent action
or actions under section 9607 of this title for

Page 6863

TITLE 42—THE PUBLIC HEALTH AND WELFARE

further response costs at the vessel or facility
may be maintained at any time during the response action, but must be commenced no
later than 3 years after the date of completion
of all response action. Except as otherwise
provided in this paragraph, an action may be
commenced under section 9607 of this title for
recovery of costs at any time after such costs
have been incurred.
(3) Contribution
No action for contribution for any response
costs or damages may be commenced more
than 3 years after—
(A) the date of judgment in any action
under this chapter for recovery of such costs
or damages, or
(B) the date of an administrative order
under section 9622(g) of this title (relating to
de minimis settlements) or 9622(h) of this
title (relating to cost recovery settlements)
or entry of a judicially approved settlement
with respect to such costs or damages.
(4) Subrogation
No action based on rights subrogated pursuant to this section by reason of payment of a
claim may be commenced under this subchapter more than 3 years after the date of
payment of such claim.
(5) Actions to recover indemnification payments
Notwithstanding any other provision of this
subsection, where a payment pursuant to an
indemnification agreement with a response action contractor is made under section 9619 of
this title, an action under section 9607 of this
title for recovery of such indemnification payment from a potentially responsible party
may be brought at any time before the expiration of 3 years from the date on which such
payment is made.
(6) Minors and incompetents
The time limitations contained herein shall
not begin to run—
(A) against a minor until the earlier of the
date when such minor reaches 18 years of age
or the date on which a legal representative
is duly appointed for such minor, or
(B) against an incompetent person until
the earlier of the date on which such incompetent’s incompetency ends or the date on
which a legal representative is duly appointed for such incompetent.
(h) Timing of review
No Federal court shall have jurisdiction under
Federal law other than under section 1332 of
title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable
or relevant and appropriate under section 9621 of
this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or
to review any order issued under section 9606(a)
of this title, in any action except one of the following:
(1) An action under section 9607 of this title
to recover response costs or damages or for
contribution.
(2) An action to enforce an order issued
under section 9606(a) of this title or to recover
a penalty for violation of such order.

§ 9613

(3) An action for reimbursement under section 9606(b)(2) of this title.
(4) An action under section 9659 of this title
(relating to citizens suits) alleging that the removal or remedial action taken under section
9604 of this title or secured under section 9606
of this title was in violation of any requirement of this chapter. Such an action may not
be brought with regard to a removal where a
remedial action is to be undertaken at the
site.
(5) An action under section 9606 of this title
in which the United States has moved to compel a remedial action.
(i) Intervention
In any action commenced under this chapter
or under the Solid Waste Disposal Act [42 U.S.C.
6901 et seq.] in a court of the United States, any
person may intervene as a matter of right when
such person claims an interest relating to the
subject of the action and is so situated that the
disposition of the action may, as a practical
matter, impair or impede the person’s ability to
protect that interest, unless the President or
the State shows that the person’s interest is
adequately represented by existing parties.
(j) Judicial review
(1) Limitation
In any judicial action under this chapter, judicial review of any issues concerning the adequacy of any response action taken or ordered
by the President shall be limited to the administrative record. Otherwise applicable
principles of administrative law shall govern
whether any supplemental materials may be
considered by the court.
(2) Standard
In considering objections raised in any judicial action under this chapter, the court shall
uphold the President’s decision in selecting
the response action unless the objecting party
can demonstrate, on the administrative
record, that the decision was arbitrary and capricious or otherwise not in accordance with
law.
(3) Remedy
If the court finds that the selection of the
response action was arbitrary and capricious
or otherwise not in accordance with law, the
court shall award (A) only the response costs
or damages that are not inconsistent with the
national contingency plan, and (B) such other
relief as is consistent with the National Contingency Plan.
(4) Procedural errors
In reviewing alleged procedural errors, the
court may disallow costs or damages only if
the errors were so serious and related to matters of such central relevance to the action
that the action would have been significantly
changed had such errors not been made.
(k) Administrative record and participation procedures
(1) Administrative record
The President shall establish an administrative record upon which the President shall

§ 9614

TITLE 42—THE PUBLIC HEALTH AND WELFARE

base the selection of a response action. The
administrative record shall be available to the
public at or near the facility at issue. The
President also may place duplicates of the administrative record at any other location.
(2) Participation procedures
(A) Removal action
The President shall promulgate regulations in accordance with chapter 5 of title 5
establishing procedures for the appropriate
participation of interested persons in the development of the administrative record on
which the President will base the selection
of removal actions and on which judicial review of removal actions will be based.
(B) Remedial action
The President shall provide for the participation of interested persons, including potentially responsible parties, in the development of the administrative record on which
the President will base the selection of remedial actions and on which judicial review
of remedial actions will be based. The procedures developed under this subparagraph
shall include, at a minimum, each of the following:
(i) Notice to potentially affected persons
and the public, which shall be accompanied by a brief analysis of the plan and
alternative plans that were considered.
(ii) A reasonable opportunity to comment and provide information regarding
the plan.
(iii) An opportunity for a public meeting
in the affected area, in accordance with
section 9617(a)(2) of this title (relating to
public participation).
(iv) A response to each of the significant
comments, criticisms, and new data submitted in written or oral presentations.
(v) A statement of the basis and purpose
of the selected action.
For purposes of this subparagraph, the administrative record shall include all items
developed and received under this subparagraph and all items described in the second
sentence of section 9617(d) of this title. The
President shall promulgate regulations in
accordance with chapter 5 of title 5 to carry
out the requirements of this subparagraph.
(C) Interim record
Until such regulations under subparagraphs (A) and (B) are promulgated, the administrative record shall consist of all items
developed and received pursuant to current
procedures for selection of the response action, including procedures for the participation of interested parties and the public. The
development of an administrative record and
the selection of response action under this
chapter shall not include an adjudicatory
hearing.
(D) Potentially responsible parties
The President shall make reasonable efforts to identify and notify potentially responsible parties as early as possible before
selection of a response action. Nothing in
this paragraph shall be construed to be a defense to liability.

Page 6864

(l) Notice of actions
Whenever any action is brought under this
chapter in a court of the United States by a
plaintiff other than the United States, the plaintiff shall provide a copy of the complaint to the
Attorney General of the United States and to
the Administrator of the Environmental Protection Agency.
(Pub. L. 96–510, title I, § 113, Dec. 11, 1980, 94 Stat.
2795; Pub. L. 99–499, title I, § 113, Oct. 17, 1986, 100
Stat. 1647; Pub. L. 99–514, § 2, Oct. 22, 1986, 100
Stat. 2095.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2767, known as the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
which is classified principally to this chapter. For complete classification of this Act to the Code, see Short
Title note set out under section 9601 of this title and
Tables.
Subchapter II of this chapter, referred to in subsec.
(c), was in the original ‘‘title II of this Act’’, meaning
title II of Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2796,
known as the Hazardous Substance Response Revenue
Act of 1980, which enacted subchapter II of this chapter
and sections 4611, 4612, 4661, 4662, 4681, and 4682 of Title
26, Internal Revenue Code. Sections 221 to 223 and 232 of
Pub. L. 96–510, which were classified to sections 9631 to
9633 and 9641 of this title, comprising subchapter II of
this chapter, were repealed by Pub. L. 99–499, title V,
§§ 514(b), 517(c)(1), Oct. 17, 1986, 100 Stat. 1767, 1774. For
complete classification of title II to the Code, see Short
Title of 1980 Amendment note set out under section 1 of
Title 26 and Tables.
The Federal Rules of Civil Procedure, referred to in
subsec. (f)(1), are set out in the Appendix to Title 28,
Judiciary and Judicial Procedure.
The Solid Waste Disposal Act, referred to in subsec.
(i), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997,
as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976,
90 Stat. 2795, which is classified generally to chapter 82
(§ 6901 et seq.) of this title. For complete classification
of this Act to the Code, see Short Title note set out
under section 6901 of this title and Tables.
AMENDMENTS
1986—Subsec. (b). Pub. L. 99–499, § 113(c)(1), substituted ‘‘subsections (a) and (h)’’ for ‘‘subsection (a)’’.
Subsec. (c). Pub. L. 99–514 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue Code of 1954’’,
which for purposes of codification was translated as
‘‘title 26’’ thus requiring no change in text.
Subsecs. (e) to (l). Pub. L. 99–499, § 113(a), (b), (c)(2),
added subsecs. (e) to (l).

§ 9614. Relationship to other law
(a) Additional State liability or requirements
with respect to release of substances within
State
Nothing in this chapter shall be construed or
interpreted as preempting any State from imposing any additional liability or requirements
with respect to the release of hazardous substances within such State.
(b) Recovery under other State or Federal law of
compensation for removal costs or damages,
or payment of claims
Any person who receives compensation for removal costs or damages or claims pursuant to
this chapter shall be precluded from recovering
compensation for the same removal costs or

Page 6865

TITLE 42—THE PUBLIC HEALTH AND WELFARE

damages or claims pursuant to any other State
or Federal law. Any person who receives compensation for removal costs or damages or
claims pursuant to any other Federal or State
law shall be precluded from receiving compensation for the same removal costs or damages or
claims as provided in this chapter.
(c) Recycled oil
(1) Service station dealers, etc.
No person (including the United States or
any State) may recover, under the authority
of subsection (a)(3) or (a)(4) of section 9607 of
this title, from a service station dealer for any
response costs or damages resulting from a release or threatened release of recycled oil, or
use the authority of section 9606 of this title
against a service station dealer other than a
person described in subsection (a)(1) or (a)(2) of
section 9607 of this title, if such recycled oil—
(A) is not mixed with any other hazardous
substance, and
(B) is stored, treated, transported, or
otherwise managed in compliance with regulations or standards promulgated pursuant
to section 3014 of the Solid Waste Disposal
Act [42 U.S.C. 6935] and other applicable authorities.
Nothing in this paragraph shall affect or modify in any way the obligations or liability of
any person under any other provision of State
or Federal law, including common law, for
damages, injury, or loss resulting from a release or threatened release of any hazardous
substance or for removal or remedial action or
the costs of removal or remedial action.
(2) Presumption
Solely for the purposes of this subsection, a
service station dealer may presume that a
small quantity of used oil is not mixed with
other hazardous substances if it—
(A) has been removed from the engine of a
light duty motor vehicle or household appliances by the owner of such vehicle or appliances, and
(B) is presented, by such owner, to the
dealer for collection, accumulation, and delivery to an oil recycling facility.
(3) Definition
For purposes of this subsection, the terms
‘‘used oil’’ and ‘‘recycled oil’’ have the same
meanings as set forth in sections 1004(36) and
1004(37) of the Solid Waste Disposal Act [42
U.S.C. 6903(36), (37)] and regulations promulgated pursuant to that Act [42 U.S.C. 6901 et
seq.].
(4) Effective date
The effective date of paragraphs (1) and (2) of
this subsection shall be the effective date of
regulations or standards promulgated under
section 3014 of the Solid Waste Disposal Act
[42 U.S.C. 6935] that include, among other provisions, a requirement to conduct corrective
action to respond to any releases of recycled
oil under subtitle C or subtitle I of such Act
[42 U.S.C. 6921 et seq., 6991 et seq.].

§ 9615

(d) Financial responsibility of owner or operator
of vessel or facility under State or local law,
rule, or regulation
Except as provided in this subchapter, no
owner or operator of a vessel or facility who establishes and maintains evidence of financial responsibility in accordance with this subchapter
shall be required under any State or local law,
rule, or regulation to establish or maintain any
other evidence of financial responsibility in connection with liability for the release of a hazardous substance from such vessel or facility. Evidence of compliance with the financial responsibility requirements of this subchapter shall be
accepted by a State in lieu of any other requirement of financial responsibility imposed by such
State in connection with liability for the release
of a hazardous substance from such vessel or facility.
(Pub. L. 96–510, title I, § 114, Dec. 11, 1980, 94 Stat.
2795; Pub. L. 99–499, title I, § 114(a), Oct. 17, 1986,
100 Stat. 1652.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a) and (b), was
in the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec.
11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code,
see Short Title note set out under section 9601 of this
title and Tables.
The Solid Waste Disposal Act, referred to in subsec.
(c)(3), (4), is title II of Pub. L. 89–272, Oct. 20, 1965, 79
Stat. 997, as amended generally by Pub. L. 94–580, § 2,
Oct. 21, 1976, 90 Stat. 2795, which is classified generally
to chapter 82 (§ 6901 et seq.) of this title. Subtitles C and
I of the Solid Waste Disposal Act are classified generally to subchapters III (§ 6921 et seq.) and IX (§ 6991 et
seq.), respectively, of chapter 82 of this title. For complete classification of this Act to the Code, see Short
Title note set out under section 6901 of this title and
Tables.
AMENDMENTS
1986—Subsec. (c). Pub. L. 99–499 amended subsec. (c)
generally. Prior to amendment, subsec. (c) read as follows: ‘‘Except as provided in this chapter, no person
may be required to contribute to any fund, the purpose
of which is to pay compensation for claims for any
costs of response or damages or claims which may be
compensated under this subchapter. Nothing in this
section shall preclude any State from using general
revenues for such a fund, or from imposing a tax or fee
upon any person or upon any substance in order to finance the purchase or prepositioning of hazardous substance response equipment or other preparations for
the response to a release of hazardous substances which
affects such State.’’

§ 9615. Presidential delegation and assignment of
duties or powers and promulgation of regulations
The President is authorized to delegate and
assign any duties or powers imposed upon or assigned to him and to promulgate any regulations necessary to carry out the provisions of
this subchapter.
(Pub. L. 96–510, title I, § 115, Dec. 11, 1980, 94 Stat.
2796.)
EX. ORD. NO. 12580. SUPERFUND IMPLEMENTATION
Ex. Ord. No. 12580, Jan. 23, 1987, 52 F.R. 2923, as
amended by Ex. Ord. No. 12777, § 1(a), Oct. 18, 1991, 56

§ 9615

TITLE 42—THE PUBLIC HEALTH AND WELFARE

F.R. 54757; Ex. Ord. No. 13016, Aug. 28, 1996, 61 F.R. 45871;
Ex. Ord. No. 13286, § 43, Feb. 28, 2003, 68 F.R. 10627; Ex.
Ord. No. 13308, June 20, 2003, 68 F.R. 37691, provided:
By the authority vested in me as President of the
United States of America by Section 115 of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. 9615 et seq.)
(‘‘the Act’’), and by Section 301 of Title 3 of the United
States Code, it is hereby ordered as follows:
SECTION 1. National Contingency Plan. (a)(1) The National Contingency Plan (‘‘the NCP’’), shall provide for
a National Response Team (‘‘the NRT’’) composed of
representatives of appropriate Federal departments and
agencies for national planning and coordination of preparedness and response actions, and Regional Response
Teams as the regional counterparts to the NRT for
planning and coordination of regional preparedness and
response actions.
(2) The following agencies (in addition to other appropriate agencies) shall provide representatives to the
National and Regional Response Teams to carry out
their responsibilities under the NCP: Department of
State, Department of Defense, Department of Justice,
Department of the Interior, Department of Agriculture,
Department of Commerce, Department of Labor, Department of Health and Human Services, Department
of Transportation, Department of Energy, Department
of Homeland Security, Environmental Protection
Agency,, [sic] United States Coast Guard, and the Nuclear Regulatory Commission.
(3) Except for periods of activation because of response action, the representative of the Environmental
Protection Agency (‘‘EPA’’) shall be the chairman, and
the representative of the United States Coast Guard
shall be the vice chairman, of the NRT and these agencies’ representatives shall be co-chairs of the Regional
Response Teams (‘‘the RRTs’’). When the NRT or an
RRT is activated for a response action, the EPA representative shall be the chairman when the release or
threatened release or discharge or threatened discharge
occurs in the inland zone, and the United States Coast
Guard representative shall be the chairman when the
release or threatened release or discharge or threatened discharge occurs in the coastal zone, unless otherwise agreed upon by the EPA and the United States
Coast Guard representatives (inland and coastal zones
are defined in the NCP).
(4) The RRTs may include representatives from State
governments, local governments (as agreed upon by the
States), and Indian tribal governments. Subject to the
functions and authorities delegated to Executive departments and agencies in other sections of this order,
the NRT shall provide policy and program direction to
the RRTs.
(b)(1) The responsibility for the revision of the NCP
and all the other functions vested in the President by
Sections 105(a), (b), (c), (g) and (h), 125, and 301(f) of the
Act [42 U.S.C. 9605(a), (b), (c), (g), (h), 9625, 9651(f)], by
Section 311(d)(1) of the Federal Water Pollution Control
Act [33 U.S.C. 1321(d)(1)], and by Section 4201(c) of the
Oil Pollution Act of 1990 [Pub. L. 101–380, 33 U.S.C. 1321
note] is delegated to the Administrator of the Environmental Protection Agency (‘‘the Administrator’’).
(2) The function vested in the President by Section
118(p) of the Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99–499) (‘‘SARA’’) [100 Stat.
1662] is delegated to the Administrator.
(c) In accord with Section 107(f)(2)(A) of the Act [42
U.S.C. 9607(f)(2)(A)], Section 311(f)(5) of the Federal
Water Pollution Control Act, as amended (33 U.S.C.
1321(f)(5)), and Section 1006(b)(1) and (2) of the Oil Pollution Act of 1990 [33 U.S.C. 2706(b)(1), (2)], the following
shall be among those designated in the NCP as Federal
trustees for natural resources:
(1) Secretary of Defense;
(2) Secretary of the Interior;
(3) Secretary of Agriculture;
(4) Secretary of Commerce;
(5) Secretary of Energy.
In the event of a spill, the above named Federal
trustees for natural resources shall designate one trust-

Page 6866

ee to act as Lead Administrative Trustee, the duties of
which shall be defined in the regulations promulgated
pursuant to Section 1006(e)(1) of OPA. If there are natural resource trustees other than those designated above
which are acting in the event of a spill, those other
trustees may join with the Federal trustees to name a
Lead Administrative Trustee which shall exercise the
duties defined in the regulations promulgated pursuant
to Section 1006(e)(1) of OPA.
(d) Revisions to the NCP shall be made in consultation with members of the NRT prior to publication for
notice and comment.
(e) All revisions to the NCP, whether in proposed or
final form, shall be subject to review and approval by
the Director of the Office of Management and Budget
(‘‘OMB’’).
SEC. 2. Response and Related Authorities. (a) The functions vested in the President by the first sentence of
Section 104(b)(1) of the Act [42 U.S.C. 9604(b)(1)] relating
to ‘‘illness, disease, or complaints thereof’’ are delegated to the Secretary of Health and Human Services
who shall, in accord with Section 104(i) of the Act, perform those functions through the Public Health Service.
(b) The functions vested in the President by Sections
104(e)(7)(C), 113(k)(2), 119(c)(7), and 121(f)(1) of the Act
[42 U.S.C. 9604(e)(7)(C), 9613(k)(2), 9619(c)(7), 9621(f)(1)],
relating to promulgation of regulations and guidelines,
are delegated to the Administrator, to be exercised in
consultation with the NRT.
(c)(1) The functions vested in the President by Sections 104(a) and the second sentence of 126(b) of the Act
[42 U.S.C. 9604(a), 9626(b)], to the extent they require
permanent relocation of residents, businesses, and community facilities or temporary evacuation and housing
of threatened individuals not otherwise provided for,
are delegated to the Director of the Federal Emergency
Management Agency.
(2) Subject to subsection (b) of this Section, the functions vested in the President by Sections 117(a) and (c),
and 119 of the Act [42 U.S.C. 9617(a), (c), 9619], to the extent such authority is needed to carry out the functions delegated under paragraph (1) of this subsection,
are delegated to the Director of the Federal Emergency
Management Agency.
(d) Subject to subsections (a), (b) and (c) of this Section, the functions vested in the President by Sections
104(a), (b) and (c)(4), 113(k), 117(a) and (c), 119, and 121 of
the Act [42 U.S.C. 9604(a), (b), (c)(4), 9613(k), 9617(a), (c),
9619, 9621] are delegated to the Secretaries of Defense
and Energy, with respect to releases or threatened releases where either the release is on or the sole source
of the release is from any facility or vessel under the
jurisdiction, custody or control of their departments,
respectively, including vessels bare-boat chartered and
operated. These functions must be exercised consistent
with the requirements of Section 120 of the Act [42
U.S.C. 9620].
(e)(1) Subject to subsections (a), (b), (c), and (d) of
this Section, the functions vested in the President by
Sections 104(a), (b), and (c)(4), and 121 of the Act [42
U.S.C. 9604(a), (b), (c)(4), 9621] are delegated to the
heads of Executive departments and agencies, with respect to remedial actions for releases or threatened releases which are not on the National Priorities List
(‘‘the NPL’’) and removal actions other than emergencies, where either the release is on or the sole
source of the release is from any facility or vessel
under the jurisdiction, custody or control of those departments and agencies, including vessels bare-boat
chartered and operated. The Administrator shall define
the term ‘‘emergency’’, solely for the purposes of this
subsection, either by regulation or by a memorandum
of understanding with the head of an Executive department or agency.
(2) Subject to subsections (b), (c), and (d) of this Section, the functions vested in the President by Sections
104(b)(2), 113(k), 117(a) and (c), and 119 of the Act [42
U.S.C. 9604(b)(2), 9613(k), 9617(a), (c), 9619] are delegated
to the heads of Executive departments and agencies,

Page 6867

TITLE 42—THE PUBLIC HEALTH AND WELFARE

with respect to releases or threatened releases where
either the release is on or the sole source of the release
is from any facility or vessel under the jurisdiction,
custody or control of those departments and agencies,
including vessels bare-boat chartered and operated.
(f) Subject to subsections (a), (b), (c), (d), and (e) of
this Section, the functions vested in the President by
Sections 104(a), (b) and (c)(4), 113(k), 117(a) and (c), 119,
and 121 of the Act [42 U.S.C. 9604(a), (b), (c)(4), 9613(k),
9617(a), (c), 9619, 9621] are delegated to the Secretary of
the Department in which the Coast Guard is operating
(‘‘the Coast Guard’’), with respect to any release or
threatened release involving the coastal zone, Great
Lakes waters, ports, and harbors.
(g) Subject to subsections (a), (b), (c), (d), (e), and (f)
of this Section, the functions vested in the President
by Sections 101(24), 104(a), (b), (c)(4) and (c)(9), 113(k),
117(a) and (c), 119, 121, and 126(b) of the Act [42 U.S.C.
9601(24), 9604(a), (b), (c)(4), (9), 9613(k), 9617(a), (c), 9619,
9621, 9626(b)] are delegated to the Administrator. The
Administrator’s authority under Section 119 of the Act
is retroactive to the date of enactment of SARA [Oct.
17, 1986].
(h) The functions vested in the President by Section
104(c)(3) of the Act [42 U.S.C. 9604(c)(3)] are delegated to
the Administrator, with respect to providing assurances for Indian tribes, to be exercised in consultation
with the Secretary of the Interior.
(i) Subject to subsections (d), (e), (f), (g) and (h) of
this Section, the functions vested in the President by
Section 104(c) and (d) of the Act are delegated to the
Coast Guard, the Secretary of Health and Human Services, the Director of the Federal Emergency Management Agency, and the Administrator in order to carry
out the functions delegated to them by this Section.
(j)(1) The functions vested in the President by Section 104(e)(5)(A) are delegated to the heads of Executive
departments and agencies, with respect to releases or
threatened releases where either the release is on or
the sole source of the release is from any facility or
vessel under the jurisdiction, custody or control of
those departments and agencies, to be exercised with
the concurrence of the Attorney General.
(2) Subject to subsection (b) of this Section and paragraph (1) of this subsection, the functions vested in the
President by Section 104(e) are delegated to the heads
of Executive departments and agencies in order to
carry out their functions under this Order or the Act.
(k) The functions vested in the President by Section
104(f), (g), (h), (i)(11), and (j) of the Act are delegated to
the heads of Executive departments and agencies in
order to carry out the functions delegated to them by
this Section. The exercise of authority under Section
104(h) of the Act shall be subject to the approval of the
Administrator of the Office of Federal Procurement
Policy.
SEC. 3. Cleanup Schedules. (a) The functions vested in
the President by Sections 116(a) and the first two sentences of 105(d) of the Act [42 U.S.C. 9616(a), 9605(d)] are
delegated to the heads of Executive departments and
agencies with respect to facilities under the jurisdiction, custody or control of those departments and agencies.
(b) Subject to subsection (a) of this Section, the functions vested in the President by Sections 116 and 105(d)
are delegated to the Administrator.
SEC. 4. Enforcement. (a) The functions vested in the
President by Sections 109(d) and 122(e)(3)(A) of the Act
[42 U.S.C. 9609(d), 9622(e)(3)(A)], relating to development
of regulations and guidelines, are delegated to the Administrator, to be exercised in consultation with the
Attorney General.
(b)(1) Subject to subsection (a) of this Section, the
functions vested in the President by Section 122 [42
U.S.C. 9622] (except subsection (b)(1)) are delegated to
the heads of Executive departments and agencies, with
respect to releases or threatened releases not on the
NPL where either the release is on or the sole source
of the release is from any facility under the jurisdiction, custody or control of those Executive depart-

§ 9615

ments and agencies. These functions may be exercised
only with the concurrence of the Attorney General.
(2) Subject to subsection (a) of this Section, the functions vested in the President by Section 109 of the Act
[42 U.S.C. 9609], relating to violations of Section 122 of
the Act, are delegated to the heads of Executive departments and agencies, with respect to releases or threatened releases not on the NPL where either the release
is on or the sole source of the release is from any facility under the jurisdiction, custody or control of those
Executive departments and agencies. These functions
may be exercised only with the concurrence of the Attorney General.
(c)(1) Subject to subsection[s] (a) and (b)(1) of this
Section, the functions vested in the President by Sections 106(a) and 122 of the Act [42 U.S.C. 9606(a), 9622]
are delegated to the Coast Guard with respect to any
release or threatened release involving the coastal
zone, Great Lakes waters, ports, and harbors.
(2) Subject to subsection[s] (a) and (b)(2) of this Section, the functions vested in the President by Section
109 of the Act [42 U.S.C. 9609], relating to violations of
Sections 103(a) and (b), and 122 of the Act [42 U.S.C.
9603(a), (b), 9622], are delegated to the Coast Guard with
respect to any release or threatened release involving
the coastal zone, Great Lakes waters, ports, and harbors.
(3) Subject to subsections (a) and (b)(1) of this section, the functions vested in the President by sections
106(a) [42 U.S.C. 9606(a)] and 122 [42 U.S.C. 9622] (except
subsection (b)(1)) of the Act are delegated to the Secretary of the Interior, the Secretary of Commerce, the
Secretary of Agriculture, the Secretary of Defense, and
the Secretary of Energy, to be exercised only with the
concurrence of the Coast Guard, with respect to any release or threatened release in the coastal zone, Great
Lakes waters, ports, and harbors, affecting (1) natural
resources under their trusteeship, or (2) a vessel or facility subject to their custody, jurisdiction, or control.
Such authority shall not be exercised at any vessel or
facility at which the Coast Guard is the lead Federal
agency for the conduct or oversight of a response action. Such authority shall not be construed to authorize or permit use of the Hazardous Substance Superfund
to implement section 106 or to fund performance of any
response action in lieu of the payment by a person who
receives but does not comply with an order pursuant to
section 106(a), where such order has been issued by the
Secretary of the Interior, the Secretary of Commerce,
the Secretary of Agriculture, the Secretary of Defense,
or the Secretary of Energy. This subsection shall not
be construed to limit any authority delegated by any
other section of this order. Authority granted under
this subsection shall be exercised in a manner to ensure
interagency coordination that enhances efficiency and
effectiveness.
(d)(1) Subject to subsections (a), (b)(1), and (c)(1) of
this Section, the functions vested in the President by
Sections 106 and 122 of the Act [42 U.S.C. 9606, 9622] are
delegated to the Administrator.
(2) Subject to subsections (a), (b)(2), and (c)(2) of this
Section, the functions vested in the President by Section 109 of the Act [42 U.S.C. 9609], relating to violations of Sections 103 and 122 of the Act [42 U.S.C. 9603,
9622], are delegated to the Administrator.
(3) Subject to subsections (a), (b)(1), and (c)(1) of this
section, the functions vested in the President by sections 106(a) [42 U.S.C. 9606(a)] and 122 [42 U.S.C. 9622]
(except subsection (b)(1)) of the Act are delegated to
the Secretary of the Interior, the Secretary of Commerce, the Secretary of Agriculture, the Secretary of
Defense, and the Department of Energy, to be exercised
only with the concurrence of the Administrator, with
respect to any release or threatened release affecting
(1) natural resources under their trusteeship, or (2) a
vessel or facility subject to their custody, jurisdiction,
or control. Such authority shall not be exercised at any
vessel or facility at which the Administrator is the lead
Federal official for the conduct or oversight of a response action. Such authority shall not be construed to

§ 9615

TITLE 42—THE PUBLIC HEALTH AND WELFARE

authorize or permit use of the Hazardous Substance
Superfund to implement section 106 or to fund performance of any response action in lieu of the payment by
a person who receives but does not comply with an
order pursuant to section 106(a), where such order has
been issued by the Secretary of the Interior, the Secretary of Commerce, the Secretary of Agriculture, the
Secretary of Defense, or the Secretary of Energy. This
subsection shall not be construed to limit any authority delegated by any other section of this order. Authority granted under this subsection shall be exercised
in a manner to ensure interagency coordination that
enhances efficiency and effectiveness.
(e) Notwithstanding any other provision of this
Order, the authority under Sections 104(e)(5)(A) and
106(a) of the Act [42 U.S.C. 9604(e)(5)(A), 9606(a)] to seek
information, entry, inspection, samples, or response actions from Executive departments and agencies may be
exercised only with the concurrence of the Attorney
General.
SEC. 5. Liability. (a) The function vested in the President by Section 107(c)(1)(C) of the Act [42 U.S.C.
9607(c)(1)(C)] is delegated to the Secretary of Transportation.
(b) The functions vested in the President by Section
107(c)(3) of the Act are delegated to the Coast Guard
with respect to any release or threatened release involving the coastal zone, Great Lakes waters, ports and
harbors.
(c) Subject to subsection (b) of this Section, the functions vested in the President by Section 107(c)(3) of the
Act are delegated to the Administrator.
(d) The functions vested in the President by Section
107(f)(1) of the Act are delegated to each of the Federal
trustees for natural resources designated in the NCP
for resources under their trusteeship.
(e) The functions vested in the President by Section
107(f)(2)(B) of the Act, to receive notification of the
state natural resource trustee designations, are delegated to the Administrator.
(f) The functions vested in the President by Section
107(o) and (p) of the Act are delegated to the heads of
the Executive departments and agencies, to be exercised in consultation with the Administrator, with respect to releases or threatened releases where either
the release is on or the sole source of the release is
from any facility under the jurisdiction, custody, or
control of those departments and agencies.
(g) Subject to subsection (f) of this Section, the functions vested in the President by Section 107(o) and (p)
of the Act are delegated to the Administrator except
that, with respect to determinations regarding natural
resource restoration, the Administrator shall make
such determinations in consultation with the appropriate Federal natural resource trustee.
SEC. 6. Litigation. (a) Notwithstanding any other provision of this Order, any representation pursuant to or
under this Order in any judicial proceedings shall be by
or through the Attorney General. The conduct and control of all litigation arising under the Act shall be the
responsibility of the Attorney General.
(b) Notwithstanding any other provision of this
Order, the authority under the Act to require the Attorney General to commence litigation is retained by
the President.
(c) The functions vested in the President by Section
113(g) of the Act [42 U.S.C. 9613(g)], to receive notification of a natural resource trustee’s intent to file suit,
are delegated to the heads of Executive departments
and agencies with respect to response actions for which
they have been delegated authority under Section 2 of
this Order. The Administrator shall promulgate procedural regulations for providing such notification.
(d) The functions vested in the President by Sections
[sic] 310(d) and (e) of the Act [42 U.S.C. 9659(d), (e)], relating to promulgation of regulations, are delegated to
the Administrator.
SEC. 7. Financial Responsibility. (a) The functions vested in the President by Section 107(k)(4)(B) of the Act [42
U.S.C. 9607(k)(4)(B)] are delegated to the Secretary of

Page 6868

the Treasury. The Administrator will provide the Secretary with such technical information and assistance
as the Administrator may have available.
(b)(1) The functions vested in the President by Section 108(a)(1) of the Act [42 U.S.C. 9608(a)(1)] are delegated to the Coast Guard.
(2) Subject to Section 4(a) of this Order, the functions
vested in the President by Section 109 of the Act [42
U.S.C. 9609], relating to violations of Section 108(a)(1) of
the Act, are delegated to the Coast Guard.
(c)(1) The functions vested in the President by Section 108(b) of the Act are delegated to the Secretary of
Transportation with respect to all transportation related facilities, including any pipeline, motor vehicle,
rolling stock, or aircraft.
(2) Subject to Section 4(a) of this Order, the functions
vested in the President by Section 109 of the Act, relating to violations of Section 108(a)(3) of the Act, are delegated to the Secretary of Transportation.
(3) Subject to Section 4(a) of this Order, the functions
vested in the President by Section 109 of the Act, relating to violations of Section 108(b) of the Act, are delegated to the Secretary of Transportation with respect
to all transportation related facilities, including any
pipeline, motor vehicle, rolling stock, or aircraft.
(d)(1) Subject to subsection (c)(1) of this Section, the
functions vested in the President by Section 108(a)(4)
and (b) of the Act are delegated to the Administrator.
(2) Subject to Section 4(a) of this Order and subsection (c)(3) of this Section, the functions vested in
the President by Section 109 of the Act, relating to violations of Section 108(a)(4) and (b) of the Act, are delegated to the Administrator.
SEC. 8. Employee Protection and Notice to Injured. (a)
The functions vested in the President by Section 110(e)
of the Act [42 U.S.C. 9610(e)] are delegated to the Administrator.
(b) The functions vested in the President by Section
111(g) of the Act [42 U.S.C. 9611(g)] are delegated to the
Secretaries of Defense and Energy with respect to releases from facilities or vessels under the jurisdiction,
custody or control of their departments, respectively,
including vessels bare-boat chartered and operated.
(c) Subject to subsection (b) of this Section, the functions vested in the President by Section 111(g) of the
Act are delegated to the Administrator.
SEC. 9. Management of the Hazardous Substance Superfund and Claims. (a) The functions vested in the President by Section 111(a) of the Act [42 U.S.C. 9611(a)] are
delegated to the Administrator, subject to the provisions of this Section and other applicable provisions of
this Order.
(b) The Administrator shall transfer to other agencies, from the Hazardous Substance Superfund out of
sums appropriated, such amounts as the Administrator
may determine necessary to carry out the purposes of
the Act. These amounts shall be consistent with the
President’s Budget, within the total approved by the
Congress, unless a revised amount is approved by OMB.
Funds appropriated specifically for the Agency for
Toxic Substances and Disease Registry (‘‘ATSDR’’),
shall be directly transferred to ATSDR, consistent with
fiscally responsible investment of trust fund money.
(c) The Administrator shall chair a budget task force
composed of representatives of Executive departments
and agencies having responsibilities under this Order or
the Act. The Administrator shall also, as part of the
budget request for the Environmental Protection Agency, submit to OMB a budget for the Hazardous Substance Superfund which is based on recommended levels developed by the budget task force. The Administrator may prescribe reporting and other forms, procedures, and guidelines to be used by the agencies of the
Task Force in preparing the budget request, consistent
with budgetary reporting requirements issued by OMB.
The Administrator shall prescribe forms to agency task
force members for reporting the expenditure of funds
on a site specific basis.
(d) The Administrator and each department and agency head to whom funds are provided pursuant to this

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

Section, with respect to funds provided to them, are authorized in accordance with Section 111(f) of the Act [42
U.S.C. 9611(f)] to designate Federal officials who may
obligate such funds.
(e) The functions vested in the President by Section
112 of the Act [42 U.S.C. 9612] are delegated to the Administrator for all claims presented pursuant to Section 111 of the Act.
(f) The functions vested in the President by Section
111(o) of the Act are delegated to the Administrator.
(g) The functions vested in the President by Section
117(e) of the Act [42 U.S.C. 9617(e)] are delegated to the
Administrator, to be exercised in consultation with the
Attorney General.
(h) The functions vested in the President by Section
123 of the Act [42 U.S.C. 9623] are delegated to the Administrator.
(i) Funds from the Hazardous Substance Superfund
may be used, at the discretion of the Administrator or
the Coast Guard, to pay for removal actions for releases or threatened releases from facilities or vessels
under the jurisdiction, custody or control of Executive
departments and agencies but must be reimbursed to
the Hazardous Substance Superfund by such Executive
department or agency.
SEC. 10. Federal Facilities. (a) When necessary, prior to
selection of a remedial action by the Administrator
under Section 120(e)(4)(A) of the Act [42 U.S.C.
9620(e)(4)(A)], Executive agencies shall have the opportunity to present their views to the Administrator
after using the procedures under Section 1–6 of Executive Order No. 12088 of October 13, 1978 [set out as a note
under section 4321 of this title], or any other mutually
acceptable process. Notwithstanding subsection 1–602 of
Executive Order No. 12088, the Director of the Office of
Management and Budget shall facilitate resolution of
any issues.
(b) Executive Order No. 12088 of October 13, 1978, is
amended by renumbering the current Section 1–802 as
Section 1–803 and inserting the following new Section
1–802.
‘‘1–802. Nothing in this Order shall create any right or
benefit, substantive or procedural, enforceable at law
by a party against the United States, its agencies, its
officers, or any person.’’
SEC. 11. General Provisions. (a) The function vested in
the President by Section 101(37) of the Act [42 U.S.C.
9601(37)] is delegated to the Administrator.
(b)(1) The function vested in the President by Section
105(f) of the Act [42 U.S.C. 9605(f)], relating to reporting
on minority participation in contracts, is delegated to
the Administrator.
(2) Subject to paragraph 1 of this subsection, the
functions vested in the President by Section 105(f) of
the Act are delegated to the heads of Executive departments and agencies in order to carry out the functions
delegated to them by this Order. Each Executive department and agency shall provide to the Administrator any requested information on minority contracting for inclusion in the Section 105(f) annual report.
(c) The functions vested in the President by Section
126(c) of the Act [42 U.S.C. 9626(c)] are delegated to the
Administrator, to be exercised in consultation with the
Secretary of the Interior.
(d) The functions vested in the President by Section
301(c) of the Act [42 U.S.C. 9651(c)] are delegated to the
Secretary of the Interior.
(e) Each agency shall have authority to issue such
regulations as may be necessary to carry out the functions delegated to them by this Order.
(f) The performance of any function under this Order
shall be done in consultation with interested Federal
departments and agencies represented on the NRT, as
well as with any other interested Federal agency.
(g) The following functions vested in the President by
the Act which have been delegated or assigned by this
Order may be redelegated to the head of any Executive
department or agency with his consent: functions set
forth in Sections 2 (except subsection (b)), 3, 4(b), 4(c),
4(d), 5(b), 5(c), and 8(c) of this Order.

§ 9616

(h) Executive Order No. 12316 of August 14, 1981, is revoked.
SEC. 12. Brownfields. (a) The functions vested in the
President by Sections 101(39) and (41) and 104(k) of the
Act [42 U.S.C. 9601(39), (41), 9604(k)] are delegated to the
Administrator.
(b) The functions vested in the President by Section
128(b)(1)(B)(ii) of the Act [42 U.S.C. 9628(b)(1)(B)(ii)] are
delegated to the heads of the Executive departments
and agencies, to be exercised in consultation with the
Administrator, with respect to property subject to
their jurisdiction, custody, or control.
(c) The functions vested in the President by Section
128(b)(1)(E) of the Act [42 U.S.C. 9628(b)(1)(E)] are delegated to the heads of Executive departments and agencies in cases where they have acted under subsection
(b) of this Section.
(d) Subject to subsections (b) and (c) of this Section,
the functions vested in the President by Section 128 of
the Act [42 U.S.C. 9628] are delegated to the Administrator.
SEC. 13. Preservation of Authorities. Nothing in this
order shall be construed to impair or otherwise affect
the functions of the Director of the Office of Management and Budget relating to budget, administrative, or
legislative proposals.
SEC. 14. General Provision. This order is intended only
to improve the internal management of the Federal
Government and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the
United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other
person.

§ 9616. Schedules
(a) Assessment and listing of facilities
It shall be a goal of this chapter that, to the
maximum extent practicable—
(1) not later than January 1, 1988, the President shall complete preliminary assessments
of all facilities that are contained (as of October 17, 1986) on the Comprehensive Environmental Response, Compensation, and Liability
Information System (CERCLIS) including in
each assessment a statement as to whether a
site inspection is necessary and by whom it
should be carried out; and
(2) not later than January 1, 1989, the President shall assure the completion of site inspections at all facilities for which the President has stated a site inspection is necessary
pursuant to paragraph (1).
(b) Evaluation
Within 4 years after October 17, 1986, each facility listed (as of October 17, 1986) in the
CERCLIS shall be evaluated if the President determines that such evaluation is warranted on
the basis of a site inspection or preliminary assessment. The evaluation shall be in accordance
with the criteria established in section 9605 of
this title under the National Contingency Plan
for determining priorities among release for inclusion on the National Priorities List. In the
case of a facility listed in the CERCLIS after October 17, 1986, the facility shall be evaluated
within 4 years after the date of such listing if
the President determines that such evaluation
is warranted on the basis of a site inspection or
preliminary assessment.
(c) Explanations
If any of the goals established by subsection
(a) or (b) of this section are not achieved, the

§ 9617

TITLE 42—THE PUBLIC HEALTH AND WELFARE

President shall publish an explanation of why
such action could not be completed by the specified date.
(d) Commencement of RI/FS
The President shall assure that remedial investigations and feasibility studies (RI/FS) are
commenced for facilities listed on the National
Priorities List, in addition to those commenced
prior to October 17, 1986, in accordance with the
following schedule:
(1) not fewer than 275 by the date 36 months
after October 17, 1986, and
(2) if the requirement of paragraph (1) is not
met, not fewer than an additional 175 by the
date 4 years after October 17, 1986, an additional 200 by the date 5 years after October 17,
1986, and a total of 650 by the date 5 years after
October 17, 1986.
(e) Commencement of remedial action
The President shall assure that substantial
and continuous physical on-site remedial action
commences at facilities on the National Priorities List, in addition to those facilities on
which remedial action has commenced prior to
October 17, 1986, at a rate not fewer than:
(1) 175 facilities during the first 36-month period after October 17, 1986; and
(2) 200 additional facilities during the following 24 months after such 36-month period.
(Pub. L. 96–510, title I, § 116, as added Pub. L.
99–499, title I, § 116, Oct. 17, 1986, 100 Stat. 1653.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (a), was in the
original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, which is classified principally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 9601 of this title
and Tables.

§ 9617. Public participation
(a) Proposed plan
Before adoption of any plan for remedial action to be undertaken by the President, by a
State, or by any other person, under section
9604, 9606, 9620, or 9622 of this title, the President
or State, as appropriate, shall take both of the
following actions:
(1) Publish a notice and brief analysis of the
proposed plan and make such plan available to
the public.
(2) Provide a reasonable opportunity for submission of written and oral comments and an
opportunity for a public meeting at or near
the facility at issue regarding the proposed
plan and regarding any proposed findings
under section 9621(d)(4) of this title (relating
to cleanup standards). The President or the
State shall keep a transcript of the meeting
and make such transcript available to the public.
The notice and analysis published under paragraph (1) shall include sufficient information as
may be necessary to provide a reasonable explanation of the proposed plan and alternative proposals considered.
(b) Final plan
Notice of the final remedial action plan adopted shall be published and the plan shall be made

Page 6870

available to the public before commencement of
any remedial action. Such final plan shall be accompanied by a discussion of any significant
changes (and the reasons for such changes) in
the proposed plan and a response to each of the
significant comments, criticisms, and new data
submitted in written or oral presentations under
subsection (a) of this section.
(c) Explanation of differences
After adoption of a final remedial action
plan—
(1) if any remedial action is taken,
(2) if any enforcement action under section
9606 of this title is taken, or
(3) if any settlement or consent decree under
section 9606 of this title or section 9622 of this
title is entered into,
and if such action, settlement, or decree differs
in any significant respects from the final plan,
the President or the State shall publish an explanation of the significant differences and the
reasons such changes were made.
(d) Publication
For the purposes of this section, publication
shall include, at a minimum, publication in a
major local newspaper of general circulation. In
addition, each item developed, received, published, or made available to the public under
this section shall be available for public inspection and copying at or near the facility at issue.
(e) Grants for technical assistance
(1) Authority
Subject to such amounts as are provided in
appropriations Acts and in accordance with
rules promulgated by the President, the President may make grants available to any group
of individuals which may be affected by a release or threatened release at any facility
which is listed on the National Priorities List
under the National Contingency Plan. Such
grants may be used to obtain technical assistance in interpreting information with regard
to the nature of the hazard, remedial investigation and feasibility study, record of decision, remedial design, selection and construction of remedial action, operation and maintenance, or removal action at such facility.
(2) Amount
The amount of any grant under this subsection may not exceed $50,000 for a single
grant recipient. The President may waive the
$50,000 limitation in any case where such waiver is necessary to carry out the purposes of
this subsection. Each grant recipient shall be
required, as a condition of the grant, to contribute at least 20 percent of the total of costs
of the technical assistance for which such
grant is made. The President may waive the 20
percent contribution requirement if the grant
recipient demonstrates financial need and
such waiver is necessary to facilitate public
participation in the selection of remedial action at the facility. Not more than one grant
may be made under this subsection with respect to a single facility, but the grant may be
renewed to facilitate public participation at
all stages of remedial action.
(Pub. L. 96–510, title I, § 117, as added Pub. L.
99–499, title I, § 117, Oct. 17, 1986, 100 Stat. 1654.)

Page 6871

TITLE 42—THE PUBLIC HEALTH AND WELFARE

§ 9618. High priority for drinking water supplies
For purposes of taking action under section
9604 or 9606 of this title and listing facilities on
the National Priorities List, the President shall
give a high priority to facilities where the release of hazardous substances or pollutants or
contaminants has resulted in the closing of
drinking water wells or has contaminated a
principal drinking water supply.
(Pub. L. 96–510, title I, § 118, as added Pub. L.
99–499, title I, § 118(a), Oct. 17, 1986, 100 Stat.
1655.)
§ 9619. Response action contractors
(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.

§ 9619

(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 6301(a)
and (b) 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.

§ 9619

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(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

Page 6872

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;

Page 6873

TITLE 42—THE PUBLIC HEALTH AND WELFARE

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 subgrantees) 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 1
(B) any person who is retained or hired by
a person described in subparagraph (A) to
provide any services relating to a response
action; and
(C) any surety who after October 16, 1990,
provides a bid, performance or payment bond
to a response action contractor, and begins
activities to meet its obligations under such
bond, but only in connection with such activities or obligations.
(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 1949.3 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 sections 3131 and 3133 of title 40,
surety bonds are required for any direct Federal
1 So

in original. The word ‘‘and’’ probably should not appear.
in original. Probably should not be capitalized.
3 See References in Text note below.
2 So

§ 9619

procurement of any response action contract
and are not waived pursuant to section 3134 of
title 40, they shall be issued in accordance with
sections 3131 and 3133 of title 40.
(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.
(Pub. L. 96–510, title I, § 119, as added Pub. L.
99–499, title I, § 119, Oct. 17, 1986, 100 Stat. 1662;
amended Pub. L. 99–514, § 2, Oct. 22, 1986, 100
Stat. 2095; Pub. L. 100–202, § 101(f) [title II, § 201],
Dec. 22, 1987, 101 Stat. 1329–187, 1329–198; Pub. L.
101–584, § 1, Nov. 15, 1990, 104 Stat. 2872; Pub. L.
102–484, div. A, title III, § 331(a), Oct. 23, 1992, 106
Stat. 2373; Pub. L. 105–276, title III, Oct. 21, 1998,
112 Stat. 2497.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (b)(1), (e)(1),
(2)(A)(iii), and (f), was in the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, known as
the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 9601 of this title and Tables.
The Solid Waste Disposal Act, referred to in subsec.
(c)(5)(D), is title II of Pub. L. 89–272, Oct. 20, 1965, 79
Stat. 997, as amended generally by Pub. L. 94–580, § 2,
Oct. 21, 1976, 90 Stat. 2795, which is classified generally
to chapter 82 (§ 6901 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 6901 of this title and Tables.
Section 9660a of this title, referred to in subsec.
(e)(2)(A)(iii), was in the original ‘‘section 126’’ probably
meaning section 126 of Pub. L. 99–499, title I, Oct. 17,
1986, 100 Stat. 1690. Subsecs. (a) to (f) of section 126,
which relate to worker protection standards, are set
out as a note under section 655 of Title 29, Labor. Subsec. (g) of section 126, which relates to grants for train-

§ 9620

TITLE 42—THE PUBLIC HEALTH AND WELFARE

ing and education of workers who are or may be engaged in activities related to hazardous waste removal,
etc., is classified to section 9660a of this title.
The Federal Property and Administrative Services
Act of 1949, referred to in subsec. (f), is act June 30,
1949, ch. 288, 63 Stat. 377. Title IX of the Act, which was
classified generally to subchapter VI (§ 541 et seq.) of
chapter 10 of former Title 40, Public Buildings, Property, and Works, was repealed and reenacted by Pub. L.
107–217, §§ 1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304, as
chapter 11 (§ 1101 et seq.) of Title 40, Public Buildings,
Property, and Works. For disposition of sections of
former Title 40 to revised Title 40, see Table preceding
section 101 of Title 40. For complete classification of
this Act to the Code, see Tables.
CODIFICATION
In subsec. (c)(3), ‘‘section 6301(a) and (b) of title 41’’
substituted for ‘‘section 3732 of the Revised Statutes (41
U.S.C. 11)’’ on authority of Pub. L. 111–350, § 6(c), Jan.
4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public
Contracts.
In subsec. (g)(1), ‘‘sections 3131 and 3133 of title 40’’
substituted for ‘‘the Act of August 24, 1935 (40 U.S.C.
270a–270d), commonly referred to as the ‘Miller Act’ ’’
and for ‘‘such Act of August 24, 1935’’ and ‘‘section 3134
of title 40’’ substituted for ‘‘the Act of April 29, 1941 (40
U.S.C. 270e–270f)’’, on authority of Pub. L. 107–217, § 5(c),
Aug. 21, 2002, 116 Stat. 1303, the first section of which
enacted Title 40, Public Buildings, Property, and
Works.
AMENDMENTS
1998—Subsec. (e)(2)(C). Pub. L. 105–276 struck out ‘‘and
before January 1, 1996,’’ after ‘‘1990,’’.
Subsec. (g)(5). Pub. L. 105–276 struck out ‘‘, or after
December 31, 1995’’ before period at end.
1992—Subsec. (e)(2)(C). Pub. L. 102–484, § 321(a)(1)(A),
substituted ‘‘January 1, 1996,’’ for ‘‘January 1, 1993’’.
Subsec. (g)(1). Pub. L. 102–484, § 331(a)(2), substituted
‘‘the Act of August 24, 1935 (40 U.S.C. 270a–270d), commonly referred to as the ‘Miller Act’,’’ for ‘‘the Miller
Act, 40 U.S.C. sections 270a–270f,’’, inserted ‘‘and are
not waived pursuant to the Act of April 29, 1941 (40
U.S.C. 270e–270f)’’, and substituted ‘‘in accordance with
such Act of August 24, 1935.’’ for ‘‘in accordance with 40
U.S.C. sections 270a–270d.’’
Subsec. (g)(5). Pub. L. 102–484, § 331(a)(1)(B), substituted ‘‘December 31, 1995’’ for ‘‘December 31, 1992’’.
1990—Subsec. (e)(2)(C). Pub. L. 101–584, § 1(1), (2), added
subpar. (C).
Subsec. (g). Pub. L. 101–584, § 1(3), added subsec. (g).
1987—Subsec. (e)(2)(A)(iii). Pub. L. 100–202 added cl.
(iii).
1986—Subsec. (c)(3). Pub. L. 99–514 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue Code
of 1954’’, which for purposes of codification was translated as ‘‘title 26’’ thus requiring no change in text.
COORDINATION OF TITLES I TO IV OF PUB. L. 99–499
Any provision of titles I to IV of Pub. L. 99–499, imposing any tax, premium, or fee; establishing any trust
fund; or authorizing expenditures from any trust fund,
to have no force or effect, see section 531 of Pub. L.
99–499, set out as a note under section 1 of Title 26, Internal Revenue Code.

§ 9620. Federal facilities
(a) Application of chapter to Federal Government
(1) In general
Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with,
this chapter in the same manner and to the
same extent, both procedurally and sub-

Page 6874

stantively, as any nongovernmental entity, including liability under section 9607 of this
title. Nothing in this section shall be construed to affect the liability of any person or
entity under sections 9606 and 9607 of this
title.
(2) Application of requirements to Federal facilities
All guidelines, rules, regulations, and criteria which are applicable to preliminary assessments carried out under this chapter for
facilities at which hazardous substances are
located, applicable to evaluations of such facilities under the National Contingency Plan,
applicable to inclusion on the National Priorities List, or applicable to remedial actions at
such facilities shall also be applicable to facilities which are owned or operated by a department, agency, or instrumentality of the
United States in the same manner and to the
extent as such guidelines, rules, regulations,
and criteria are applicable to other facilities.
No department, agency, or instrumentality of
the United States may adopt or utilize any
such guidelines, rules, regulations, or criteria
which are inconsistent with the guidelines,
rules, regulations, and criteria established by
the Administrator under this chapter.
(3) Exceptions
This subsection shall not apply to the extent
otherwise provided in this section with respect
to applicable time periods. This subsection
shall also not apply to any requirements relating to bonding, insurance, or financial responsibility. Nothing in this chapter shall be construed to require a State to comply with section 9604(c)(3) of this title in the case of a facility which is owned or operated by any department, agency, or instrumentality of the
United States.
(4) State laws
State laws concerning removal and remedial
action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by
a department, agency, or instrumentality of
the United States or facilities that are the
subject of a deferral under subsection (h)(3)(C)
of this section when such facilities are not included on the National Priorities List. The
preceding sentence shall not apply to the extent a State law would apply any standard or
requirement to such facilities which is more
stringent than the standards and requirements
applicable to facilities which are not owned or
operated by any such department, agency, or
instrumentality.
(b) Notice
Each department, agency, and instrumentality of the United States shall add to the inventory of Federal agency hazardous waste facilities required to be submitted under section 3016
of the Solid Waste Disposal Act [42 U.S.C. 6937]
(in addition to the information required under
section 3016(a)(3) of such Act [42 U.S.C.
6937(a)(3)]) information on contamination from
each facility owned or operated by the department, agency, or instrumentality if such con-

Page 6875

TITLE 42—THE PUBLIC HEALTH AND WELFARE

tamination affects contiguous or adjacent property owned by the department, agency, or instrumentality or by any other person, including
a description of the monitoring data obtained.
(c) Federal Agency Hazardous Waste Compliance
Docket
The Administrator shall establish a special
Federal Agency Hazardous Waste Compliance
Docket (hereinafter in this section referred to as
the ‘‘docket’’) which shall contain each of the
following:
(1) All information submitted under section
3016 of the Solid Waste Disposal Act [42 U.S.C.
6937] and subsection (b) of this section regarding any Federal facility and notice of each
subsequent action taken under this chapter
with respect to the facility.
(2) Information submitted by each department, agency, or instrumentality of the
United States under section 3005 or 3010 of
such Act [42 U.S.C. 6925, 6930].
(3) Information submitted by the department, agency, or instrumentality under section 9603 of this title.
The docket shall be available for public inspection at reasonable times. Six months after establishment of the docket and every 6 months
thereafter, the Administrator shall publish in
the Federal Register a list of the Federal facilities which have been included in the docket during the immediately preceding 6-month period.
Such publication shall also indicate where in
the appropriate regional office of the Environmental Protection Agency additional information may be obtained with respect to any facility on the docket. The Administrator shall establish a program to provide information to the
public with respect to facilities which are included in the docket under this subsection.
(d) Assessment and evaluation
(1) In general
The Administrator shall take steps to assure
that a preliminary assessment is conducted
for each facility on the docket. Following such
preliminary assessment, the Administrator
shall, where appropriate—
(A) evaluate such facilities in accordance
with the criteria established in accordance
with section 9605 of this title under the National Contingency Plan for determining priorities among releases; and
(B) include such facilities on the National
Priorities List maintained under such plan if
the facility meets such criteria.
(2) Application of criteria
(A) In general
Subject to subparagraph (B), the criteria
referred to in paragraph (1) shall be applied
in the same manner as the criteria are applied to facilities that are owned or operated
by persons other than the United States.
(B) Response under other law
It shall be an appropriate factor to be
taken into consideration for the purposes of
section 9605(a)(8)(A) of this title that the
head of the department, agency, or instrumentality that owns or operates a facility

§ 9620

has arranged with the Administrator or appropriate State authorities to respond appropriately, under authority of a law other
than this chapter, to a release or threatened
release of a hazardous substance.
(3) Completion
Evaluation and listing under this subsection
shall be completed in accordance with a reasonable schedule established by the Administrator.
(e) Required action by department
(1) RI/FS
Not later than 6 months after the inclusion
of any facility on the National Priorities List,
the department, agency, or instrumentality
which owns or operates such facility shall, in
consultation with the Administrator and appropriate State authorities, commence a remedial investigation and feasibility study for
such facility. In the case of any facility which
is listed on such list before October 17, 1986,
the department, agency, or instrumentality
which owns or operates such facility shall, in
consultation with the Administrator and appropriate State authorities, commence such
an investigation and study for such facility
within one year after October 17, 1986. The Administrator and appropriate State authorities
shall publish a timetable and deadlines for expeditious completion of such investigation and
study.
(2) Commencement of remedial action; interagency agreement
The Administrator shall review the results
of each investigation and study conducted as
provided in paragraph (1). Within 180 days
thereafter, the head of the department, agency, or instrumentality concerned shall enter
into an interagency agreement with the Administrator for the expeditious completion by
such department, agency, or instrumentality
of all necessary remedial action at such facility. Substantial continuous physical onsite remedial action shall be commenced at each facility not later than 15 months after completion of the investigation and study. All such
interagency agreements, including review of
alternative remedial action plans and selection of remedial action, shall comply with the
public participation requirements of section
9617 of this title.
(3) Completion of remedial actions
Remedial actions at facilities subject to
interagency agreements under this section
shall be completed as expeditiously as practicable. Each agency shall include in its annual budget submissions to the Congress a review of alternative agency funding which
could be used to provide for the costs of remedial action. The budget submission shall also
include a statement of the hazard posed by the
facility to human health, welfare, and the environment and identify the specific consequences of failure to begin and complete remedial action.
(4) Contents of agreement
Each interagency agreement under this subsection shall include, but shall not be limited
to, each of the following:

§ 9620

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(A) A review of alternative remedial actions and selection of a remedial action by
the head of the relevant department, agency,
or instrumentality and the Administrator
or, if unable to reach agreement on selection
of a remedial action, selection by the Administrator.
(B) A schedule for the completion of each
such remedial action.
(C) Arrangements for long-term operation
and maintenance of the facility.
(5) Annual report
Each department, agency, or instrumentality responsible for compliance with this section shall furnish an annual report to the Congress concerning its progress in implementing
the requirements of this section. Such reports
shall include, but shall not be limited to, each
of the following items:
(A) A report on the progress in reaching
interagency agreements under this section.
(B) The specific cost estimates and budgetary proposals involved in each interagency
agreement.
(C) A brief summary of the public comments regarding each proposed interagency
agreement.
(D) A description of the instances in which
no agreement was reached.
(E) A report on progress in conducting investigations and studies under paragraph (1).
(F) A report on progress in conducting remedial actions.
(G) A report on progress in conducting remedial action at facilities which are not listed on the National Priorities List.
With respect to instances in which no agreement was reached within the required time period, the department, agency, or instrumentality filing the report under this paragraph shall
include in such report an explanation of the
reasons why no agreement was reached. The
annual report required by this paragraph shall
also contain a detailed description on a Stateby-State basis of the status of each facility
subject to this section, including a description
of the hazard presented by each facility, plans
and schedules for initiating and completing response action, enforcement status (where appropriate), and an explanation of any postponements or failure to complete response action. Such reports shall also be submitted to
the affected States.
(6) Settlements with other parties
If the Administrator, in consultation with
the head of the relevant department, agency,
or instrumentality of the United States, determines that remedial investigations and feasibility studies or remedial action will be done
properly at the Federal facility by another potentially responsible party within the deadlines provided in paragraphs (1), (2), and (3) of
this subsection, the Administrator may enter
into an agreement with such party under section 9622 of this title (relating to settlements).
Following approval by the Attorney General
of any such agreement relating to a remedial
action, the agreement shall be entered in the
appropriate United States district court as a
consent decree under section 9606 of this title.

Page 6876

(f) State and local participation
The Administrator and each department,
agency, or instrumentality responsible for compliance with this section shall afford to relevant
State and local officials the opportunity to participate in the planning and selection of the remedial action, including but not limited to the
review of all applicable data as it becomes available and the development of studies, reports,
and action plans. In the case of State officials,
the opportunity to participate shall be provided
in accordance with section 9621 of this title.
(g) Transfer of authorities
Except for authorities which are delegated by
the Administrator to an officer or employee of
the Environmental Protection Agency, no authority vested in the Administrator under this
section may be transferred, by executive order
of the President or otherwise, to any other officer or employee of the United States or to any
other person.
(h) Property transferred by Federal agencies
(1) Notice
After the last day of the 6-month period beginning on the effective date of regulations
under paragraph (2) of this subsection, whenever any department, agency, or instrumentality of the United States enters into any contract for the sale or other transfer of real
property which is owned by the United States
and on which any hazardous substance was
stored for one year or more, known to have
been released, or disposed of, the head of such
department, agency, or instrumentality shall
include in such contract notice of the type and
quantity of such hazardous substance and notice of the time at which such storage, release,
or disposal took place, to the extent such information is available on the basis of a complete search of agency files.
(2) Form of notice; regulations
Notice under this subsection shall be provided in such form and manner as may be provided in regulations promulgated by the Administrator. As promptly as practicable after
October 17, 1986, but not later than 18 months
after October 17, 1986, and after consultation
with the Administrator of the General Services Administration, the Administrator shall
promulgate regulations regarding the notice
required to be provided under this subsection.
(3) Contents of certain deeds
(A) In general
After the last day of the 6-month period
beginning on the effective date of regulations under paragraph (2) of this subsection,
in the case of any real property owned by
the United States on which any hazardous
substance was stored for one year or more,
known to have been released, or disposed of,
each deed entered into for the transfer of
such property by the United States to any
other person or entity shall contain—
(i) to the extent such information is
available on the basis of a complete search
of agency files—
(I) a notice of the type and quantity of
such hazardous substances,

Page 6877

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(II) notice of the time at which such
storage, release, or disposal took place,
and
(III) a description of the remedial action taken, if any;
(ii) a covenant warranting that—
(I) all remedial action necessary to
protect human health and the environment with respect to any such substance
remaining on the property has been
taken before the date of such transfer,
and
(II) any additional remedial action
found to be necessary after the date of
such transfer shall be conducted by the
United States; and
(iii) a clause granting the United States
access to the property in any case in which
remedial action or corrective action is
found to be necessary after the date of
such transfer.
(B) Covenant requirements
For purposes of subparagraphs (A)(ii)(I)
and (C)(iii), all remedial action described in
such subparagraph has been taken if the construction and installation of an approved remedial design has been completed, and the
remedy has been demonstrated to the Administrator to be operating properly and
successfully. The carrying out of long-term
pumping and treating, or operation and
maintenance, after the remedy has been
demonstrated to the Administrator to be operating properly and successfully does not
preclude the transfer of the property. The requirements of subparagraph (A)(ii) shall not
apply in any case in which the person or entity to whom the real property is transferred
is a potentially responsible party with respect to such property. The requirements of
subparagraph (A)(ii) shall not apply in any
case in which the transfer of the property
occurs or has occurred by means of a lease,
without regard to whether the lessee has
agreed to purchase the property or whether
the duration of the lease is longer than 55
years. In the case of a lease entered into
after September 30, 1995, with respect to real
property located at an installation approved
for closure or realignment under a base closure law, the agency leasing the property, in
consultation with the Administrator, shall
determine before leasing the property that
the property is suitable for lease, that the
uses contemplated for the lease are consistent with protection of human health and the
environment, and that there are adequate
assurances that the United States will take
all remedial action referred to in subparagraph (A)(ii) that has not been taken on the
date of the lease.
(C) Deferral
(i) In general
The Administrator, with the concurrence
of the Governor of the State in which the
facility is located (in the case of real property at a Federal facility that is listed on
the National Priorities List), or the Gov-

§ 9620

ernor of the State in which the facility is
located (in the case of real property at a
Federal facility not listed on the National
Priorities List) may defer the requirement
of subparagraph (A)(ii)(I) with respect to
the property if the Administrator or the
Governor, as the case may be, determines
that the property is suitable for transfer,
based on a finding that—
(I) the property is suitable for transfer
for the use intended by the transferee,
and the intended use is consistent with
protection of human health and the environment;
(II) the deed or other agreement proposed to govern the transfer between the
United States and the transferee of the
property contains the assurances set
forth in clause (ii);
(III) the Federal agency requesting deferral has provided notice, by publication in a newspaper of general circulation in the vicinity of the property, of
the proposed transfer and of the opportunity for the public to submit, within a
period of not less than 30 days after the
date of the notice, written comments on
the suitability of the property for transfer; and
(IV) the deferral and the transfer of the
property will not substantially delay any
necessary response action at the property.
(ii) Response action assurances
With regard to a release or threatened
release of a hazardous substance for which
a Federal agency is potentially responsible
under this section, the deed or other agreement proposed to govern the transfer shall
contain assurances that—
(I) provide for any necessary restrictions on the use of the property to ensure the protection of human health and
the environment;
(II) provide that there will be restrictions on use necessary to ensure that required remedial investigations, response
action, and oversight activities will not
be disrupted;
(III) provide that all necessary response action will be taken and identify
the schedules for investigation and completion of all necessary response action
as approved by the appropriate regulatory agency; and
(IV) provide that the Federal agency
responsible for the property subject to
transfer will submit a budget request to
the Director of the Office of Management
and Budget that adequately addresses
schedules for investigation and completion of all necessary response action,
subject to congressional authorizations
and appropriations.
(iii) Warranty
When all response action necessary to
protect human health and the environment with respect to any substance remaining on the property on the date of
transfer has been taken, the United States

§ 9620

TITLE 42—THE PUBLIC HEALTH AND WELFARE

shall execute and deliver to the transferee
an appropriate document containing a
warranty that all such response action has
been taken, and the making of the warranty shall be considered to satisfy the requirement of subparagraph (A)(ii)(I).
(iv) Federal responsibility
A deferral under this subparagraph shall
not increase, diminish, or affect in any
manner any rights or obligations of a Federal agency (including any rights or obligations under this section and sections
9606 and 9607 of this title existing prior to
transfer) with respect to a property transferred under this subparagraph.
(4) Identification of uncontaminated property
(A) In the case of real property to which this
paragraph applies (as set forth in subparagraph (E)), the head of the department, agency, or instrumentality of the United States
with jurisdiction over the property shall identify the real property on which no hazardous
substances and no petroleum products or their
derivatives were known to have been released
or disposed of. Such identification shall be
based on an investigation of the real property
to determine or discover the obviousness of
the presence or likely presence of a release or
threatened release of any hazardous substance
or any petroleum product or its derivatives,
including aviation fuel and motor oil, on the
real property. The identification shall consist,
at a minimum, of a review of each of the following sources of information concerning the
current and previous uses of the real property:
(i) A detailed search of Federal Government records pertaining to the property.
(ii) Recorded chain of title documents regarding the real property.
(iii) Aerial photographs that may reflect
prior uses of the real property and that are
reasonably obtainable through State or local
government agencies.
(iv) A visual inspection of the real property and any buildings, structures, equipment, pipe, pipeline, or other improvements
on the real property, and a visual inspection
of properties immediately adjacent to the
real property.
(v) A physical inspection of property adjacent to the real property, to the extent permitted by owners or operators of such property.
(vi) Reasonably obtainable Federal, State,
and local government records of each adjacent facility where there has been a release
of any hazardous substance or any petroleum product or its derivatives, including
aviation fuel and motor oil, and which is
likely to cause or contribute to a release or
threatened release of any hazardous substance or any petroleum product or its derivatives, including aviation fuel and motor
oil, on the real property.
(vii) Interviews with current or former employees involved in operations on the real
property.
Such identification shall also be based on sampling, if appropriate under the circumstances.

Page 6878

The results of the identification shall be provided immediately to the Administrator and
State and local government officials and made
available to the public.
(B) The identification required under subparagraph (A) is not complete until concurrence in the results of the identification is obtained, in the case of real property that is part
of a facility on the National Priorities List,
from the Administrator, or, in the case of real
property that is not part of a facility on the
National Priorities List, from the appropriate
State official. In the case of a concurrence
which is required from a State official, the
concurrence is deemed to be obtained if, within 90 days after receiving a request for the
concurrence, the State official has not acted
(by either concurring or declining to concur)
on the request for concurrence.
(C)(i) Except as provided in clauses (ii), (iii),
and (iv), the identification and concurrence required under subparagraphs (A) and (B), respectively, shall be made at least 6 months before the termination of operations on the real
property.
(ii) In the case of real property described in
subparagraph (E)(i)(II) on which operations
have been closed or realigned or scheduled for
closure or realignment pursuant to a base closure law described in subparagraph (E)(ii)(I) or
(E)(ii)(II) by October 19, 1992, the identification and concurrence required under subparagraphs (A) and (B), respectively, shall be made
not later than 18 months after October 19, 1992.
(iii) In the case of real property described in
subparagraph (E)(i)(II) on which operations
are closed or realigned or become scheduled
for closure or realignment pursuant to the
base closure law described in subparagraph
(E)(ii)(II) after October 19, 1992, the identification and concurrence required under subparagraphs (A) and (B), respectively, shall be made
not later than 18 months after the date by
which a joint resolution disapproving the closure or realignment of the real property under
section 2904(b) of such base closure law must
be enacted, and such a joint resolution has not
been enacted.
(iv) In the case of real property described in
subparagraphs (E)(i)(II) on which operations
are closed or realigned pursuant to a base closure law described in subparagraph (E)(ii)(III)
or (E)(ii)(IV), the identification and concurrence required under subparagraphs (A) and
(B), respectively, shall be made not later than
18 months after the date on which the real
property is selected for closure or realignment
pursuant to such a base closure law.
(D) In the case of the sale or other transfer
of any parcel of real property identified under
subparagraph (A), the deed entered into for
the sale or transfer of such property by the
United States to any other person or entity
shall contain—
(i) a covenant warranting that any response action or corrective action found to
be necessary after the date of such sale or
transfer shall be conducted by the United
States; and
(ii) a clause granting the United States access to the property in any case in which a

Page 6879

TITLE 42—THE PUBLIC HEALTH AND WELFARE

response action or corrective action is found
to be necessary after such date at such property, or such access is necessary to carry out
a response action or corrective action on adjoining property.
(E)(i) This paragraph applies to—
(I) real property owned by the United
States and on which the United States plans
to terminate Federal Government operations, other than real property described in
subclause (II); and
(II) real property that is or has been used
as a military installation and on which the
United States plans to close or realign military operations pursuant to a base closure
law.
(ii) For purposes of this paragraph, the term
‘‘base closure law’’ includes the following:
(I) Title II of the Defense Authorization
Amendments and Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C. 2687
note).
(II) The Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of
Public Law 101–510; 10 U.S.C. 2687 note).
(III) Section 2687 of title 10.
(IV) Any provision of law authorizing the
closure or realignment of a military installation enacted on or after October 19, 1992.
(F) Nothing in this paragraph shall affect,
preclude, or otherwise impair the termination
of Federal Government operations on real
property owned by the United States.
(5) Notification of States regarding certain
leases
In the case of real property owned by the
United States, on which any hazardous substance or any petroleum product or its derivatives (including aviation fuel and motor oil)
was stored for one year or more, known to
have been released, or disposed of, and on
which the United States plans to terminate
Federal Government operations, the head of
the department, agency, or instrumentality of
the United States with jurisdiction over the
property shall notify the State in which the
property is located of any lease entered into
by the United States that will encumber the
property beyond the date of termination of operations on the property. Such notification
shall be made before entering into the lease
and shall include the length of the lease, the
name of person to whom the property is
leased, and a description of the uses that will
be allowed under the lease of the property and
buildings and other structures on the property.
(i) Obligations under Solid Waste Disposal Act
Nothing in this section shall affect or impair
the obligation of any department, agency, or instrumentality of the United States to comply
with any requirement of the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] (including corrective action requirements).
(j) National security
(1) Site specific Presidential orders
The President may issue such orders regarding response actions at any specified site or fa-

§ 9620

cility of the Department of Energy or the Department of Defense as may be necessary to
protect the national security interests of the
United States at that site or facility. Such orders may include, where necessary to protect
such interests, an exemption from any requirement contained in this subchapter or
under title III of the Superfund Amendments
and Reauthorization Act of 1986 [42 U.S.C.
11001 et seq.] with respect to the site or facility concerned. The President shall notify the
Congress within 30 days of the issuance of an
order under this paragraph providing for any
such exemption. Such notification shall include a statement of the reasons for the granting of the exemption. An exemption under this
paragraph shall be for a specified period which
may not exceed one year. Additional exemptions may be granted, each upon the President’s issuance of a new order under this paragraph for the site or facility concerned. Each
such additional exemption shall be for a specified period which may not exceed one year. It
is the intention of the Congress that whenever
an exemption is issued under this paragraph
the response action shall proceed as expeditiously as practicable. The Congress shall be
notified periodically of the progress of any response action with respect to which an exemption has been issued under this paragraph. No
exemption shall be granted under this paragraph due to lack of appropriation unless the
President shall have specifically requested
such appropriation as a part of the budgetary
process and the Congress shall have failed to
make available such requested appropriation.
(2) Classified information
Notwithstanding any other provision of law,
all requirements of the Atomic Energy Act [42
U.S.C. 2011 et seq.] and all Executive orders
concerning the handling of restricted data and
national security information, including
‘‘need to know’’ requirements, shall be applicable to any grant of access to classified information under the provisions of this chapter or
under title III of the Superfund Amendments
and Reauthorization Act of 1986 [42 U.S.C.
11001 et seq.].
(Pub. L. 96–510, title I, § 120, as added Pub. L.
99–499, title I, § 120(a), Oct. 17, 1986, 100 Stat. 1666;
amended Pub. L. 102–426, §§ 3–5, Oct. 19, 1992, 106
Stat. 2175–2177; Pub. L. 104–106, div. B, title
XXVIII, § 2834, Feb. 10, 1996, 110 Stat. 559; Pub. L.
104–201, div. A, title III, §§ 330, 331, 334, Sept. 23,
1996, 110 Stat. 2484, 2486.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a)(1) to (3),
(c)(1), (d)(2)(B), and (j)(2), was in the original ‘‘this
Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767,
known as the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note
set out under section 9601 of this title and Tables.
Section 2904(b) of such base closure law, referred to in
subsec. (h)(4)(C)(iii), means section 2904(b) of Pub. L.
101–510, which is set out as a note under section 2687 of
Title 10, Armed Forces.
The Solid Waste Disposal Act, referred to in subsec.
(i), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997,

§ 9620

TITLE 42—THE PUBLIC HEALTH AND WELFARE

as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976,
90 Stat. 2795, which is classified generally to chapter 82
(§ 6901 et seq.) of this title. For complete classification
of this Act to the Code, see Short Title note set out
under section 6901 of this title and Tables.
Title III of the Superfund Amendments and Reauthorization Act of 1986, referred to in subsec. (j), is title
III of Pub. L. 99–499, Oct. 17, 1986, 100 Stat. 1728, known
as the Emergency Planning and Community Right-ToKnow Act of 1986, which is classified generally to chapter 116 (§ 11001 et seq.) of this title. For complete classification of title III to the Code, see Short Title note set
out under section 11001 of this title and Tables.
The Atomic Energy Act, referred to in subsec. (j)(2),
probably means the Atomic Energy Act of 1954, act
Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch.
1073, § 1, 68 Stat. 919, which is classified principally to
chapter 23 (§ 2011 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 2011 of this title and Tables.
AMENDMENTS
1996—Subsec. (a)(4). Pub. L. 104–201, § 334(b), inserted
‘‘or facilities that are the subject of a deferral under
subsection (h)(3)(C) of this section’’ after ‘‘United
States’’.
Subsec. (d). Pub. L. 104–201, § 330(2)–(4), designated existing provisions as par. (1), inserted par. heading, substituted ‘‘The Administrator’’ for ‘‘Not later than 18
months after October 17, 1986, the Administrator’’, realigned margins of par. (1) and subpars. (A) and (B), and
substituted pars. (2) and (3) for ‘‘Such criteria shall be
applied in the same manner as the criteria are applied
to facilities which are owned or operated by other persons. Evaluation and listing under this subsection shall
be completed not later than 30 months after October 17,
1986. Upon the receipt of a petition from the Governor
of any State, the Administrator shall make such an
evaluation of any facility included in the docket.’’
Pub. L. 104–201, § 330(1), redesignated pars. (1) and (2)
as subpars. (A) and (B), respectively.
Subsec. (h)(3). Pub. L. 104–201, § 334(a)(8), added subpar. (C).
Pub. L. 104–201, § 334(a)(6), (7), designated existing provisions as subpar. (B), inserted heading, substituted
‘‘For purposes of subparagraphs (A)(ii)(I) and (C)(iii)’’
for ‘‘For purposes of subparagraph (B)(i)’’, and substituted ‘‘subparagraph (A)(ii)’’ for ‘‘subparagraph (B)’’
in three places.
Pub. L. 104–201, § 334(a)(1)–(5), designated first sentence as subpar. (A), inserted heading, redesignated
former subpar. (A) and cls. (i) to (iii) of that subpar. as
cl. (i) of subpar. (A) and subcls. (I) to (III) of that cl.,
respectively, redesignated former subpar. (B) and cls.
(i) and (ii) of that subpar. as cl. (ii) of subpar. (A) and
subcls. (I) and (II) of that cl., respectively, redesignated
former subpar. (C) as cl. (iii) of subpar. (A), and realigned margins of such cls. and subcls.
Pub. L. 104–106, § 2834(2), which directed that par. (3)
be amended in the matter following subpar. (C) by adding at the end, flush to the paragraph margin, the following, was executed by inserting the following provision at the end of the concluding provisions ‘‘The requirements of subparagraph (B) shall not apply in any
case in which the person or entity to whom the real
property is transferred is a potentially responsible
party with respect to such property. The requirements
of subparagraph (B) shall not apply in any case in
which the transfer of the property occurs or has occurred by means of a lease, without regard to whether
the lessee has agreed to purchase the property or
whether the duration of the lease is longer than 55
years. In the case of a lease entered into after September 30, 1995, with respect to real property located at an
installation approved for closure or realignment under
a base closure law, the agency leasing the property, in
consultation with the Administrator, shall determine
before leasing the property that the property is suitable for lease, that the uses contemplated for the lease
are consistent with protection of human health and the

Page 6880

environment, and that there are adequate assurances
that the United States will take all remedial action referred to in subparagraph (B) that has not been taken
on the date of the lease.’’
Pub. L. 104–106, § 2834(1), struck out first sentence of
concluding provisions which read as follows: ‘‘The requirements of subparagraph (B) shall not apply in any
case in which the person or entity to whom the property is transferred is a potentially responsible party
with respect to such real property.’’
Subsec. (h)(4)(A). Pub. L. 104–201, § 331, substituted
‘‘known to have been released’’ for ‘‘stored for one year
or more, known to have been released,’’.
1992—Subsec. (h)(3). Pub. L. 102–426, § 4(a), inserted at
end ‘‘For purposes of subparagraph (B)(i), all remedial
action described in such subparagraph has been taken
if the construction and installation of an approved remedial design has been completed, and the remedy has
been demonstrated to the Administrator to be operating properly and successfully. The carrying out of longterm pumping and treating, or operation and maintenance, after the remedy has been demonstrated to the
Administrator to be operating properly and successfully does not preclude the transfer of the property.’’
Subsec. (h)(3)(C). Pub. L. 102–426, § 4(b), added subpar.
(C).
Subsec. (h)(4). Pub. L. 102–426, § 3, added par. (4).
Subsec. (h)(5). Pub. L. 102–426, § 5, added par. (5).
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
of law requiring submittal to Congress of any annual,
semiannual, or other regular periodic report listed in
House Document No. 103–7 (in which a report required
under subsec. (e)(5) of this section is listed as the 5th
item on page 151), see section 3003 of Pub. L. 104–66, as
amended, and section 1(a)(4) [div. A, § 1402(1)] of Pub. L.
106–554, set out as notes under section 1113 of Title 31,
Money and Finance.
IDENTIFICATION OF UNCONTAMINATED PROPERTY AT
INSTALLATIONS TO BE CLOSED
Pub. L. 103–160, div. B, title XXIX, § 2910, Nov. 30, 1993,
107 Stat. 1924, provided that: ‘‘The identification by the
Secretary of Defense required under section 120(h)(4)(A)
of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9620(h)(4)(A)), and the concurrence required under section 120(h)(4)(B) of such Act, shall be made not later
than the earlier of—
‘‘(1) the date that is 9 months after the date of the
submittal, if any, to the transition coordinator for
the installation concerned of a specific use proposed
for all or a portion of the real property of the installation; or
‘‘(2) the date specified in section 120(h)(4)(C)(iii) of
such Act.’’
CONGRESSIONAL FINDINGS
Pub. L. 102–426, § 2, Oct. 19, 1992, 106 Stat. 2174, provided that: ‘‘The Congress finds the following:
‘‘(1) The closure of certain Federal facilities is having adverse effects on the economies of local communities by eliminating jobs associated with such facilities, and delay in remediation of environmental contamination of real property at such facilities is preventing transfer and private development of such
property.
‘‘(2) Each department, agency, or instrumentality
of the United States, in cooperation with local communities, should expeditiously identify real property
that offers the greatest opportunity for reuse and redevelopment on each facility under the jurisdiction
of the department, agency, or instrumentality where
operations are terminating.
‘‘(3) Remedial actions, including remedial investigations and feasibility studies, and corrective actions at such Federal facilities should be expedited in
a manner to facilitate environmental protection and

Page 6881

TITLE 42—THE PUBLIC HEALTH AND WELFARE

the sale or transfer of such excess real property for
the purpose of mitigating adverse economic effects on
the surrounding community.
‘‘(4) Each department, agency, or instrumentality
of the United States, in accordance with applicable
law, should make available without delay such excess
real property.
‘‘(5) In the case of any real property owned by the
United States and transferred to another person, the
United States Government should remain responsible
for conducting any remedial action or corrective action necessary to protect human health and the environment with respect to any hazardous substance or
petroleum product or its derivatives, including aviation fuel and motor oil, that was present on such real
property at the time of transfer.’’
APPLICABILITY
Pub. L. 99–499, title I, § 120(b), Oct. 17, 1986, 100 Stat.
1671, provided that: ‘‘Section 120 of CERCLA [42 U.S.C.
9620] shall not apply to any response action or remedial
action for which a plan is under development by the
Department of Energy on the date of enactment of this
Act [Oct. 17, 1986] with respect to facilities—
‘‘(1) owned or operated by the United States and
subject to the jurisdiction of such Department;
‘‘(2) located in St. Charles and St. Louis counties,
Missouri, or the city of St. Louis, Missouri, and
‘‘(3) published in the National Priorities List.
In preparing such plans, the Secretary of Energy shall
consult with the Administrator of the Environmental
Protection Agency.’’

§ 9621. Cleanup standards
(a) Selection of remedial action
The President shall select appropriate remedial actions determined to be necessary to be
carried out under section 9604 of this title or secured under section 9606 of this title which are
in accordance with this section and, to the extent practicable, the national contingency plan,
and which provide for cost-effective response. In
evaluating the cost effectiveness of proposed alternative remedial actions, the President shall
take into account the total short- and long-term
costs of such actions, including the costs of operation and maintenance for the entire period
during which such activities will be required.
(b) General rules
(1) Remedial actions in which treatment which
permanently and significantly reduces the volume, toxicity or mobility of the hazardous substances, pollutants, and contaminants is a principal element, are to be preferred over remedial
actions not involving such treatment. The offsite transport and disposal of hazardous substances or contaminated materials without such
treatment should be the least favored alternative remedial action where practicable treatment technologies are available. The President
shall conduct an assessment of permanent solutions and alternative treatment technologies or
resource recovery technologies that, in whole or
in part, will result in a permanent and significant decrease in the toxicity, mobility, or volume of the hazardous substance, pollutant, or
contaminant. In making such assessment, the
President shall specifically address the longterm effectiveness of various alternatives. In assessing alternative remedial actions, the President shall, at a minimum, take into account:
(A) the long-term uncertainties associated
with land disposal;

§ 9621

(B) the goals, objectives, and requirements
of the Solid Waste Disposal Act [42 U.S.C. 6901
et seq.];
(C) the persistence, toxicity, mobility, and
propensity to bioaccumulate of such hazardous substances and their constituents;
(D) short- and long-term potential for adverse health effects from human exposure;
(E) long-term maintenance costs;
(F) the potential for future remedial action
costs if the alternative remedial action in
question were to fail; and
(G) the potential threat to human health
and the environment associated with excavation, transportation, and redisposal, or containment.
The President shall select a remedial action
that is protective of human health and the environment, that is cost effective, and that utilizes
permanent solutions and alternative treatment
technologies or resource recovery technologies
to the maximum extent practicable. If the President selects a remedial action not appropriate
for a preference under this subsection, the President shall publish an explanation as to why a remedial action involving such reductions was not
selected.
(2) The President may select an alternative remedial action meeting the objectives of this
subsection whether or not such action has been
achieved in practice at any other facility or site
that has similar characteristics. In making such
a selection, the President may take into account the degree of support for such remedial
action by parties interested in such site.
(c) Review
If the President selects a remedial action that
results in any hazardous substances, pollutants,
or contaminants remaining at the site, the
President shall review such remedial action no
less often than each 5 years after the initiation
of such remedial action to assure that human
health and the environment are being protected
by the remedial action being implemented. In
addition, if upon such review it is the judgment
of the President that action is appropriate at
such site in accordance with section 9604 or 9606
of this title, the President shall take or require
such action. The President shall report to the
Congress a list of facilities for which such review is required, the results of all such reviews,
and any actions taken as a result of such reviews.
(d) Degree of cleanup
(1) Remedial actions selected under this section or otherwise required or agreed to by the
President under this chapter shall attain a degree of cleanup of hazardous substances, pollutants, and contaminants released into the environment and of control of further release at a
minimum which assures protection of human
health and the environment. Such remedial actions shall be relevant and appropriate under
the circumstances presented by the release or
threatened release of such substance, pollutant,
or contaminant.
(2)(A) With respect to any hazardous substance, pollutant or contaminant that will remain onsite, if—

§ 9621

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(i) any standard, requirement, criteria, or
limitation under any Federal environmental
law, including, but not limited to, the Toxic
Substances Control Act [15 U.S.C. 2601 et seq.],
the Safe Drinking Water Act [42 U.S.C. 300f et
seq.], the Clean Air Act [42 U.S.C. 7401 et seq.],
the Clean Water Act [33 U.S.C. 1251 et seq.],
the Marine Protection, Research and Sanctuaries Act [16 U.S.C. 1431 et seq., 1447 et seq.,
33 U.S.C. 1401 et seq., 2801 et seq.], or the Solid
Waste Disposal Act [42 U.S.C. 6901 et seq.]; or
(ii) any promulgated standard, requirement,
criteria, or limitation under a State environmental or facility siting law that is more
stringent than any Federal standard, requirement, criteria, or limitation, including each
such State standard, requirement, criteria, or
limitation contained in a program approved,
authorized or delegated by the Administrator
under a statute cited in subparagraph (A), and
that has been identified to the President by
the State in a timely manner,
is legally applicable to the hazardous substance
or pollutant or contaminant concerned or is relevant and appropriate under the circumstances
of the release or threatened release of such hazardous substance or pollutant or contaminant,
the remedial action selected under section 9604
of this title or secured under section 9606 of this
title shall require, at the completion of the remedial action, a level or standard of control for
such hazardous substance or pollutant or contaminant which at least attains such legally applicable or relevant and appropriate standard,
requirement, criteria, or limitation. Such remedial action shall require a level or standard of
control which at least attains Maximum Contaminant Level Goals established under the Safe
Drinking Water Act [42 U.S.C. 300f et seq.] and
water quality criteria established under section
304 or 303 of the Clean Water Act [33 U.S.C. 1314,
1313], where such goals or criteria are relevant
and appropriate under the circumstances of the
release or threatened release.
(B)(i) In determining whether or not any water
quality criteria under the Clean Water Act [33
U.S.C. 1251 et seq.] is relevant and appropriate
under the circumstances of the release or
threatened release, the President shall consider
the designated or potential use of the surface or
groundwater, the environmental media affected,
the purposes for which such criteria were developed, and the latest information available.
(ii) For the purposes of this section, a process
for establishing alternate concentration limits
to those otherwise applicable for hazardous constituents in groundwater under subparagraph
(A) may not be used to establish applicable
standards under this paragraph if the process assumes a point of human exposure beyond the
boundary of the facility, as defined at the conclusion of the remedial investigation and feasibility study, except where—
(I) there are known and projected points of
entry of such groundwater into surface water;
and
(II) on the basis of measurements or projections, there is or will be no statistically significant increase of such constituents from
such groundwater in such surface water at the
point of entry or at any point where there is

Page 6882

reason to believe accumulation of constituents
may occur downstream; and
(III) the remedial action includes enforceable measures that will preclude human exposure to the contaminated groundwater at any
point between the facility boundary and all
known and projected points of entry of such
groundwater into surface water
then the assumed point of human exposure may
be at such known and projected points of entry.
(C)(i) Clause (ii) of this subparagraph shall be
applicable only in cases where, due to the President’s selection, in compliance with subsection
(b)(1) of this section, of a proposed remedial action which does not permanently and significantly reduce the volume, toxicity, or mobility
of hazardous substances, pollutants, or contaminants, the proposed disposition of waste generated by or associated with the remedial action
selected by the President is land disposal in a
State referred to in clause (ii).
(ii) Except as provided in clauses (iii) and (iv),
a State standard, requirement, criteria, or limitation (including any State siting standard or
requirement) which could effectively result in
the statewide prohibition of land disposal of hazardous substances, pollutants, or contaminants
shall not apply.
(iii) Any State standard, requirement, criteria, or limitation referred to in clause (ii)
shall apply where each of the following conditions is met:
(I) The State standard, requirement, criteria, or limitation is of general applicability
and was adopted by formal means.
(II) The State standard, requirement, criteria, or limitation was adopted on the basis
of hydrologic, geologic, or other relevant considerations and was not adopted for the purpose of precluding onsite remedial actions or
other land disposal for reasons unrelated to
protection of human health and the environment.
(III) The State arranges for, and assures payment of the incremental costs of utilizing, a
facility for disposition of the hazardous substances, pollutants, or contaminants concerned.
(iv) Where the remedial action selected by the
President does not conform to a State standard
and the State has initiated a law suit against
the Environmental Protection Agency prior to
May 1, 1986, to seek to have the remedial action
conform to such standard, the President shall
conform the remedial action to the State standard. The State shall assure the availability of an
offsite facility for such remedial action.
(3) In the case of any removal or remedial action involving the transfer of any hazardous substance or pollutant or contaminant offsite, such
hazardous substance or pollutant or contaminant shall only be transferred to a facility
which is operating in compliance with section
3004 and 3005 of the Solid Waste Disposal Act [42
U.S.C. 6924, 6925] (or, where applicable, in compliance with the Toxic Substances Control Act
[15 U.S.C. 2601 et seq.] or other applicable Federal law) and all applicable State requirements.
Such substance or pollutant or contaminant
may be transferred to a land disposal facility

Page 6883

TITLE 42—THE PUBLIC HEALTH AND WELFARE

only if the President determines that both of
the following requirements are met:
(A) The unit to which the hazardous substance or pollutant or contaminant is transferred is not releasing any hazardous waste, or
constituent thereof, into the groundwater or
surface water or soil.
(B) All such releases from other units at the
facility are being controlled by a corrective
action program approved by the Administrator under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.].
The President shall notify the owner or operator
of such facility of determinations under this
paragraph.
(4) The President may select a remedial action
meeting the requirements of paragraph (1) that
does not attain a level or standard of control at
least equivalent to a legally applicable or relevant and appropriate standard, requirement,
criteria, or limitation as required by paragraph
(2) (including subparagraph (B) thereof), if the
President finds that—
(A) the remedial action selected is only part
of a total remedial action that will attain
such level or standard of control when completed;
(B) compliance with such requirement at
that facility will result in greater risk to
human health and the environment than alternative options;
(C) compliance with such requirements is
technically impracticable from an engineering
perspective;
(D) the remedial action selected will attain
a standard of performance that is equivalent
to that required under the otherwise applicable standard, requirement, criteria, or limitation, through use of another method or approach;
(E) with respect to a State standard, requirement, criteria, or limitation, the State has
not consistently applied (or demonstrated the
intention to consistently apply) the standard,
requirement, criteria, or limitation in similar
circumstances at other remedial actions within the State; or
(F) in the case of a remedial action to be
undertaken solely under section 9604 of this
title using the Fund, selection of a remedial
action that attains such level or standard of
control will not provide a balance between the
need for protection of public health and welfare and the environment at the facility under
consideration, and the availability of amounts
from the Fund to respond to other sites which
present or may present a threat to public
health or welfare or the environment, taking
into consideration the relative immediacy of
such threats.
The President shall publish such findings, together with an explanation and appropriate documentation.
(e) Permits and enforcement
(1) No Federal, State, or local permit shall be
required for the portion of any removal or remedial action conducted entirely onsite, where
such remedial action is selected and carried out
in compliance with this section.

§ 9621

(2) A State may enforce any Federal or State
standard, requirement, criteria, or limitation to
which the remedial action is required to conform under this chapter in the United States
district court for the district in which the facility is located. Any consent decree shall require
the parties to attempt expeditiously to resolve
disagreements concerning implementation of
the remedial action informally with the appropriate Federal and State agencies. Where the
parties agree, the consent decree may provide
for administrative enforcement. Each consent
decree shall also contain stipulated penalties for
violations of the decree in an amount not to exceed $25,000 per day, which may be enforced by
either the President or the State. Such stipulated penalties shall not be construed to impair
or affect the authority of the court to order
compliance with the specific terms of any such
decree.
(f) State involvement
(1) The President shall promulgate regulations
providing for substantial and meaningful involvement by each State in initiation, development, and selection of remedial actions to be
undertaken in that State. The regulations, at a
minimum, shall include each of the following:
(A) State involvement in decisions whether
to perform a preliminary assessment and site
inspection.
(B) Allocation of responsibility for hazard
ranking system scoring.
(C) State concurrence in deleting sites from
the National Priorities List.
(D) State participation in the long-term
planning process for all remedial sites within
the State.
(E) A reasonable opportunity for States to
review and comment on each of the following:
(i) The remedial investigation and feasibility study and all data and technical documents leading to its issuance.
(ii) The planned remedial action identified
in the remedial investigation and feasibility
study.
(iii) The engineering design following selection of the final remedial action.
(iv) Other technical data and reports relating to implementation of the remedy.
(v) Any proposed finding or decision by the
President to exercise the authority of subsection (d)(4) of this section.
(F) Notice to the State of negotiations with
potentially responsible parties regarding the
scope of any response action at a facility in
the State and an opportunity to participate in
such negotiations and, subject to paragraph
(2), be a party to any settlement.
(G) Notice to the State and an opportunity
to comment on the President’s proposed plan
for remedial action as well as on alternative
plans under consideration. The President’s
proposed decision regarding the selection of
remedial action shall be accompanied by a response to the comments submitted by the
State, including an explanation regarding any
decision under subsection (d)(4) of this section
on compliance with promulgated State standards. A copy of such response shall also be provided to the State.

§ 9621

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(H) Prompt notice and explanation of each
proposed action to the State in which the facility is located.
Prior to the promulgation of such regulations,
the President shall provide notice to the State
of negotiations with potentially responsible parties regarding the scope of any response action
at a facility in the State, and such State may
participate in such negotiations and, subject to
paragraph (2), any settlements.
(2)(A) This paragraph shall apply to remedial
actions secured under section 9606 of this title.
At least 30 days prior to the entering of any consent decree, if the President proposes to select a
remedial action that does not attain a legally
applicable or relevant and appropriate standard,
requirement, criteria, or limitation, under the
authority of subsection (d)(4) of this section, the
President shall provide an opportunity for the
State to concur or not concur in such selection.
If the State concurs, the State may become a
signatory to the consent decree.
(B) If the State does not concur in such selection, and the State desires to have the remedial
action conform to such standard, requirement,
criteria, or limitation, the State shall intervene
in the action under section 9606 of this title before entry of the consent decree, to seek to have
the remedial action so conform. Such intervention shall be a matter of right. The remedial action shall conform to such standard, requirement, criteria, or limitation if the State establishes, on the administrative record, that the
finding of the President was not supported by
substantial evidence. If the court determines
that the remedial action shall conform to such
standard, requirement, criteria, or limitation,
the remedial action shall be so modified and the
State may become a signatory to the decree. If
the court determines that the remedial action
need not conform to such standard, requirement, criteria, or limitation, and the State pays
or assures the payment of the additional costs
attributable to meeting such standard, requirement, criteria, or limitation, the remedial action shall be so modified and the State shall become a signatory to the decree.
(C) The President may conclude settlement
negotiations with potentially responsible parties without State concurrence.
(3)(A) This paragraph shall apply to remedial
actions at facilities owned or operated by a department, agency, or instrumentality of the
United States. At least 30 days prior to the publication of the President’s final remedial action
plan, if the President proposes to select a remedial action that does not attain a legally applicable or relevant and appropriate standard, requirement, criteria, or limitation, under the authority of subsection (d)(4) of this section, the
President shall provide an opportunity for the
State to concur or not concur in such selection.
If the State concurs, or does not act within 30
days, the remedial action may proceed.
(B) If the State does not concur in such selection as provided in subparagraph (A), and desires
to have the remedial action conform to such
standard, requirement, criteria, or limitation,
the State may maintain an action as follows:
(i) If the President has notified the State of
selection of such a remedial action, the State

Page 6884

may bring an action within 30 days of such notification for the sole purpose of determining
whether the finding of the President is supported by substantial evidence. Such action
shall be brought in the United States district
court for the district in which the facility is
located.
(ii) If the State establishes, on the administrative record, that the President’s finding is
not supported by substantial evidence, the remedial action shall be modified to conform to
such standard, requirement, criteria, or limitation.
(iii) If the State fails to establish that the
President’s finding was not supported by substantial evidence and if the State pays, within
60 days of judgment, the additional costs attributable to meeting such standard, requirement, criteria, or limitation, the remedial action shall be selected to meet such standard,
requirement, criteria, or limitation. If the
State fails to pay within 60 days, the remedial
action selected by the President shall proceed
through completion.
(C) Nothing in this section precludes, and the
court shall not enjoin, the Federal agency from
taking any remedial action unrelated to or not
inconsistent with such standard, requirement,
criteria, or limitation.
(Pub. L. 96–510, title I, § 121, as added Pub. L.
99–499, title I, § 121(a), Oct. 17, 1986, 100 Stat.
1672.)
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsecs.
(b)(1)(B) and (d)(2)(A)(i), (3)(B), is title II of Pub. L.
89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally
by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2795, which
is classified generally to chapter 82 (§ 6901 et seq.) of
this title. Subtitle C of the Solid Waste Disposal Act is
classified generally to subchapter III (§ 6921 et seq.) of
chapter 82 of this title. For complete classification of
this Act to the Code, see Short Title note set out under
section 6901 of this title and Tables.
This chapter, referred to in subsecs. (d)(1) and (e)(2),
was in the original ‘‘this Act’’, meaning Pub. L. 96–510,
Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code,
see Short Title note set out under section 9601 of this
title and Tables.
The Toxic Substances Control Act, referred to in subsec. (d)(2)(A)(i), (3), is Pub. L. 94–469, Oct. 11, 1976, 90
Stat. 2003, which is classified generally to chapter 53
(§ 2601 et seq.) of Title 15, Commerce and Trade. For
complete classification of this Act to the Code, see
Short Title note set out under section 2601 of Title 15
and Tables.
The Safe Drinking Water Act, referred to in subsec.
(d)(2)(A), is title XIV of act July 1, 1944, as added Dec.
16, 1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660, which is classified generally to subchapter XII (§ 300f et seq.) of
chapter 6A of this title. For complete classification of
this Act to the Code, see Short Title note set out under
section 201 of this title and Tables.
The Clean Air Act, referred to in subsec. (d)(2)(A)(i),
is act July 14, 1955, ch. 360, 69 Stat. 322, which is classified generally to chapter 85 (§ 7401 et seq.) of this title.
For complete classification of this Act to the Code, see
Short Title note set out under section 7401 of this title
and Tables.
The Clean Water Act, referred to in subsec.
(d)(2)(A)(i), (B)(i), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat.

Page 6885

TITLE 42—THE PUBLIC HEALTH AND WELFARE

816, also known as the Federal Water Pollution Control
Act, which is classified generally to chapter 26 (§ 1251 et
seq.) of Title 33, Navigation and Navigable Waters. For
complete classification of this Act to the Code, see
Short Title note set out under section 1251 of Title 33
and Tables.
The Marine Protection, Research and Sanctuaries
Act, referred to in subsec. (d)(2)(A)(i), probably means
the Marine Protection, Research and Sanctuaries Act
of 1972, Pub. L. 92–532, Oct. 23, 1972, 86 Stat. 1052, which
enacted chapters 32 (§ 1431 et seq.) and 32A (§ 1447 et
seq.) of Title 16, Conservation, and chapters 27 (§ 1401 et
seq.) and 41 (§ 2801 et seq.) of Title 33. For complete classification of this Act to the Code, see Short Title note
set out under section 1401 of Title 33 and Tables.
EFFECTIVE DATE
Pub. L. 99–499, title I, § 121(b), Oct. 17, 1986, 100 Stat.
1678, provided that: ‘‘With respect to section 121 of
CERCLA [this section], as added by this section—
‘‘(1) The requirements of section 121 of CERCLA
shall not apply to any remedial action for which the
Record of Decision (hereinafter in this section referred to as the ‘ROD’) was signed, or the consent decree was lodged, before date of enactment [Oct. 17,
1986].
‘‘(2) If the ROD was signed, or the consent decree
lodged, within the 30-day period immediately following enactment of the Act [Oct. 17, 1986], the Administrator shall certify in writing that the portion of the
remedial action covered by the ROD or consent decree complies to the maximum extent practicable
with section 121 of CERCLA.
Any ROD signed before enactment of this Act [Oct. 17,
1986] and reopened after enactment of this Act to modify or supplement the selection of remedy shall be subject to the requirements of section 121 of CERCLA.’’
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
of law requiring submittal to Congress of any annual,
semiannual, or other regular periodic report listed in
House Document No. 103–7 (in which the report under
subsec. (c) of this section appears to be the report listed
as the 15th item on page 20), see section 3003 of Pub. L.
104–66, as amended, set out as a note under section 1113
of Title 31, Money and Finance.

§ 9622. Settlements
(a) Authority to enter into agreements
The President, in his discretion, may enter
into an agreement with any person (including
the owner or operator of the facility from which
a release or substantial threat of release emanates, or any other potentially responsible person), to perform any response action (including
any action described in section 9604(b) of this
title) if the President determines that such action will be done properly by such person. Whenever practicable and in the public interest, as
determined by the President, the President shall
act to facilitate agreements under this section
that are in the public interest and consistent
with the National Contingency Plan in order to
expedite effective remedial actions and minimize litigation. If the President decides not to
use the procedures in this section, the President
shall notify in writing potentially responsible
parties at the facility of such decision and the
reasons why use of the procedures is inappropriate. A decision of the President to use or not to
use the procedures in this section is not subject
to judicial review.

§ 9622

(b) Agreements with potentially responsible parties
(1) Mixed funding
An agreement under this section may provide that the President will reimburse the parties to the agreement from the Fund, with interest, for certain costs of actions under the
agreement that the parties have agreed to perform but which the President has agreed to finance. In any case in which the President provides such reimbursement, the President shall
make all reasonable efforts to recover the
amount of such reimbursement under section
9607 of this title or under other relevant authorities.
(2) Reviewability
The President’s decisions regarding the
availability of fund financing under this subsection shall not be subject to judicial review
under subsection (d) of this section.
(3) Retention of funds
If, as part of any agreement, the President
will be carrying out any action and the parties
will be paying amounts to the President, the
President may, notwithstanding any other
provision of law, retain and use such amounts
for purposes of carrying out the agreement.
(4) Future obligation of Fund
In the case of a completed remedial action
pursuant to an agreement described in paragraph (1), the Fund shall be subject to an obligation for subsequent remedial actions at the
same facility but only to the extent that such
subsequent actions are necessary by reason of
the failure of the original remedial action.
Such obligation shall be in a proportion equal
to, but not exceeding, the proportion contributed by the Fund for the original remedial action. The Fund’s obligation for such future remedial action may be met through Fund expenditures or through payment, following settlement or enforcement action, by parties who
were not signatories to the original agreement.
(c) Effect of agreement
(1) Liability
Whenever the President has entered into an
agreement under this section, the liability to
the United States under this chapter of each
party to the agreement, including any future
liability to the United States, arising from the
release or threatened release that is the subject of the agreement shall be limited as provided in the agreement pursuant to a covenant
not to sue in accordance with subsection (f) of
this section. A covenant not to sue may provide that future liability to the United States
of a settling potentially responsible party
under the agreement may be limited to the
same proportion as that established in the
original settlement agreement. Nothing in
this section shall limit or otherwise affect the
authority of any court to review in the consent decree process under subsection (d) of this
section any covenant not to sue contained in
an agreement under this section. In determining the extent to which the liability of parties

§ 9622

TITLE 42—THE PUBLIC HEALTH AND WELFARE

to an agreement shall be limited pursuant to
a covenant not to sue, the President shall be
guided by the principle that a more complete
covenant not to sue shall be provided for a
more permanent remedy undertaken by such
parties.
(2) Actions against other persons
If an agreement has been entered into under
this section, the President may take any action under section 9606 of this title against
any person who is not a party to the agreement, once the period for submitting a proposal under subsection (e)(2)(B) of this section
has expired. Nothing in this section shall be
construed to affect either of the following:
(A) The liability of any person under section 9606 or 9607 of this title with respect to
any costs or damages which are not included
in the agreement.
(B) The authority of the President to
maintain an action under this chapter
against any person who is not a party to the
agreement.
(d) Enforcement
(1) Cleanup agreements
(A) Consent decree
Whenever the President enters into an
agreement under this section with any potentially responsible party with respect to
remedial action under section 9606 of this
title, following approval of the agreement by
the Attorney General, except as otherwise
provided in the case of certain administrative settlements referred to in subsection (g)
of this section, the agreement shall be entered in the appropriate United States district court as a consent decree. The President need not make any finding regarding an
imminent and substantial endangerment to
the public health or the environment in connection with any such agreement or consent
decree.
(B) Effect
The entry of any consent decree under this
subsection shall not be construed to be an
acknowledgment by the parties that the release or threatened release concerned constitutes an imminent and substantial endangerment to the public health or welfare or
the environment. Except as otherwise provided in the Federal Rules of Evidence, the
participation by any party in the process
under this section shall not be considered an
admission of liability for any purpose, and
the fact of such participation shall not be
admissible in any judicial or administrative
proceeding, including a subsequent proceeding under this section.
(C) Structure
The President may fashion a consent decree so that the entering of such decree and
compliance with such decree or with any determination or agreement made pursuant to
this section shall not be considered an admission of liability for any purpose.

Page 6886

(2) Public participation
(A) Filing of proposed judgment
At least 30 days before a final judgment is
entered under paragraph (1), the proposed
judgment shall be filed with the court.
(B) Opportunity for comment
The Attorney General shall provide an opportunity to persons who are not named as
parties to the action to comment on the proposed judgment before its entry by the court
as a final judgment. The Attorney General
shall consider, and file with the court, any
written comments, views, or allegations relating to the proposed judgment. The Attorney General may withdraw or withhold its
consent to the proposed judgment if the
comments, views, and allegations concerning the judgment disclose facts or considerations which indicate that the proposed
judgment is inappropriate, improper, or inadequate.
(3) 9604(b) agreements
Whenever the President enters into an
agreement under this section with any potentially responsible party with respect to action
under section 9604(b) of this title, the President shall issue an order or enter into a decree
setting forth the obligations of such party.
The United States district court for the district in which the release or threatened release occurs may enforce such order or decree.
(e) Special notice procedures
(1) Notice
Whenever the President determines that a
period of negotiation under this subsection
would facilitate an agreement with potentially responsible parties for taking response
action (including any action described in section 9604(b) of this title) and would expedite
remedial action, the President shall so notify
all such parties and shall provide them with
information concerning each of the following:
(A) The names and addresses of potentially
responsible parties (including owners and operators and other persons referred to in section 9607(a) of this title), to the extent such
information is available.
(B) To the extent such information is
available, the volume and nature of substances contributed by each potentially responsible party identified at the facility.
(C) A ranking by volume of the substances
at the facility, to the extent such information is available.
The President shall make the information referred to in this paragraph available in advance of notice under this paragraph upon the
request of a potentially responsible party in
accordance with procedures provided by the
President. The provisions of subsection (e) of
section 9604 of this title regarding protection
of confidential information apply to information provided under this paragraph. Disclosure
of information generated by the President
under this section to persons other than the
Congress, or any duly authorized Committee
thereof, is subject to other privileges or protections provided by law, including (but not

Page 6887

TITLE 42—THE PUBLIC HEALTH AND WELFARE

limited to) those applicable to attorney work
product. Nothing contained in this paragraph
or in other provisions of this chapter shall be
construed, interpreted, or applied to diminish
the required disclosure of information under
other provisions of this or other Federal or
State laws.
(2) Negotiation
(A) Moratorium
Except as provided in this subsection, the
President may not commence action under
section 9604(a) of this title or take any action under section 9606 of this title for 120
days after providing notice and information
under this subsection with respect to such
action. Except as provided in this subsection, the President may not commence a
remedial investigation and feasibility study
under section 9604(b) of this title for 90 days
after providing notice and information under
this subsection with respect to such action.
The President may commence any additional studies or investigations authorized
under section 9604(b) of this title, including
remedial design, during the negotiation period.
(B) Proposals
Persons receiving notice and information
under paragraph (1) of this subsection with
respect to action under section 9606 of this
title shall have 60 days from the date of receipt of such notice to make a proposal to
the President for undertaking or financing
the action under section 9606 of this title.
Persons receiving notice and information
under paragraph (1) of this subsection with
respect to action under section 9604(b) of this
title shall have 60 days from the date of receipt of such notice to make a proposal to
the President for undertaking or financing
the action under section 9604(b) of this title.
(C) Additional parties
If an additional potentially responsible
party is identified during the negotiation period or after an agreement has been entered
into under this subsection concerning a release or threatened release, the President
may bring the additional party into the negotiation or enter into a separate agreement
with such party.
(3) Preliminary allocation of responsibility
(A) In general
The President shall develop guidelines for
preparing nonbinding preliminary allocations of responsibility. In developing these
guidelines the President may include such
factors as the President considers relevant,
such as: volume, toxicity, mobility, strength
of evidence, ability to pay, litigative risks,
public interest considerations, precedential
value, and inequities and aggravating factors. When it would expedite settlements
under this section and remedial action, the
President may, after completion of the remedial investigation and feasibility study,
provide a nonbinding preliminary allocation
of responsibility which allocates percentages
of the total cost of response among potentially responsible parties at the facility.

§ 9622

(B) Collection of information
To collect information necessary or appropriate for performing the allocation under
subparagraph (A) or for otherwise implementing this section, the President may by
subpoena require the attendance and testimony of witnesses and the production of reports, papers, documents, answers to questions, and other information that the President deems necessary. Witnesses shall be
paid the same fees and mileage that are paid
witnesses in the courts of the United States.
In the event of contumacy or failure or refusal of any person to obey any such subpoena, any district court of the United
States in which venue is proper shall have
jurisdiction to order any such person to
comply with such subpoena. Any failure to
obey such an order of the court is punishable
by the court as a contempt thereof.
(C) Effect
The nonbinding preliminary allocation of
responsibility shall not be admissible as evidence in any proceeding, and no court shall
have jurisdiction to review the nonbinding
preliminary allocation of responsibility. The
nonbinding preliminary allocation of responsibility shall not constitute an apportionment or other statement on the divisibility
of harm or causation.
(D) Costs
The costs incurred by the President in producing the nonbinding preliminary allocation of responsibility shall be reimbursed by
the potentially responsible parties whose
offer is accepted by the President. Where an
offer under this section is not accepted, such
costs shall be considered costs of response.
(E) Decision to reject offer
Where the President, in his discretion, has
provided a nonbinding preliminary allocation of responsibility and the potentially responsible parties have made a substantial
offer providing for response to the President
which he rejects, the reasons for the rejection shall be provided in a written explanation. The President’s decision to reject
such an offer shall not be subject to judicial
review.
(4) Failure to propose
If the President determines that a good faith
proposal for undertaking or financing action
under section 9606 of this title has not been
submitted within 60 days of the provision of
notice pursuant to this subsection, the President may thereafter commence action under
section 9604(a) of this title or take an action
against any person under section 9606 of this
title. If the President determines that a good
faith proposal for undertaking or financing action under section 9604(b) of this title has not
been submitted within 60 days after the provision of notice pursuant to this subsection, the
President may thereafter commence action
under section 9604(b) of this title.
(5) Significant threats
Nothing in this subsection shall limit the
President’s authority to undertake response or

§ 9622

TITLE 42—THE PUBLIC HEALTH AND WELFARE

enforcement action regarding a significant
threat to public health or the environment
within the negotiation period established by
this subsection.
(6) Inconsistent response action
When either the President, or a potentially
responsible party pursuant to an administrative order or consent decree under this chapter, has initiated a remedial investigation and
feasibility study for a particular facility under
this chapter, no potentially responsible party
may undertake any remedial action at the facility unless such remedial action has been authorized by the President.
(f) Covenant not to sue
(1) Discretionary covenants
The President may, in his discretion, provide any person with a covenant not to sue
concerning any liability to the United States
under this chapter, including future liability,
resulting from a release or threatened release
of a hazardous substance addressed by a remedial action, whether that action is onsite or
offsite, if each of the following conditions is
met:
(A) The covenant not to sue is in the public interest.
(B) The covenant not to sue would expedite response action consistent with the National Contingency Plan under section 9605
of this title.
(C) The person is in full compliance with a
consent decree under section 9606 of this
title (including a consent decree entered
into in accordance with this section) for response to the release or threatened release
concerned.
(D) The response action has been approved
by the President.
(2) Special covenants not to sue
In the case of any person to whom the President is authorized under paragraph (1) of this
subsection to provide a covenant not to sue,
for the portion of remedial action—
(A) which involves the transport and secure disposition offsite of hazardous substances in a facility meeting the requirements of sections 6924(c), (d), (e), (f), (g), (m),
(o), (p), (u), and (v) and 6925(c) of this title,
where the President has rejected a proposed
remedial action that is consistent with the
National Contingency Plan that does not include such offsite disposition and has thereafter required offsite disposition; or
(B) which involves the treatment of hazardous substances so as to destroy, eliminate, or permanently immobilize the hazardous constituents of such substances, such
that, in the judgment of the President, the
substances no longer present any current or
currently foreseeable future significant risk
to public health, welfare or the environment, no byproduct of the treatment or destruction process presents any significant
hazard to public health, welfare or the environment, and all byproducts are themselves
treated, destroyed, or contained in a manner
which assures that such byproducts do not
present any current or currently foreseeable

Page 6888

future significant risk to public health, welfare or the environment,
the President shall provide such person with a
covenant not to sue with respect to future liability to the United States under this chapter
for a future release or threatened release of
hazardous substances from such facility, and a
person provided such covenant not to sue shall
not be liable to the United States under section 9606 or 9607 of this title with respect to
such release or threatened release at a future
time.
(3) Requirement that remedial action be completed
A covenant not to sue concerning future liability to the United States shall not take effect until the President certifies that remedial
action has been completed in accordance with
the requirements of this chapter at the facility that is the subject of such covenant.
(4) Factors
In assessing the appropriateness of a covenant not to sue under paragraph (1) and any
condition to be included in a covenant not to
sue under paragraph (1) or (2), the President
shall consider whether the covenant or condition is in the public interest on the basis of
such factors as the following:
(A) The effectiveness and reliability of the
remedy, in light of the other alternative
remedies considered for the facility concerned.
(B) The nature of the risks remaining at
the facility.
(C) The extent to which performance
standards are included in the order or decree.
(D) The extent to which the response action provides a complete remedy for the facility, including a reduction in the hazardous nature of the substances at the facility.
(E) The extent to which the technology
used in the response action is demonstrated
to be effective.
(F) Whether the Fund or other sources of
funding would be available for any additional remedial actions that might eventually be necessary at the facility.
(G) Whether the remedial action will be
carried out, in whole or in significant part,
by the responsible parties themselves.
(5) Satisfactory performance
Any covenant not to sue under this subsection shall be subject to the satisfactory
performance by such party of its obligations
under the agreement concerned.
(6) Additional condition for future liability
(A) Except for the portion of the remedial
action which is subject to a covenant not to
sue under paragraph (2) or under subsection (g)
of this section (relating to de minimis settlements), a covenant not to sue a person concerning future liability to the United States
shall include an exception to the covenant
that allows the President to sue such person
concerning future liability resulting from the
release or threatened release that is the subject of the covenant where such liability arises

Page 6889

TITLE 42—THE PUBLIC HEALTH AND WELFARE

out of conditions which are unknown at the
time the President certifies under paragraph
(3) that remedial action has been completed at
the facility concerned.
(B) In extraordinary circumstances, the
President may determine, after assessment of
relevant factors such as those referred to in
paragraph (4) and volume, toxicity, mobility,
strength of evidence, ability to pay, litigative
risks, public interest considerations, precedential value, and inequities and aggravating factors, not to include the exception referred to
in subparagraph (A) if other terms, conditions,
or requirements of the agreement containing
the covenant not to sue are sufficient to provide all reasonable assurances that public
health and the environment will be protected
from any future releases at or from the facility.
(C) The President is authorized to include
any provisions allowing future enforcement
action under section 9606 or 9607 of this title
that in the discretion of the President are necessary and appropriate to assure protection of
public health, welfare, and the environment.
(g) De minimis settlements
(1) Expedited final settlement
Whenever practicable and in the public interest, as determined by the President, the
President shall as promptly as possible reach
a final settlement with a potentially responsible party in an administrative or civil action
under section 9606 or 9607 of this title if such
settlement involves only a minor portion of
the response costs at the facility concerned
and, in the judgment of the President, the conditions in either of the following subparagraph
(A) or (B) are met:
(A) Both of the following are minimal in
comparison to other hazardous substances at
the facility:
(i) The amount of the hazardous substances contributed by that party to the
facility.
(ii) The toxic or other hazardous effects
of the substances contributed by that
party to the facility.
(B) The potentially responsible party—
(i) is the owner of the real property on or
in which the facility is located;
(ii) did not conduct or permit the generation, transportation, storage, treatment,
or disposal of any hazardous substance at
the facility; and
(iii) did not contribute to the release or
threat of release of a hazardous substance
at the facility through any action or omission.
This subparagraph (B) does not apply if the
potentially responsible party purchased the
real property with actual or constructive
knowledge that the property was used for
the generation, transportation, storage,
treatment, or disposal of any hazardous substance.
(2) Covenant not to sue
The President may provide a covenant not
to sue with respect to the facility concerned

§ 9622

to any party who has entered into a settlement under this subsection unless such a covenant would be inconsistent with the public
interest as determined under subsection (f) of
this section.
(3) Expedited agreement
The President shall reach any such settlement or grant any such covenant not to sue as
soon as possible after the President has available the information necessary to reach such a
settlement or grant such a covenant.
(4) Consent decree or administrative order
A settlement under this subsection shall be
entered as a consent decree or embodied in an
administrative order setting forth the terms
of the settlement. In the case of any facility
where the total response costs exceed $500,000
(excluding interest), if the settlement is embodied as an administrative order, the order
may be issued only with the prior written approval of the Attorney General. If the Attorney General or his designee has not approved
or disapproved the order within 30 days of this
referral, the order shall be deemed to be approved unless the Attorney General and the
Administrator have agreed to extend the time.
The district court for the district in which the
release or threatened release occurs may enforce any such administrative order.
(5) Effect of agreement
A party who has resolved its liability to the
United States under this subsection shall not
be liable for claims for contribution regarding
matters addressed in the settlement. Such settlement does not discharge any of the other
potentially responsible parties unless its
terms so provide, but it reduces the potential
liability of the others by the amount of the
settlement.
(6) Settlements with other potentially responsible parties
Nothing in this subsection shall be construed to affect the authority of the President
to reach settlements with other potentially
responsible parties under this chapter.
(7) Reduction in settlement amount based on
limited ability to pay
(A) In general
The condition for settlement under this
paragraph is that the potentially responsible
party is a person who demonstrates to the
President an inability or a limited ability to
pay response costs.
(B) Considerations
In determining whether or not a demonstration is made under subparagraph (A)
by a person, the President shall take into
consideration the ability of the person to
pay response costs and still maintain its
basic business operations, including consideration of the overall financial condition of
the person and demonstrable constraints on
the ability of the person to raise revenues.
(C) Information
A person requesting settlement under this
paragraph shall promptly provide the Presi-

§ 9622

TITLE 42—THE PUBLIC HEALTH AND WELFARE

dent with all relevant information needed to
determine the ability of the person to pay
response costs.
(D) Alternative payment methods
If the President determines that a person
is unable to pay its total settlement amount
at the time of settlement, the President
shall consider such alternative payment
methods as may be necessary or appropriate.
(8) Additional conditions for expedited settlements
(A) Waiver of claims
The President shall require, as a condition
for settlement under this subsection, that a
potentially responsible party waive all of
the claims (including a claim for contribution under this chapter) that the party may
have against other potentially responsible
parties for response costs incurred with respect to the facility, unless the President determines that requiring a waiver would be
unjust.
(B) Failure to comply
The President may decline to offer a settlement to a potentially responsible party
under this subsection if the President determines that the potentially responsible party
has failed to comply with any request for access or information or an administrative
subpoena issued by the President under this
chapter or has impeded or is impeding,
through action or inaction, the performance
of a response action with respect to the facility.
(C) Responsibility to provide information
and access
A potentially responsible party that enters
into a settlement under this subsection shall
not be relieved of the responsibility to provide any information or access requested in
accordance with subsection (e)(3)(B) of this
section or section 9604(e) of this title.
(9) Basis of determination
If the President determines that a potentially responsible party is not eligible for settlement under this subsection, the President
shall provide the reasons for the determination in writing to the potentially responsible
party that requested a settlement under this
subsection.
(10) Notification
As soon as practicable after receipt of sufficient information to make a determination,
the President shall notify any person that the
President determines is eligible under paragraph (1) of the person’s eligibility for an expedited settlement.
(11) No judicial review
A determination by the President under
paragraph (7), (8), (9), or (10) shall not be subject to judicial review.
(12) Notice of settlement
After a settlement under this subsection becomes final with respect to a facility, the
President shall promptly notify potentially re-

Page 6890

sponsible parties at the facility that have not
resolved their liability to the United States of
the settlement.
(h) Cost recovery settlement authority
(1) Authority to settle
The head of any department or agency with
authority to undertake a response action
under this chapter pursuant to the national
contingency plan may consider, compromise,
and settle a claim under section 9607 of this
title for costs incurred by the United States
Government if the claim has not been referred
to the Department of Justice for further action. In the case of any facility where the
total response costs exceed $500,000 (excluding
interest), any claim referred to in the preceding sentence may be compromised and settled
only with the prior written approval of the Attorney General.
(2) Use of arbitration
Arbitration in accordance with regulations
promulgated under this subsection may be
used as a method of settling claims of the
United States where the total response costs
for the facility concerned do not exceed
$500,000 (excluding interest). After consultation with the Attorney General, the department or agency head may establish and publish regulations for the use of arbitration or
settlement under this subsection.
(3) Recovery of claims
If any person fails to pay a claim that has
been settled under this subsection, the department or agency head shall request the Attorney General to bring a civil action in an appropriate district court to recover the amount
of such claim, plus costs, attorneys’ fees, and
interest from the date of the settlement. In
such an action, the terms of the settlement
shall not be subject to review.
(4) Claims for contribution
A person who has resolved its liability to the
United States under this subsection shall not
be liable for claims for contribution regarding
matters addressed in the settlement. Such settlement shall not discharge any of the other
potentially liable persons unless its terms so
provide, but it reduces the potential liability
of the others by the amount of the settlement.
(i) Settlement procedures
(1) Publication in Federal Register
At least 30 days before any settlement (including any settlement arrived at through arbitration) may become final under subsection
(h) of this section, or under subsection (g) of
this section in the case of a settlement embodied in an administrative order, the head of
the department or agency which has jurisdiction over the proposed settlement shall publish in the Federal Register notice of the proposed settlement. The notice shall identify the
facility concerned and the parties to the proposed settlement.
(2) Comment period
For a 30-day period beginning on the date of
publication of notice under paragraph (1) of a

Page 6891

TITLE 42—THE PUBLIC HEALTH AND WELFARE

proposed settlement, the head of the department or agency which has jurisdiction over
the proposed settlement shall provide an opportunity for persons who are not parties to
the proposed settlement to file written comments relating to the proposed settlement.
(3) Consideration of comments
The head of the department or agency shall
consider any comments filed under paragraph
(2) in determining whether or not to consent
to the proposed settlement and may withdraw
or withhold consent to the proposed settlement if such comments disclose facts or considerations which indicate the proposed settlement is inappropriate, improper, or inadequate.
(j) Natural resources
(1) Notification of trustee
Where a release or threatened release of any
hazardous substance that is the subject of negotiations under this section may have resulted in damages to natural resources under
the trusteeship of the United States, the
President shall notify the Federal natural resource trustee of the negotiations and shall
encourage the participation of such trustee in
the negotiations.
(2) Covenant not to sue
An agreement under this section may contain a covenant not to sue under section
9607(a)(4)(C) of this title for damages to natural resources under the trusteeship of the
United States resulting from the release or
threatened release of hazardous substances
that is the subject of the agreement, but only
if the Federal natural resource trustee has
agreed in writing to such covenant. The Federal natural resource trustee may agree to
such covenant if the potentially responsible
party agrees to undertake appropriate actions
necessary to protect and restore the natural
resources damaged by such release or threatened release of hazardous substances.
(k) Section not applicable to vessels
The provisions of this section shall not apply
to releases from a vessel.
(l) Civil penalties
A potentially responsible party which is a
party to an administrative order or consent decree entered pursuant to an agreement under
this section or section 9620 of this title (relating
to Federal facilities) or which is a party to an
agreement under section 9620 of this title and
which fails or refuses to comply with any term
or condition of the order, decree or agreement
shall be subject to a civil penalty in accordance
with section 9609 of this title.
(m) Applicability of general principles of law
In the case of consent decrees and other settlements under this section (including covenants
not to sue), no provision of this chapter shall be
construed to preclude or otherwise affect the applicability of general principles of law regarding
the setting aside or modification of consent decrees or other settlements.
(Pub. L. 96–510, title I, § 122, as added Pub. L.
99–499, title I, § 122(a), Oct. 17, 1986, 100 Stat. 1678;

§ 9623

amended Pub. L. 107–118, title I, § 102(b), Jan. 11,
2002, 115 Stat. 2359.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2767, known as the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
which is classified principally to this chapter. For complete classification of this Act to the Code, see Short
Title note set out under section 9601 of this title and
Tables.
The Federal Rules of Evidence, referred to in subsec.
(d)(1)(B), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
AMENDMENTS
2002—Subsec. (g)(7) to (12). Pub. L. 107–118 added pars.
(7) to (12).
EFFECT ON CONCLUDED ACTIONS
Amendment by Pub. L. 107–118 not to apply to or in
any way affect any settlement lodged in, or judgment
issued by, a United States District Court, or any administrative settlement or order entered into or issued
by the United States or any State, before Jan. 11, 2002,
see section 103 of Pub. L. 107–118, set out as a note
under section 9607 of this title.
COORDINATION OF TITLES I TO IV OF PUB. L. 99–499
Any provision of titles I to IV of Pub. L. 99–499, imposing any tax, premium, or fee; establishing any trust
fund; or authorizing expenditures from any trust fund,
to have no force or effect, see section 531 of Pub. L.
99–499, set out as a note under section 1 of Title 26, Internal Revenue Code.

§ 9623. Reimbursement to local governments
(a) Application
Any general purpose unit of local government
for a political subdivision which is affected by a
release or threatened release at any facility may
apply to the President for reimbursement under
this section.
(b) Reimbursement
(1) Temporary emergency measures
The President is authorized to reimburse
local community authorities for expenses incurred (before or after October 17, 1986) in carrying out temporary emergency measures necessary to prevent or mitigate injury to human
health or the environment associated with the
release or threatened release of any hazardous
substance or pollutant or contaminant. Such
measures may include, where appropriate, security fencing to limit access, response to
fires and explosions, and other measures which
require immediate response at the local level.
(2) Local funds not supplanted
Reimbursement under this section shall not
supplant local funds normally provided for response.
(c) Amount
The amount of any reimbursement to any
local authority under subsection (b)(1) of this
section may not exceed $25,000 for a single response. The reimbursement under this section
with respect to a single facility shall be limited
to the units of local government having jurisdiction over the political subdivision in which the
facility is located.

§ 9624

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(d) Procedure
Reimbursements authorized pursuant to this
section shall be in accordance with rules promulgated by the Administrator within one year
after October 17, 1986.
(Pub. L. 96–510, title I, § 123, as added Pub. L.
99–499, title I, § 123(a), Oct. 17, 1986, 100 Stat.
1688.)
§ 9624. Methane recovery
(a) In general
In the case of a facility at which equipment
for the recovery or processing (including recirculation of condensate) of methane has been installed, for purposes of this chapter:
(1) The owner or operator of such equipment
shall not be considered an ‘‘owner or operator’’, as defined in section 9601(20) of this title,
with respect to such facility.
(2) The owner or operator of such equipment
shall not be considered to have arranged for
disposal or treatment of any hazardous substance at such facility pursuant to section 9607
of this title.
(3) The owner or operator of such equipment
shall not be subject to any action under section 9606 of this title with respect to such facility.
(b) Exceptions
Subsection (a) of this section does not apply
with respect to a release or threatened release of
a hazardous substance from a facility described
in subsection (a) of this section if either of the
following circumstances exist:
(1) The release or threatened release was primarily caused by activities of the owner or operator of the equipment described in subsection (a) of this section.
(2) The owner or operator of such equipment
would be covered by paragraph (1), (2), (3), or
(4) of subsection (a) of section 9607 of this title
with respect to such release or threatened release if he were not the owner or operator of
such equipment.
In the case of any release or threatened release
referred to in paragraph (1), the owner or operator of the equipment described in subsection (a)
of this section shall be liable under this chapter
only for costs or damages primarily caused by
the activities of such owner or operator.
(Pub. L. 96–510, title I, § 124, as added Pub. L.
99–499, title I, § 124(a), Oct. 17, 1986, 100 Stat.
1688.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2767, known as the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
which is classified principally to this chapter. For complete classification of this Act to the Code, see Short
Title note set out under section 9601 of this title and
Tables.

§ 9625. Section 6921(b)(3)(A)(i) waste
(a) Revision of hazard ranking system
This section shall apply only to facilities
which are not included or proposed for inclusion

Page 6892

on the National Priorities List and which contain substantial volumes of waste described in
section 6921(b)(3)(A)(i) of this title. As expeditiously as practicable, the President shall revise
the hazard ranking system in effect under the
National Contingency Plan with respect to such
facilities in a manner which assures appropriate
consideration of each of the following site-specific characteristics of such facilities:
(1) The quantity, toxicity, and concentrations of hazardous constituents which are
present in such waste and a comparison thereof with other wastes.
(2) The extent of, and potential for, release
of such hazardous constituents into the environment.
(3) The degree of risk to human health and
the environment posed by such constituents.
(b) Inclusion prohibited
Until the hazard ranking system is revised as
required by this section, the President may not
include on the National Priorities List any facility which contains substantial volumes of waste
described in section 6921(b)(3)(A)(i) of this title
on the basis of an evaluation made principally
on the volume of such waste and not on the concentrations of the hazardous constituents of
such waste. Nothing in this section shall be construed to affect the President’s authority to include any such facility on the National Priorities List based on the presence of other substances at such facility or to exercise any other
authority of this chapter with respect to such
other substances.
(Pub. L. 96–510, title I, § 125, as added Pub. L.
99–499, title I, § 125, Oct. 17, 1986, 100 Stat. 1689.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (b), was in the
original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, which is classified principally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 9601 of this title
and Tables.

§ 9626. Indian tribes
(a) Treatment generally
The governing body of an Indian tribe shall be
afforded substantially the same treatment as a
State with respect to the provisions of section
9603(a) of this title (regarding notification of releases), section 9604(c)(2) of this title (regarding
consultation on remedial actions), section
9604(e) of this title (regarding access to information), section 9604(i) of this title (regarding
health authorities) and section 9605 of this title
(regarding roles and responsibilities under the
national contingency plan and submittal of priorities for remedial action, but not including
the provision regarding the inclusion of at least
one facility per State on the National Priorities
List).
(b) Community relocation
Should the President determine that proper
remedial action is the permanent relocation of
tribal members away from a contaminated site
because it is cost effective and necessary to pro-

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

tect their health and welfare, such finding must
be concurred in by the affected tribal government before relocation shall occur. The President, in cooperation with the Secretary of the
Interior, shall also assure that all benefits of the
relocation program are provided to the affected
tribe and that alternative land of equivalent
value is available and satisfactory to the tribe.
Any lands acquired for relocation of tribal members shall be held in trust by the United States
for the benefit of the tribe.
(c) Study
The President shall conduct a survey, in consultation with the Indian tribes, to determine
the extent of hazardous waste sites on Indian
lands. Such survey shall be included within a report which shall make recommendations on the
program needs of tribes under this chapter, with
particular emphasis on how tribal participation
in the administration of such programs can be
maximized. Such report shall be submitted to
Congress along with the President’s budget request for fiscal year 1988.
(d) Limitation
Notwithstanding any other provision of this
chapter, no action under this chapter by an Indian tribe shall be barred until the later of the
following:
(1) The applicable period of limitations has
expired.
(2) 2 years after the United States, in its capacity as trustee for the tribe, gives written
notice to the governing body of the tribe that
it will not present a claim or commence an action on behalf of the tribe or fails to present
a claim or commence an action within the
time limitations specified in this chapter.
(Pub. L. 96–510, title I, § 126, as added Pub. L.
99–499, title II, § 207(e), Oct. 17, 1986, 100 Stat.
1706.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (c) and (d), was
in the original ‘‘this Act’’, meaning Pub. L. 96–510, Dec.
11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code,
see Short Title note set out under section 9601 of this
title and Tables.

§ 9627. Recycling transactions
(a) Liability clarification
(1) As provided in subsections (b), (c), (d), and
(e) of this section, a person who arranged for recycling of recyclable material shall not be liable
under sections 9607(a)(3) and 9607(a)(4) of this
title with respect to such material.
(2) A determination whether or not any person
shall be liable under section 9607(a)(3) of this
title or section 9607(a)(4) of this title for any material that is not a recyclable material as that
term is used in subsections (b) and (c), (d), or (e)
of this section shall be made, without regard to
subsections 1 (b), (c), (d), or (e) of this section.
(b) Recyclable material defined
For purposes of this section, the term
‘‘recyclable material’’ means scrap paper, scrap
1 So

in original. Probably should be ‘‘subsection’’.

§ 9627

plastic, scrap glass, scrap textiles, scrap rubber
(other than whole tires), scrap metal, or spent
lead-acid, spent nickel-cadmium, and other
spent batteries, as well as minor amounts of material incident to or adhering to the scrap material as a result of its normal and customary use
prior to becoming scrap; except that such term
shall not include—
(1) shipping containers of a capacity from 30
liters to 3,000 liters, whether intact or not,
having any hazardous substance (but not
metal bits and pieces or hazardous substance
that form an integral part of the container)
contained in or adhering thereto; or
(2) any item of material that contained polychlorinated biphenyls at a concentration in
excess of 50 parts per million or any new
standard promulgated pursuant to applicable
Federal laws.
(c) Transactions involving scrap paper, plastic,
glass, textiles, or rubber
Transactions involving scrap paper, scrap
plastic, scrap glass, scrap textiles, or scrap rubber (other than whole tires) shall be deemed to
be arranging for recycling if the person who arranged for the transaction (by selling recyclable
material or otherwise arranging for the recycling of recyclable material) can demonstrate by
a preponderance of the evidence that all of the
following criteria were met at the time of the
transaction:
(1) The recyclable material met a commercial specification grade.
(2) A market existed for the recyclable material.
(3) A substantial portion of the recyclable
material was made available for use as feedstock for the manufacture of a new saleable
product.
(4) The recyclable material could have been
a replacement or substitute for a virgin raw
material, or the product to be made from the
recyclable material could have been a replacement or substitute for a product made, in
whole or in part, from a virgin raw material.
(5) For transactions occurring 90 days or
more after November 29, 1999, the person exercised reasonable care to determine that the facility where the recyclable material was handled, processed, reclaimed, or otherwise managed by another person (hereinafter in this
section referred to as a ‘‘consuming facility’’)
was in compliance with substantive (not procedural or administrative) provisions of any
Federal, State, or local environmental law or
regulation, or compliance order or decree issued pursuant thereto, applicable to the handling, processing, reclamation, storage, or
other management activities associated with
recyclable material.
(6) For purposes of this subsection, ‘‘reasonable care’’ shall be determined using criteria
that include (but are not limited to)—
(A) the price paid in the recycling transaction;
(B) the ability of the person to detect the
nature of the consuming facility’s operations concerning its handling, processing,
reclamation, or other management activities associated with recyclable material; and

§ 9627

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(C) the result of inquiries made to the appropriate Federal, State, or local environmental agency (or agencies) regarding the
consuming facility’s past and current compliance with substantive (not procedural or
administrative) provisions of any Federal,
State, or local environmental law or regulation, or compliance order or decree issued
pursuant thereto, applicable to the handling,
processing, reclamation, storage, or other
management activities associated with the
recyclable material. For the purposes of this
paragraph, a requirement to obtain a permit
applicable to the handling, processing, reclamation, or other management activity associated with the recyclable materials shall
be deemed to be a substantive provision.
(d) Transactions involving scrap metal
(1) Transactions involving scrap metal shall be
deemed to be arranging for recycling if the person who arranged for the transaction (by selling
recyclable material or otherwise arranging for
the recycling of recyclable material) can demonstrate by a preponderance of the evidence
that at the time of the transaction—
(A) the person met the criteria set forth in
subsection (c) of this section with respect to
the scrap metal;
(B) the person was in compliance with any
applicable regulations or standards regarding
the storage, transport, management, or other
activities associated with the recycling of
scrap metal that the Administrator promulgates under the Solid Waste Disposal Act [42
U.S.C. 6901 et seq.] subsequent to November 29,
1999, and with regard to transactions occurring
after the effective date of such regulations or
standards; and
(C) the person did not melt the scrap metal
prior to the transaction.
(2) For purposes of paragraph (1)(C), melting of
scrap metal does not include the thermal separation of 2 or more materials due to differences
in their melting points (referred to as ‘‘sweating’’).
(3) For purposes of this subsection, the term
‘‘scrap metal’’ means bits and pieces of metal
parts (e.g., bars, turnings, rods, sheets, wire) or
metal pieces that may be combined together
with bolts or soldering (e.g., radiators, scrap
automobiles, railroad box cars), which when
worn or superfluous can be recycled, except for
scrap metals that the Administrator excludes
from this definition by regulation.
(e) Transactions involving batteries
Transactions involving spent lead-acid batteries, spent nickel-cadmium batteries, or other
spent batteries shall be deemed to be arranging
for recycling if the person who arranged for the
transaction (by selling recyclable material or
otherwise arranging for the recycling of
recyclable material) can demonstrate by a preponderance of the evidence that at the time of
the transaction—
(1) the person met the criteria set forth in
subsection (c) of this section with respect to
the spent lead-acid batteries, spent nickel-cadmium batteries, or other spent batteries, but
the person did not recover the valuable components of such batteries; and

Page 6894

(2)(A) with respect to transactions involving
lead-acid batteries, the person was in compliance with applicable Federal environmental
regulations or standards, and any amendments
thereto, regarding the storage, transport,
management, or other activities associated
with the recycling of spent lead-acid batteries;
(B) with respect to transactions involving
nickel-cadmium batteries, Federal environmental regulations or standards are in effect
regarding the storage, transport, management, or other activities associated with the
recycling of spent nickel-cadmium batteries,
and the person was in compliance with applicable regulations or standards or any amendments thereto; or
(C) with respect to transactions involving
other spent batteries, Federal environmental
regulations or standards are in effect regarding the storage, transport, management, or
other activities associated with the recycling
of such batteries, and the person was in compliance with applicable regulations or standards or any amendments thereto.
(f) Exclusions
(1) The exemptions set forth in subsections (c),
(d), and (e) of this section shall not apply if—
(A) the person had an objectively reasonable
basis to believe at the time of the recycling
transaction—
(i) that the recyclable material would not
be recycled;
(ii) that the recyclable material would be
burned as fuel, or for energy recovery or incineration; or
(iii) for transactions occurring before 90
days after November 29, 1999, that the consuming facility was not in compliance with
a substantive (not procedural or administrative) provision of any Federal, State, or
local environmental law or regulation, or
compliance order or decree issued pursuant
thereto, applicable to the handling, processing, reclamation, or other management activities associated with the recyclable material;
(B) the person had reason to believe that
hazardous substances had been added to the
recyclable material for purposes other than
processing for recycling; or
(C) the person failed to exercise reasonable
care with respect to the management and handling of the recyclable material (including adhering to customary industry practices current at the time of the recycling transaction
designed to minimize, through source control,
contamination of the recyclable material by
hazardous substances).
(2) For purposes of this subsection, an objectively reasonable basis for belief shall be determined using criteria that include (but are not
limited to) the size of the person’s business, customary industry practices (including customary
industry practices current at the time of the recycling transaction designed to minimize,
through source control, contamination of the
recyclable material by hazardous substances),
the price paid in the recycling transaction, and
the ability of the person to detect the nature of

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

the consuming facility’s operations concerning
its handling, processing, reclamation, or other
management activities associated with the
recyclable material.
(3) For purposes of this subsection, a requirement to obtain a permit applicable to the handling, processing, reclamation, or other management activities associated with recyclable material shall be deemed to be a substantive provision.
(g) Effect on other liability
Nothing in this section shall be deemed to affect the liability of a person under paragraph (1)
or (2) of section 9607(a) of this title.
(h) Regulations
The Administrator has the authority, under
section 9615 of this title, to promulgate additional regulations concerning this section.
(i) Effect on pending or concluded actions
The exemptions provided in this section shall
not affect any concluded judicial or administrative action or any pending judicial action initiated by the United States prior to November 29,
1999.
(j) Liability for attorney’s fees for certain actions
Any person who commences an action in contribution against a person who is not liable by
operation of this section shall be liable to that
person for all reasonable costs of defending that
action, including all reasonable attorney’s and
expert witness fees.
(k) Relationship to liability under other laws
Nothing in this section shall affect—
(1) liability under any other Federal, State,
or local statute or regulation promulgated
pursuant to any such statute, including any
requirements promulgated by the Administrator under the Solid Waste Disposal Act [42
U.S.C. 6901 et seq.]; or
(2) the ability of the Administrator to promulgate regulations under any other statute,
including the Solid Waste Disposal Act.
(l) Limitation on statutory construction
Nothing in this section shall be construed to—
(1) affect any defenses or liabilities of any
person to whom subsection (a)(1) of this section does not apply; or
(2) create any presumption of liability
against any person to whom subsection (a)(1)
of this section does not apply.
(Pub. L. 96–510, title I, § 127, as added Pub. L.
106–113, div. B, § 1000(a)(9) [title VI, § 6001(b)(1)],
Nov. 29, 1999, 113 Stat. 1536, 1501A–599.)
REFERENCES IN TEXT
The Solid Waste Disposal Act, referred to in subsecs.
(d)(1)(B) and (k), is title II of Pub. L. 89–272, Oct. 20,
1965, 79 Stat. 997, as amended generally by Pub. L.
94–580, § 2, Oct. 21, 1976, 90 Stat. 2795, which is classified
generally to chapter 82 (§ 6901 et seq.) of this title. For
complete classification of this Act to the Code, see
Short Title note set out under section 6901 of this title
and Tables.
SUPERFUND RECYCLING EQUITY; PURPOSES
Pub. L. 106–113, div. B, § 1000(a)(9) [title VI, § 6001(a)],
Nov. 29, 1999, 113 Stat. 1536, 1501A–598, provided that:
‘‘The purposes of this section [enacting this section]
are—

§ 9628

‘‘(1) to promote the reuse and recycling of scrap
material in furtherance of the goals of waste minimization and natural resource conservation while
protecting human health and the environment;
‘‘(2) to create greater equity in the statutory treatment of recycled versus virgin materials; and
‘‘(3) to remove the disincentives and impediments
to recycling created as an unintended consequence of
the 1980 Superfund liability provisions.’’

§ 9628. State response programs
(a) Assistance to States
(1) In general
(A) States
The Administrator may award a grant to a
State or Indian tribe that—
(i) has a response program that includes
each of the elements, or is taking reasonable steps to include each of the elements,
listed in paragraph (2); or
(ii) is a party to a memorandum of
agreement with the Administrator for voluntary response programs.
(B) Use of grants by States
(i) In general
A State or Indian tribe may use a grant
under this subsection to establish or enhance the response program of the State or
Indian tribe.
(ii) Additional uses
In addition to the uses under clause (i),
a State or Indian tribe may use a grant
under this subsection to—
(I) capitalize a revolving loan fund for
brownfield remediation under section
9604(k)(3) of this title; or
(II) purchase insurance or develop a
risk sharing pool, an indemnity pool, or
insurance mechanism to provide financing for response actions under a State response program.
(2) Elements
The elements of a State or Indian tribe response program referred to in paragraph
(1)(A)(i) are the following:
(A) Timely survey and inventory of
brownfield sites in the State.
(B) Oversight and enforcement authorities
or other mechanisms, and resources, that
are adequate to ensure that—
(i) a response action will—
(I) protect human health and the environment; and
(II) be conducted in accordance with
applicable Federal and State law; and
(ii) if the person conducting the response
action fails to complete the necessary response activities, including operation and
maintenance or long-term monitoring activities, the necessary response activities
are completed.
(C) Mechanisms and resources to provide
meaningful opportunities for public participation, including—
(i) public access to documents that the
State, Indian tribe, or party conducting
the cleanup is relying on or developing in

§ 9628

TITLE 42—THE PUBLIC HEALTH AND WELFARE
making cleanup decisions or conducting
site activities;
(ii) prior notice and opportunity for comment on proposed cleanup plans and site
activities; and
(iii) a mechanism by which—
(I) a person that is or may be affected
by a release or threatened release of a
hazardous substance, pollutant, or contaminant at a brownfield site located in
the community in which the person
works or resides may request the conduct of a site assessment; and
(II) an appropriate State official shall
consider and appropriately respond to a
request under subclause (I).

(D) Mechanisms for approval of a cleanup
plan, and a requirement for verification by
and certification or similar documentation
from the State, an Indian tribe, or a licensed
site professional to the person conducting a
response action indicating that the response
is complete.
(3) Funding
There is authorized to be appropriated to
carry out this subsection $50,000,000 for each of
fiscal years 2002 through 2006.
(b) Enforcement in cases of a release subject to
State program
(1) Enforcement
(A) In general
Except as provided in subparagraph (B)
and subject to subparagraph (C), in the case
of an eligible response site at which—
(i) there is a release or threatened release of a hazardous substance, pollutant,
or contaminant; and
(ii) a person is conducting or has completed a response action regarding the specific release that is addressed by the response action that is in compliance with
the State program that specifically governs response actions for the protection of
public health and the environment,
the President may not use authority under
this chapter to take an administrative or judicial enforcement action under section
9606(a) of this title or to take a judicial enforcement action to recover response costs
under section 9607(a) of this title against the
person regarding the specific release that is
addressed by the response action.
(B) Exceptions
The President may bring an administrative or judicial enforcement action under
this chapter during or after completion of a
response action described in subparagraph
(A) with respect to a release or threatened
release at an eligible response site described
in that subparagraph if—
(i) the State requests that the President
provide assistance in the performance of a
response action;
(ii) the Administrator determines that
contamination has migrated or will migrate across a State line, resulting in the
need for further response action to protect

Page 6896

human health or the environment, or the
President determines that contamination
has migrated or is likely to migrate onto
property subject to the jurisdiction, custody, or control of a department, agency,
or instrumentality of the United States
and may impact the authorized purposes of
the Federal property;
(iii) after taking into consideration the
response activities already taken, the Administrator determines that—
(I) a release or threatened release may
present an imminent and substantial endangerment to public health or welfare
or the environment; and
(II) additional response actions are
likely to be necessary to address, prevent, limit, or mitigate the release or
threatened release; or
(iv) the Administrator, after consultation with the State, determines that information, that on the earlier of the date on
which cleanup was approved or completed,
was not known by the State, as recorded in
documents prepared or relied on in selecting or conducting the cleanup, has been
discovered regarding the contamination or
conditions at a facility such that the contamination or conditions at the facility
present a threat requiring further remediation to protect public health or welfare or
the environment. Consultation with the
State shall not limit the ability of the Administrator to make this determination.
(C) Public record
The limitations on the authority of the
President under subparagraph (A) apply only
at sites in States that maintain, update not
less than annually, and make available to
the public a record of sites, by name and location, at which response actions have been
completed in the previous year and are
planned to be addressed under the State program that specifically governs response actions for the protection of public health and
the environment in the upcoming year. The
public record shall identify whether or not
the site, on completion of the response action, will be suitable for unrestricted use
and, if not, shall identify the institutional
controls relied on in the remedy. Each State
and tribe receiving financial assistance
under subsection (a) of this section shall
maintain and make available to the public a
record of sites as provided in this paragraph.
(D) EPA notification
(i) In general
In the case of an eligible response site at
which there is a release or threatened release of a hazardous substance, pollutant,
or contaminant and for which the Administrator intends to carry out an action
that may be barred under subparagraph
(A), the Administrator shall—
(I) notify the State of the action the
Administrator intends to take; and
(II)(aa) wait 48 hours for a reply from
the State under clause (ii); or
(bb) if the State fails to reply to the
notification or if the Administrator

Page 6897

TITLE 42—THE PUBLIC HEALTH AND WELFARE

makes a determination under clause
(iii), take immediate action under that
clause.
(ii) State reply
Not later than 48 hours after a State receives notice from the Administrator
under clause (i), the State shall notify the
Administrator if—
(I) the release at the eligible response
site is or has been subject to a cleanup
conducted under a State program; and
(II) the State is planning to abate the
release or threatened release, any actions that are planned.
(iii) Immediate Federal action
The Administrator may take action immediately after giving notification under
clause (i) without waiting for a State reply
under clause (ii) if the Administrator determines that one or more exceptions
under subparagraph (B) are met.
(E) Report to Congress
Not later than 90 days after the date of initiation of any enforcement action by the
President under clause (ii), (iii), or (iv) of
subparagraph (B), the President shall submit
to Congress a report describing the basis for
the enforcement action, including specific
references to the facts demonstrating that
enforcement action is permitted under subparagraph (B).
(2) Savings provision
(A) Costs incurred prior to limitations
Nothing in paragraph (1) precludes the
President from seeking to recover costs incurred prior to January 11, 2002, or during a
period in which the limitations of paragraph
(1)(A) were not applicable.
(B) Effect on agreements between States and
EPA
Nothing in paragraph (1)—
(i) modifies or otherwise affects a memorandum of agreement, memorandum of understanding, or any similar agreement relating to this chapter between a State
agency or an Indian tribe and the Administrator that is in effect on or before January 11, 2002 (which agreement shall remain
in effect, subject to the terms of the agreement); or
(ii) limits the discretionary authority of
the President to enter into or modify an
agreement with a State, an Indian tribe, or
any other person relating to the implementation by the President of statutory
authorities.
(3) Effective date
This subsection applies only to response actions conducted after February 15, 2001.
(c) Effect on Federal laws
Nothing in this section affects any liability or
response authority under any Federal law, including—
(1) this chapter, except as provided in subsection (b) of this section;
(2) the Solid Waste Disposal Act (42 U.S.C.
6901 et seq.);

§§ 9631 to 9633

(3) the Federal Water Pollution Control Act
(33 U.S.C. 1251 et seq.);
(4) the Toxic Substances Control Act (15
U.S.C. 2601 et seq.); and
(5) the Safe Drinking Water Act (42 U.S.C.
300f et seq.).
(Pub. L. 96–510, title I, § 128, as added Pub. L.
107–118, title II, § 231(b), Jan. 11, 2002, 115 Stat.
2375.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (b)(1)(A), (B),
(2)(B)(i) and (c)(1), was in the original ‘‘this Act’’,
meaning Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767,
known as the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note
set out under section 9601 of this title and Tables.
The Solid Waste Disposal Act, referred to in subsec.
(c)(2), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat.
997, as amended generally by Pub. L. 94–580, § 2, Oct. 21,
1976, 90 Stat. 2795, which is classified generally to chapter 82 (§ 6901 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note
set out under section 6901 of this title and Tables.
The Federal Water Pollution Control Act, referred to
in subsec. (c)(3), is act June 30, 1948, ch. 758, as amended
generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 816,
which is classified generally to chapter 26 (§ 1251 et seq.)
of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the Code, see Short
Title note set out under section 1251 of Title 33 and
Tables.
The Toxic Substances Control Act, referred to in subsec. (c)(4), is Pub. L. 94–469, Oct. 11, 1976, 90 Stat. 2003,
which is classified generally to chapter 53 (§ 2601 et seq.)
of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note
set out under section 2601 of Title 15 and Tables.
The Safe Drinking Water Act, referred to in subsec.
(c)(5), is title XIV of act July 1, 1944, as added Dec. 16,
1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660, which is classified generally to subchapter XII (§ 300f et seq.) of chapter 6A of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 201 of this title and Tables.

SUBCHAPTER II—HAZARDOUS SUBSTANCE
RESPONSE REVENUE
PART A—HAZARDOUS SUBSTANCE RESPONSE
TRUST FUND
§§ 9631 to 9633. Repealed. Pub. L. 99–499, title V,
§ 517(c)(1), Oct. 17, 1986, 100 Stat. 1774
Section 9631, Pub. L. 96–510, title II, § 221, Dec. 11, 1980,
94 Stat. 2801; Pub. L. 99–499, title II, § 204, Oct. 17, 1986,
100 Stat. 1696, provided for establishment of a Hazardous Substances Superfund, so redesignated by section
204 of Pub. L. 99–499. See section 9507 of Title 26, Internal Revenue Code.
Section 9632, Pub. L. 96–510, title II, § 222, Dec. 11, 1980,
94 Stat. 2802, limited liability of United States to
amount in Trust Fund.
Section 9633, Pub. L. 96–510, title II, § 223, Dec. 11, 1980,
94 Stat. 2802, contained administrative provisions.
EFFECTIVE DATE OF REPEAL
Repeal by Pub. L. 99–499 effective Jan. 1, 1987, see section 517(e) of Pub. L. 99–499, set out as an Effective Date
note under section 9507 of Title 26, Internal Revenue
Code.

§ 9641

TITLE 42—THE PUBLIC HEALTH AND WELFARE

PART B—POST-CLOSURE LIABILITY TRUST FUND
§ 9641. Repealed. Pub. L. 99–499, title V, § 514(b),
Oct. 17, 1986, 100 Stat. 1767
Section, Pub. L. 96–510, title II, § 232, Dec. 11, 1980, 94
Stat. 2804, provided for establishment of the Post-closure Liability Trust Fund in the Treasury of the United
States.
EFFECTIVE DATE OF REPEAL
Pub. L. 99–499, title V, § 514(c), Oct. 17, 1986, 100 Stat.
1767, provided that:
‘‘(1) IN GENERAL.—The amendments made by this section [repealing this section and sections 4681 and 4682 of
Title 26, Internal Revenue Code] shall take effect on
October 1, 1983.
‘‘(2) WAIVER OF STATUTE OF LIMITATIONS.—If on the
date of the enactment of this Act [Oct. 17, 1986] (or at
any time within 1 year after such date of enactment)
refund or credit of any overpayment of tax resulting
from the application of this section is barred by any
law or rule of law, refund or credit of such overpayment
shall, nevertheless, be made or allowed if claim therefor is filed before the date 1 year after the date of the
enactment of this Act.’’

SUBCHAPTER III—MISCELLANEOUS
PROVISIONS
§ 9651. Reports and studies
(a) Implementation experiences; identification
and disposal of waste
(1) The President shall submit to the Congress,
within four years after December 11, 1980, a comprehensive report on experience with the implementation of this chapter including, but not
limited to—
(A) the extent to which the chapter and
Fund are effective in enabling Government to
respond to and mitigate the effects of releases
of hazardous substances;
(B) a summary of past receipts and disbursements from the Fund;
(C) a projection of any future funding needs
remaining after the expiration of authority to
collect taxes, and of the threat to public
health, welfare, and the environment posed by
the projected releases which create any such
needs;
(D) the record and experience of the Fund in
recovering Fund disbursements from liable
parties;
(E) the record of State participation in the
system of response, liability, and compensation established by this chapter;
(F) the impact of the taxes imposed by subchapter II 1 of this chapter on the Nation’s balance of trade with other countries;
(G) an assessment of the feasibility and desirability of a schedule of taxes which would
take into account one or more of the following: the likelihood of a release of a hazardous
substance, the degree of hazard and risk of
harm to public health, welfare, and the environment resulting from any such release, incentives to proper handling, recycling, incineration, and neutralization of hazardous
wastes, and disincentives to improper or illegal handling or disposal of hazardous materials, administrative and reporting burdens on
1 See

References in Text note below.

Page 6898

Government and industry, and the extent to
which the tax burden falls on the substances
and parties which create the problems addressed by this chapter. In preparing the report, the President shall consult with appropriate Federal, State, and local agencies, affected industries and claimants, and such
other interested parties as he may find useful.
Based upon the analyses and consultation required by this subsection, the President shall
also include in the report any recommendations for legislative changes he may deem necessary for the better effectuation of the purposes of this chapter, including but not limited to recommendations concerning authorization levels, taxes, State participation, liability and liability limits, and financial responsibility provisions for the Response Trust
Fund and the Post-closure Liability Trust
Fund;
(H) an exemption from or an increase in the
substances or the amount of taxes imposed by
section 4661 of title 26 for copper, lead, and
zinc oxide, and for feedstocks when used in the
manufacture and production of fertilizers,
based upon the expenditure experience of the
Response Trust Fund;
(I) the economic impact of taxing coal-derived substances and recycled metals.
(2) The Administrator of the Environmental
Protection Agency (in consultation with the
Secretary of the Treasury) shall submit to the
Congress (i) within four years after December 11,
1980, a report identifying additional wastes designated by rule as hazardous after the effective
date of this chapter and pursuant to section 3001
of the Solid Waste Disposal Act [42 U.S.C. 6921]
and recommendations on appropriate tax rates
for such wastes for the Post-closure Liability
Trust Fund. The report shall, in addition, recommend a tax rate, considering the quantity
and potential danger to human health and the
environment posed by the disposal of any wastes
which the Administrator, pursuant to subsection 3001(b)(2)(B) and subsection 3001(b)(3)(A)
of the Solid Waste Disposal Act of 1980 [42 U.S.C.
6921(b)(2)(B) and 6921(b)(3)(A)], has determined
should be subject to regulation under subtitle C
of such Act [42 U.S.C. 6921 et seq.], (ii) within
three years after December 11, 1980, a report on
the necessity for and the adequacy of the revenue raised, in relation to estimated future requirements, of the Post-closure Liability Trust
Fund.
(b) Private insurance protection
The President shall conduct a study to determine (1) whether adequate private insurance
protection is available on reasonable terms and
conditions to the owners and operators of vessels and facilities subject to liability under section 9607 of this title, and (2) whether the market for such insurance is sufficiently competitive to assure purchasers of features such as a
reasonable range of deductibles, coinsurance
provisions, and exclusions. The President shall
submit the results of his study, together with
his recommendations, within two years of December 11, 1980, and shall submit an interim report on his study within one year of December
11, 1980.

Page 6899

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(c) Regulations respecting assessment of damages to natural resources
(1) The President, acting through Federal officials designated by the National Contingency
Plan published under section 9605 of this title,
shall study and, not later than two years after
December 11, 1980, shall promulgate regulations
for the assessment of damages for injury to, destruction of, or loss of natural resources resulting from a release of oil or a hazardous substance for the purposes of this chapter and section 1321(f)(4) and (5) of title 33. Notwithstanding
the failure of the President to promulgate the
regulations required under this subsection on
the required date, the President shall promulgate such regulations not later than 6 months
after October 17, 1986.
(2) Such regulations shall specify (A) standard
procedures for simplified assessments requiring
minimal field observation, including establishing measures of damages based on units of discharge or release or units of affected area, and
(B) alternative protocols for conducting assessments in individual cases to determine the type
and extent of short- and long-term injury, destruction, or loss. Such regulations shall identify the best available procedures to determine
such damages, including both direct and indirect
injury, destruction, or loss and shall take into
consideration factors including, but not limited
to, replacement value, use value, and ability of
the ecosystem or resource to recover.
(3) Such regulations shall be reviewed and revised as appropriate every two years.
(d) Issues, alternatives, and policy considerations involving selection of locations for
waste treatment, storage, and disposal facilities
The Administrator of the Environmental Protection Agency shall, in consultation with other
Federal agencies and appropriate representatives of State and local governments and nongovernmental agencies, conduct a study and report to the Congress within two years of December 11, 1980, on the issues, alternatives, and policy considerations involved in the selection of
locations for hazardous waste treatment, storage, and disposal facilities. This study shall include—
(A) an assessment of current and projected
treatment, storage, and disposal capacity
needs and shortfalls for hazardous waste by
management category on a State-by-State
basis;
(B) an evaluation of the appropriateness of a
regional approach to siting and designing hazardous waste management facilities and the
identification of hazardous waste management
regions, interstate or intrastate, or both, with
similar hazardous waste management needs;
(C) solicitation and analysis of proposals for
the construction and operation of hazardous
waste management facilities by nongovernmental entities, except that no proposal solicited under terms of this subsection shall be
analyzed if it involves cost to the United
States Government or fails to comply with the
requirements of subtitle C of the Solid Waste
Disposal Act [42 U.S.C. 6921 et seq.] and other
applicable provisions of law;

§ 9651

(D) recommendations on the appropriate balance between public and private sector involvement in the siting, design, and operation
of new hazardous waste management facilities;
(E) documentation of the major reasons for
public opposition to new hazardous waste
management facilities; and
(F) an evaluation of the various options for
overcoming obstacles to siting new facilities,
including needed legislation for implementing
the most suitable option or options.
(e) Adequacy of existing common law and statutory remedies
(1) In order to determine the adequacy of existing common law and statutory remedies in
providing legal redress for harm to man and the
environment caused by the release of hazardous
substances into the environment, there shall be
submitted to the Congress a study within twelve
months of December 11, 1980.
(2) This study shall be conducted with the assistance of the American Bar Association, the
American Law Institute, the Association of
American Trial Lawyers, and the National Association of State Attorneys General with the
President of each entity selecting three members from each organization to conduct the
study. The study chairman and one reporter
shall be elected from among the twelve members
of the study group.
(3) As part of their review of the adequacy of
existing common law and statutory remedies,
the study group shall evaluate the following:
(A) the nature, adequacy, and availability of
existing remedies under present law in compensating for harm to man from the release of
hazardous substances;
(B) the nature of barriers to recovery (particularly with respect to burdens of going forward and of proof and relevancy) and the role
such barriers play in the legal system;
(C) the scope of the evidentiary burdens
placed on the plaintiff in proving harm from
the release of hazardous substances, particularly in light of the scientific uncertainty over
causation with respect to—
(i) carcinogens, mutagens, and teratogens,
and
(ii) the human health effects of exposure
to low doses of hazardous substances over
long periods of time;
(D) the nature and adequacy of existing remedies under present law in providing compensation for damages to natural resources
from the release of hazardous substances;
(E) the scope of liability under existing law
and the consequences, particularly with respect to obtaining insurance, of any changes
in such liability;
(F) barriers to recovery posed by existing
statutes of limitations.
(4) The report shall be submitted to the Congress with appropriate recommendations. Such
recommendations shall explicitly address—
(A) the need for revisions in existing statutory or common law, and
(B) whether such revisions should take the
form of Federal statutes or the development of

§ 9651

TITLE 42—THE PUBLIC HEALTH AND WELFARE

a model code which is recommended for adoption by the States.
(5) The Fund shall pay administrative expenses incurred for the study. No expenses shall
be available to pay compensation, except expenses on a per diem basis for the one reporter,
but in no case shall the total expenses of the
study exceed $300,000.
(f) Modification of national contingency plan
The President, acting through the Administrator of the Environmental Protection Agency,
the Secretary of Transportation, the Administrator of the Occupational Safety and Health
Administration, and the Director of the National Institute for Occupational Safety and
Health shall study and, not later than two years
after December 11, 1980, shall modify the national contingency plan to provide for the protection of the health and safety of employees involved in response actions.
(g) Insurability study
(1) Study by Comptroller General
The Comptroller General of the United
States, in consultation with the persons described in paragraph (2), shall undertake a
study to determine the insurability, and effects on the standard of care, of the liability of
each of the following:
(A) Persons who generate hazardous substances: liability for costs and damages
under this chapter.
(B) Persons who own or operate facilities:
liability for costs and damages under this
chapter.
(C) Persons liable for injury to persons or
property caused by the release of hazardous
substances into the environment.
(2) Consultation
In conducting the study under this subsection, the Comptroller General shall consult
with the following:
(A) Representatives of the Administrator.
(B) Representatives of persons described in
subparagraphs (A) through (C) of the preceding paragraph.
(C) Representatives (i) of groups or organizations comprised generally of persons adversely affected by releases or threatened releases of hazardous substances and (ii) of
groups organized for protecting the interests
of consumers.
(D) Representatives of property and casualty insurers.
(E) Representatives of reinsurers.
(F) Persons responsible for the regulation
of insurance at the State level.
(3) Items evaluated
The study under this section shall include,
among other matters, an evaluation of the following:
(A) Current economic conditions in, and
the future outlook for, the commercial market for insurance and reinsurance.
(B) Current trends in statutory and common law remedies.
(C) The impact of possible changes in traditional standards of liability, proof, evidence, and damages on existing statutory
and common law remedies.

Page 6900

(D) The effect of the standard of liability
and extent of the persons upon whom it is
imposed under this chapter on the protection of human health and the environment
and on the availability, underwriting, and
pricing of insurance coverage.
(E) Current trends, if any, in the judicial
interpretation and construction of applicable insurance contracts, together with the
degree to which amendments in the language of such contracts and the description
of the risks assumed, could affect such
trends.
(F) The frequency and severity of a representative sample of claims closed during
the calendar year immediately preceding October 17, 1986.
(G) Impediments to the acquisition of insurance or other means of obtaining liability
coverage other than those referred to in the
preceding subparagraphs.
(H) The effects of the standards of liability
and financial responsibility requirements
imposed pursuant to this chapter on the cost
of, and incentives for, developing and demonstrating alternative and innovative treatment technologies, as well as waste generation minimization.
(4) Submission
The Comptroller General shall submit a report on the results of the study to Congress
with appropriate recommendations within 12
months after October 17, 1986.
(Pub. L. 96–510, title III, § 301, Dec. 11, 1980, 94
Stat. 2805; Pub. L. 99–499, title I, § 107(d)(3), title
II, §§ 208, 212, Oct. 17, 1986, 100 Stat. 1630, 1707,
1726; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat.
2095.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a)(1)(A), (E), (G),
(c)(1), and (g), was in the original ‘‘this Act’’, meaning
Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, as amended,
known as the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, which enacted
this chapter, section 6911a of this title, and sections
4611, 4612, 4661, 4662, 4681, and 4682 of Title 26, Internal
Revenue Code, amended section 6911 of this title, section 1364 of Title 33, Navigation and Navigable Waters,
and section 11901 of Title 49, Transportation, and enacted provisions set out as notes under section 6911 of
this title and sections 1 and 4611 of Title 26. For complete classification of this Act to the Code, see Short
Title note set out under section 9601 of this title and
Tables.
Subchapter II of this chapter, referred to in subsec.
(a)(1)(F), was in the original ‘‘title II of this Act’’,
meaning title II of Pub. L. 96–510, Dec. 11, 1980, 94 Stat.
2796, known as the Hazardous Substance Response Revenue Act of 1980, which enacted subchapter II of this
chapter and sections 4611, 4612, 4661, 4662, 4681, and 4682
of Title 26. Sections 221 to 223 and 232 of Pub. L. 96–510,
which were classified to sections 9631 to 9633 and 9641 of
this title, comprising subchapter II of this chapter,
were repealed by Pub. L. 99–499, title V, §§ 514(b),
517(c)(1), Oct. 17, 1986, 100 Stat. 1767, 1774. For complete
classification of title II to the Code, see Short Title of
1980 Amendment note set out under section 1 of Title 26
and Tables.
For effective date of this chapter, referred to in subsec. (a)(2), see section 9652 of this title.
Subsection 3001(b)(2)(B) and subsection 3001(b)(3)(A) of
the Solid Waste Disposal Act of 1980, referred to in subsec. (a)(2), probably mean section 3001(b)(2)(B) and

Page 6901

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(3)(A) of the Solid Waste Disposal Act, as amended by
the Solid Waste Disposal Act Amendments of 1980,
which enacted section 6921(b)(2)(B) and (3)(A) of this
title.
The Solid Waste Disposal Act, referred to in subsecs.
(a)(2) and (d)(C), is title II of Pub. L. 89–272, Oct. 20,
1965, 79 Stat. 997, as amended generally by Pub. L.
94–580, § 2, Oct. 21, 1976, 90 Stat. 2795. Subtitle C of the
Solid Waste Disposal Act is classified generally to subchapter III (§ 6921 et seq.) of chapter 82 of this title. For
complete classification of this Act to the Code, see
Short Title note set out under section 6901 of this title
and Tables.
CODIFICATION
Subsec. (h) of this section, which required the Administrator of the Environmental Protection Agency to
submit an annual report to Congress of such Agency on
the progress achieved in implementing this chapter
during the preceding fiscal year, required the Inspector
General of the Agency to review the report for reasonableness and accuracy and submit to Congress, as a
part of that report, a report on the results of the review, and required the appropriate authorizing committees of Congress, after receiving those reports, to conduct oversight hearings to ensure that this chapter is
being implemented according to the purposes of this
chapter and congressional intent in enacting this chapter, terminated, effective May 15, 2000, pursuant to section 3003 of Pub. L. 104–66, as amended, set out as a note
under section 1113 of Title 31, Money and Finance. See,
also, the 5th item on page 164 of House Document No.
103–7.
AMENDMENTS
1986—Subsec. (a)(1)(H). Pub. L. 99–514 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue
Code of 1954’’, which for purposes of codification was
translated as ‘‘title 26’’ thus requiring no change in
text.
Subsec. (c)(1). Pub. L. 99–499, § 107(d)(3), inserted at
end ‘‘Notwithstanding the failure of the President to
promulgate the regulations required under this subsection on the required date, the President shall promulgate such regulations not later than 6 months after
October 17, 1986.’’
Subsec. (g). Pub. L. 99–499, § 208, added subsec. (g).
Subsec. (h). Pub. L. 99–499, § 212, added subsec. (h).

§ 9652. Effective dates; savings provisions
(a) Unless otherwise provided, all provisions of
this chapter shall be effective on December 11,
1980.
(b) Any regulation issued pursuant to any provisions of section 1321 of title 33 which is repealed or superseded by this chapter and which
is in effect on the date immediately preceding
the effective date of this chapter shall be
deemed to be a regulation issued pursuant to the
authority of this chapter and shall remain in
full force and effect unless or until superseded
by new regulations issued thereunder.
(c) Any regulation—
(1) respecting financial responsibility,
(2) issued pursuant to any provision of law
repealed or superseded by this chapter, and
(3) in effect on the date immediately preceding the effective date of this chapter shall be
deemed to be a regulation issued pursuant to
the authority of this chapter and shall remain
in full force and effect unless or until superseded by new regulations issued thereunder.
(d) Nothing in this chapter shall affect or modify in any way the obligations or liabilities of
any person under other Federal or State law, in-

§ 9654

cluding common law, with respect to releases of
hazardous substances or other pollutants or contaminants. The provisions of this chapter shall
not be considered, interpreted, or construed in
any way as reflecting a determination, in part
or whole, of policy regarding the inapplicability
of strict liability, or strict liability doctrines, to
activities relating to hazardous substances, pollutants, or contaminants or other such activities.
(Pub. L. 96–510, title III, § 302, Dec. 11, 1980, 94
Stat. 2808.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a), (b), (c)(2), (3),
and (d), was in the original ‘‘this Act’’, meaning Pub. L.
96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, which is classified principally to
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
9601 of this title and Tables.

§ 9653. Repealed. Pub. L. 99–499, title V, § 511(b),
Oct. 17, 1986, 100 Stat. 1761
Section, Pub. L. 96–510, title III, § 303, Dec. 11, 1980, 94
Stat. 2808, provided for termination of authority to collect taxes under this chapter.
EFFECTIVE DATE OF REPEAL
Repeal effective Jan. 1, 1987, see section 511(c) of Pub.
L. 99–499, set out as an Effective Date of 1986 Amendment note under section 4611 of Title 26, Internal Revenue Code.

§ 9654. Applicability of Federal water pollution
control funding, etc., provisions
(a) Omitted
(b) One-half of the unobligated balance remaining before December 11, 1980, under subsection (k) 1 of section 1321 of title 33 and all
sums appropriated under section 1364(b) 1 of title
33 shall be transferred to the Fund established
under subchapter II 1 of this chapter.
(c) In any case in which any provision of section 1321 of title 33 is determined to be in conflict with any provisions of this chapter, the
provisions of this chapter shall apply.
(Pub. L. 96–510, title III, § 304, Dec. 11, 1980, 94
Stat. 2809.)
REFERENCES IN TEXT
Subsection (k) of section 1321 of title 33, referred to
in subsec. (b), was repealed by Pub. L. 101–380, title II,
§ 2002(b)(2), Aug. 18, 1990, 104 Stat. 507.
Section 1364(b) of title 33, referred to in subsec. (b),
was repealed by Pub. L. 96–510, title III, § 304(a), Dec. 11,
1980, 94 Stat. 2809.
Subchapter II of this chapter, referred to in subsec.
(b), was in the original ‘‘title II of this Act’’, meaning
title II of Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2796,
known as the Hazardous Substance Response Revenue
Act of 1980, which enacted subchapter II of this chapter
and sections 4611, 4612, 4661, 4662, 4681, and 4682 of Title
26, Internal Revenue Code. Sections 221 to 223 and 232 of
Pub. L. 96–510, which were classified to sections 9631 to
9633 and 9641 of this title, comprising subchapter II of
this chapter, were repealed by Pub. L. 99–499, title V,
§§ 514(b), 517(c)(1), Oct. 17, 1986, 100 Stat. 1767, 1774. For
complete classification of title II to the Code, see Short
Title of 1980 Amendment note set out under section 1 of
Title 26 and Tables.
1 See

References in Text note below.

§ 9655

TITLE 42—THE PUBLIC HEALTH AND WELFARE

This chapter, referred to in subsec. (c), was in the
original ‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, which is classified principally to this chapter.
For complete classification of this Act to the Code, see
Short Title note set out under section 9601 of this title
and Tables.
CODIFICATION
Subsec. (a) of this section repealed section 1364(b) of
Title 33, Navigation and Navigable Waters.

§ 9655. Legislative veto of rule or regulation
(a) Transmission to Congress upon promulgation
or repromulgation of rule or regulation; disapproval procedures
Notwithstanding any other provision of law,
simultaneously with promulgation or repromulgation of any rule or regulation under
authority of subchapter I of this chapter, the
head of the department, agency, or instrumentality promulgating such rule or regulation
shall transmit a copy thereof to the Secretary of
the Senate and the Clerk of the House of Representatives. Except as provided in subsection
(b) of this section, the rule or regulation shall
not become effective, if—
(1) within ninety calendar days of continuous session of Congress after the date of promulgation, both Houses of Congress adopt a
concurrent resolution, the matter after the resolving clause of which is as follows: ‘‘That
Congress disapproves the rule or regulation
promulgated
by
the
dealing
with the matter of
, which rule
or regulation was transmitted to Congress
on
.’’, the blank spaces therein
being appropriately filled; or
(2) within sixty calendar days of continuous
session of Congress after the date of promulgation, one House of Congress adopts such a concurrent resolution and transmits such resolution to the other House, and such resolution is
not disapproved by such other House within
thirty calendar days of continuous session of
Congress after such transmittal.
(b) Approval; effective dates
If, at the end of sixty calendar days of continuous session of Congress after the date of promulgation of a rule or regulation, no committee
of either House of Congress has reported or been
discharged from further consideration of a concurrent resolution disapproving the rule or regulation and neither House has adopted such a resolution, the rule or regulation may go into effect immediately. If, within such sixty calendar
days, such a committee has reported or been discharged from further consideration of such a
resolution, or either House has adopted such a
resolution, the rule or regulation may go into
effect not sooner than ninety calendar days of
continuous session of Congress after such rule is
prescribed unless disapproved as provided in subsection (a) of this section.
(c) Sessions of Congress as applicable
For purposes of subsections (a) and (b) of this
section—
(1) continuity of session is broken only by an
adjournment of Congress sine die; and

Page 6902

(2) the days on which either House is not in
session because of an adjournment of more
than three days to a day certain are excluded
in the computation of thirty, sixty, and ninety
calendar days of continuous session of Congress.
(d) Congressional inaction on, or rejection of,
resolution of disapproval
Congressional inaction on, or rejection of, a
resolution of disapproval shall not be deemed an
expression of approval of such rule or regulation.
(Pub. L. 96–510, title III, § 305, Dec. 11, 1980, 94
Stat. 2809.)
§ 9656. Transportation of hazardous substances;
listing as hazardous material; liability for release
(a) Each hazardous substance which is listed
or designated as provided in section 9601(14) of
this title shall, within 30 days after October 17,
1986, or at the time of such listing or designation, whichever is later, be listed and regulated
as a hazardous material under chapter 51 of title
49.
(b) A common or contract carrier shall be liable under other law in lieu of section 9607 of this
title for damages or remedial action resulting
from the release of a hazardous substance during
the course of transportation which commenced
prior to the effective date of the listing and regulation of such substance as a hazardous material under chapter 51 of title 49, or for substances listed pursuant to subsection (a) of this
section, prior to the effective date of such listing: Provided, however, That this subsection shall
not apply where such a carrier can demonstrate
that he did not have actual knowledge of the
identity or nature of the substance released.
(Pub. L. 96–510, title III, § 306(a), (b), Dec. 11, 1980,
94 Stat. 2810; Pub. L. 99–499, title II, § 202, Oct. 17,
1986, 100 Stat. 1695.)
CODIFICATION
In subsecs. (a) and (b), ‘‘chapter 51 of title 49’’ substituted for ‘‘the Hazardous Materials Transportation
Act [49 App. U.S.C. 1801 et seq.]’’ on authority of Pub.
L. 103–272, § 6(b), July 5, 1994, 108 Stat. 1378, the first section of which enacted subtitles II, III, and V to X of
Title 49, Transportation.
AMENDMENTS
1986—Subsec. (a). Pub. L. 99–499, § 202(a), substituted
‘‘within 30 days after October 17, 1986’’ for ‘‘within ninety days after December 11, 1980’’ and inserted ‘‘and regulated’’ before ‘‘as a hazardous material’’.
Subsec. (b). Pub. L. 99–499, § 202(b), inserted ‘‘and regulation’’ after ‘‘prior to the effective date of the listing’’.

§ 9657. Separability; contribution
If any provision of this chapter, or the application of any provision of this chapter to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances and the remainder of this chapter
shall not be affected thereby. If an administrative settlement under section 9622 of this title
has the effect of limiting any person’s right to
obtain contribution from any party to such set-

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

tlement, and if the effect of such limitation
would constitute a taking without just compensation in violation of the fifth amendment of
the Constitution of the United States, such person shall not be entitled, under other laws of the
United States, to recover compensation from
the United States for such taking, but in any
such case, such limitation on the right to obtain
contribution shall be treated as having no force
and effect.
(Pub. L. 96–510, title III, § 308, Dec. 11, 1980, 94
Stat. 2811; Pub. L. 99–499, title I, § 122(b), Oct. 17,
1986, 100 Stat. 1688.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 96–510, Dec. 11, 1980, 94
Stat. 2767, as amended, known as the Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980, which enacted this chapter, section 6911a of
this title, and sections 4611, 4612, 4661, 4662, 4681, and
4682 of Title 26, Internal Revenue Code, amended section 6911 of this title, section 1364 of Title 33, Navigation and Navigable Waters, and section 11901 of Title 49,
Transportation, and enacted provisions set out as notes
under section 6911 of this title and sections 1 and 4611
of Title 26. For complete classification of this Act to
the Code, see Short Title note set out under section
9601 of this title and Tables.
AMENDMENTS
1986—Pub. L. 99–499 inserted sentence at end relating
to administrative settlements under section 9622 of this
title which have effect of limiting any person’s right to
obtain contribution from any party to such settlement.

§ 9658. Actions under State law for damages from
exposure to hazardous substances
(a) State statutes of limitations for hazardous
substance cases
(1) Exception to State statutes
In the case of any action brought under
State law for personal injury, or property
damages, which are caused or contributed to
by exposure to any hazardous substance, or
pollutant or contaminant, released into the
environment from a facility, if the applicable
limitations period for such action (as specified
in the State statute of limitations or under
common law) provides a commencement date
which is earlier than the federally required
commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such
State statute.
(2) State law generally applicable
Except as provided in paragraph (1), the statute of limitations established under State law
shall apply in all actions brought under State
law for personal injury, or property damages,
which are caused or contributed to by exposure to any hazardous substance, or pollutant
or contaminant, released into the environment from a facility.
(3) Actions under section 9607
Nothing in this section shall apply with respect to any cause of action brought under
section 9607 of this title.
(b) Definitions
As used in this section—

§ 9659

(1) Subchapter I terms
The terms used in this section shall have the
same meaning as when used in subchapter I of
this chapter.
(2) Applicable limitations period
The term ‘‘applicable limitations period’’
means the period specified in a statute of limitations during which a civil action referred to
in subsection (a)(1) of this section may be
brought.
(3) Commencement date
The term ‘‘commencement date’’ means the
date specified in a statute of limitations as
the beginning of the applicable limitations period.
(4) Federally required commencement date
(A) In general
Except as provided in subparagraph (B),
the term ‘‘federally required commencement
date’’ means the date the plaintiff knew (or
reasonably should have known) that the personal injury or property damages referred to
in subsection (a)(1) of this section were
caused or contributed to by the hazardous
substance or pollutant or contaminant concerned.
(B) Special rules
In the case of a minor or incompetent
plaintiff, the term ‘‘federally required commencement date’’ means the later of the
date referred to in subparagraph (A) or the
following:
(i) In the case of a minor, the date on
which the minor reaches the age of majority, as determined by State law, or has a
legal representative appointed.
(ii) In the case of an incompetent individual, the date on which such individual
becomes competent or has had a legal representative appointed.
(Pub. L. 96–510, title III, § 309, as added Pub. L.
99–499, title II, § 203(a), Oct. 17, 1986, 100 Stat.
1695.)
EFFECTIVE DATE
Pub. L. 99–499, title II, § 203(b), Oct. 17, 1986, 100 Stat.
1696, provided that: ‘‘The amendment made by subsection (a) of this section [enacting this section] shall
take effect with respect to actions brought after December 11, 1980.’’

§ 9659. Citizens suits
(a) Authority to bring civil actions
Except as provided in subsections (d) and (e) of
this section and in section 9613(h) of this title
(relating to timing of judicial review), any person may commence a civil action on his own behalf—
(1) against any person (including the United
States and any other governmental instrumentality or agency, to the extent permitted
by the eleventh amendment to the Constitution) who is alleged to be in violation of any
standard, regulation, condition, requirement,
or order which has become effective pursuant
to this chapter (including any provision of an
agreement under section 9620 of this title, relating to Federal facilities); or

§ 9660

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(2) against the President or any other officer
of the United States (including the Administrator of the Environmental Protection Agency and the Administrator of the ATSDR)
where there is alleged a failure of the President or of such other officer to perform any
act or duty under this chapter, including an
act or duty under section 9620 of this title (relating to Federal facilities), which is not discretionary with the President or such other officer.
Paragraph (2) shall not apply to any act or duty
under the provisions of section 9660 of this title
(relating to research, development, and demonstration).
(b) Venue
(1) Actions under subsection (a)(1)
Any action under subsection (a)(1) of this
section shall be brought in the district court
for the district in which the alleged violation
occurred.
(2) Actions under subsection (a)(2)
Any action brought under subsection (a)(2)
of this section may be brought in the United
States District Court for the District of Columbia.
(c) Relief
The district court shall have jurisdiction in
actions brought under subsection (a)(1) of this
section to enforce the standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section
9620 of this title), to order such action as may be
necessary to correct the violation, and to impose any civil penalty provided for the violation.
The district court shall have jurisdiction in actions brought under subsection (a)(2) of this section to order the President or other officer to
perform the act or duty concerned.
(d) Rules applicable to subsection (a)(1) actions
(1) Notice
No action may be commenced under subsection (a)(1) of this section before 60 days
after the plaintiff has given notice of the violation to each of the following:
(A) The President.
(B) The State in which the alleged violation occurs.
(C) Any alleged violator of the standard,
regulation, condition, requirement, or order
concerned (including any provision of an
agreement under section 9620 of this title).
Notice under this paragraph shall be given in
such manner as the President shall prescribe
by regulation.
(2) Diligent prosecution
No action may be commenced under paragraph (1) of subsection (a) of this section if the
President has commenced and is diligently
prosecuting an action under this chapter, or
under the Solid Waste Disposal Act [42 U.S.C.
6901 et seq.] to require compliance with the
standard, regulation, condition, requirement,
or order concerned (including any provision of
an agreement under section 9620 of this title).
(e) Rules applicable to subsection (a)(2) actions
No action may be commenced under paragraph
(2) of subsection (a) of this section before the

Page 6904

60th day following the date on which the plaintiff gives notice to the Administrator or other
department, agency, or instrumentality that the
plaintiff will commence such action. Notice
under this subsection shall be given in such
manner as the President shall prescribe by regulation.
(f) Costs
The court, in issuing any final order in any action brought pursuant to this section, may
award costs of litigation (including reasonable
attorney and expert witness fees) to the prevailing or the substantially prevailing party whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is
sought, require the filing of a bond or equivalent
security in accordance with the Federal Rules of
Civil Procedure.
(g) Intervention
In any action under this section, the United
States or the State, or both, if not a party may
intervene as a matter of right. For other provisions regarding intervention, see section 9613 of
this title.
(h) Other rights
This chapter does not affect or otherwise impair the rights of any person under Federal,
State, or common law, except with respect to
the timing of review as provided in section
9613(h) of this title or as otherwise provided in
section 9658 of this title (relating to actions
under State law).
(i) Definitions
The terms used in this section shall have the
same meanings as when used in subchapter I of
this chapter.
(Pub. L. 96–510, title III, § 310, as added Pub. L.
99–499, title II, § 206, Oct. 17, 1986, 100 Stat. 1703.)
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a), (d)(2), and
(h), was in the original ‘‘this Act’’, meaning Pub. L.
96–510, Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, which is classified principally to
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
9601 of this title and Tables.
The Solid Waste Disposal Act, referred to in subsec.
(d)(2), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat.
997, as amended generally by Pub. L. 94–580, § 2, Oct. 21,
1976, 90 Stat. 2795, which is classified generally to chapter 82 (§ 6901 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note
set out under section 6901 of this title and Tables.
The Federal Rules of Civil Procedure, referred to in
subsec. (f), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

§ 9660. Research, development, and demonstration
(a) Hazardous substance research and training
(1) Authorities of Secretary
The Secretary of Health and Human Services (hereinafter in this subsection referred to
as the Secretary), in consultation with the Administrator, shall establish and support a
basic research and training program (through

Page 6905

TITLE 42—THE PUBLIC HEALTH AND WELFARE

grants, cooperative agreements, and contracts) consisting of the following:
(A) Basic research (including epidemiologic and ecologic studies) which may include each of the following:
(i) Advanced techniques for the detection, assessment, and evaluation of the effects on human health of hazardous substances.
(ii) Methods to assess the risks to human
health presented by hazardous substances.
(iii) Methods and technologies to detect
hazardous substances in the environment
and basic biological, chemical, and physical methods to reduce the amount and
toxicity of hazardous substances.
(B) Training, which may include each of
the following:
(i) Short courses and continuing education for State and local health and environment agency personnel and other personnel engaged in the handling of hazardous substances, in the management of facilities at which hazardous substances are
located, and in the evaluation of the hazards to human health presented by such facilities.
(ii) Graduate or advanced training in environmental and occupational health and
safety and in the public health and engineering aspects of hazardous waste control.
(iii) Graduate training in the geosciences, including hydrogeology, geological engineering, geophysics, geochemistry,
and related fields necessary to meet professional personnel needs in the public and
private sectors and to effectuate the purposes of this chapter.
(2) Director of NIEHS
The Director of the National Institute for
Environmental Health Sciences shall cooperate fully with the relevant Federal agencies
referred to in subparagraph (A) of paragraph
(5) in carrying out the purposes of this section.
(3) Recipients of grants, etc.
A grant, cooperative agreement, or contract
may be made or entered into under paragraph
(1) with an accredited institution of higher
education. The institution may carry out the
research or training under the grant, cooperative agreement, or contract through contracts,
including contracts with any of the following:
(A) Generators of hazardous wastes.
(B) Persons involved in the detection, assessment, evaluation, and treatment of hazardous substances.
(C) Owners and operators of facilities at
which hazardous substances are located.
(D) State and local governments.
(4) Procedures
In making grants and entering into cooperative agreements and contracts under this subsection, the Secretary shall act through the
Director of the National Institute for Environmental Health Sciences. In considering the allocation of funds for training purposes, the Director shall ensure that at least one grant, cooperative agreement, or contract shall be

§ 9660

awarded for training described in each of
clauses (i), (ii), and (iii) of paragraph (1)(B).
Where applicable, the Director may choose to
operate training activities in cooperation with
the Director of the National Institute for Occupational Safety and Health. The procedures
applicable to grants and contracts under title
IV of the Public Health Service Act [42 U.S.C.
281 et seq.] shall be followed under this subsection.
(5) Advisory council
To assist in the implementation of this subsection and to aid in the coordination of research and demonstration and training activities funded from the Fund under this section,
the Secretary shall appoint an advisory council (hereinafter in this subsection referred to
as the ‘‘Advisory Council’’) which shall consist
of representatives of the following:
(A) The relevant Federal agencies.
(B) The chemical industry.
(C) The toxic waste management industry.
(D) Institutions of higher education.
(E) State and local health and environmental agencies.
(F) The general public.
(6) Planning
Within nine months after October 17, 1986,
the Secretary, acting through the Director of
the National Institute for Environmental
Health Sciences, shall issue a plan for the implementation of paragraph (1). The plan shall
include priorities for actions under paragraph
(1) and include research and training relevant
to scientific and technological issues resulting
from site specific hazardous substance response experience. The Secretary shall, to the
maximum extent practicable, take appropriate
steps to coordinate program activities under
this plan with the activities of other Federal
agencies in order to avoid duplication of effort. The plan shall be consistent with the
need for the development of new technologies
for meeting the goals of response actions in
accordance with the provisions of this chapter.
The Advisory Council shall be provided an opportunity to review and comment on the plan
and priorities and assist appropriate coordination among the relevant Federal agencies referred to in subparagraph (A) of paragraph (5).
(b) Alternative or innovative treatment technology research and demonstration program
(1) Establishment
The Administrator is authorized and directed to carry out a program of research,
evaluation, testing, development, and demonstration of alternative or innovative treatment technologies (hereinafter in this subsection referred to as the ‘‘program’’) which
may be utilized in response actions to achieve
more permanent protection of human health
and welfare and the environment.
(2) Administration
The program shall be administered by the
Administrator, acting through an office of
technology demonstration and shall be coordinated with programs carried out by the Office
of Solid Waste and Emergency Response and
the Office of Research and Development.

§ 9660

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(3) Contracts and grants
In carrying out the program, the Administrator is authorized to enter into contracts
and cooperative agreements with, and make
grants to, persons, public entities, and nonprofit private entities which are exempt from
tax under section 501(c)(3) of title 26. The Administrator shall, to the maximum extent possible, enter into appropriate cost sharing arrangements under this subsection.
(4) Use of sites
In carrying out the program, the Administrator may arrange for the use of sites at
which a response may be undertaken under
section 9604 of this title for the purposes of
carrying out research, testing, evaluation, development, and demonstration projects. Each
such project shall be carried out under such
terms and conditions as the Administrator
shall require to assure the protection of
human health and the environment and to assure adequate control by the Administrator of
the research, testing, evaluation, development, and demonstration activities at the
site.
(5) Demonstration assistance
(A) Program components
The demonstration assistance program
shall include the following:
(i) The publication of a solicitation and
the evaluation of applications for demonstration projects utilizing alternative or
innovative technologies.
(ii) The selection of sites which are suitable for the testing and evaluation of innovative technologies.
(iii) The development of detailed plans
for innovative technology demonstration
projects.
(iv) The supervision of such demonstration projects and the providing of quality
assurance for data obtained.
(v) The evaluation of the results of alternative innovative technology demonstration projects and the determination of
whether or not the technologies used are
effective and feasible.
(B) Solicitation
Within 90 days after October 17, 1986, and
no less often than once every 12 months
thereafter, the Administrator shall publish a
solicitation for innovative or alternative
technologies at a stage of development suitable for full-scale demonstrations at sites at
which a response action may be undertaken
under section 9604 of this title. The purpose
of any such project shall be to demonstrate
the use of an alternative or innovative treatment technology with respect to hazardous
substances or pollutants or contaminants
which are located at the site or which are to
be removed from the site. The solicitation
notice shall prescribe information to be included in the application, including technical and economic data derived from the
applicant’s own research and development
efforts, and other information sufficient to
permit the Administrator to assess the tech-

Page 6906

nology’s potential and the types of remedial
action to which it may be applicable.
(C) Applications
Any person and any public or private nonprofit entity may submit an application to
the Administrator in response to the solicitation. The application shall contain a proposed demonstration plan setting forth how
and when the project is to be carried out and
such other information as the Administrator
may require.
(D) Project selection
In selecting technologies to be demonstrated, the Administrator shall fully review the applications submitted and shall
consider at least the criteria specified in
paragraph (7). The Administrator shall select or refuse to select a project for demonstration under this subsection within 90
days of receiving the completed application
for such project. In the case of a refusal to
select the project, the Administrator shall
notify the applicant within such 90-day period of the reasons for his refusal.
(E) Site selection
The Administrator shall propose 10 sites at
which a response may be undertaken under
section 9604 of this title to be the location of
any demonstration project under this subsection within 60 days after the close of the
public comment period. After an opportunity for notice and public comment, the
Administrator shall select such sites and
projects. In selecting any such site, the Administrator shall take into account the applicant’s technical data and preferences either for onsite operation or for utilizing the
site as a source of hazardous substances or
pollutants or contaminants to be treated offsite.
(F) Demonstration plan
Within 60 days after the selection of the
site under this paragraph to be the location
of a demonstration project, the Administrator shall establish a final demonstration
plan for the project, based upon the demonstration plan contained in the application
for the project. Such plan shall clearly set
forth how and when the demonstration
project will be carried out.
(G) Supervision and testing
Each demonstration project under this
subsection shall be performed by the applicant, or by a person satisfactory to the applicant, under the supervision of the Administrator. The Administrator shall enter into
a written agreement with each applicant
granting the Administrator the responsibility and authority for testing procedures,
quality control, monitoring, and other measurements necessary to determine and evaluate the results of the demonstration project.
The Administrator may pay the costs of
testing, monitoring, quality control, and
other measurements required by the Administrator to determine and evaluate the results of the demonstration project, and the
limitations established by subparagraph (J)
shall not apply to such costs.

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

(H) Project completion
Each demonstration project under this
subsection shall be completed within such
time as is established in the demonstration
plan.
(I) Extensions
The Administrator may extend any deadline established under this paragraph by mutual agreement with the applicant concerned.
(J) Funding restrictions
The Administrator shall not provide any
Federal assistance for any part of a fullscale field demonstration project under this
subsection to any applicant unless such applicant can demonstrate that it cannot obtain appropriate private financing on reasonable terms and conditions sufficient to
carry out such demonstration project without such Federal assistance. The total Federal funds for any full-scale field demonstration project under this subsection shall not
exceed 50 percent of the total cost of such
project estimated at the time of the award
of such assistance. The Administrator shall
not expend more than $10,000,000 for assistance under the program in any fiscal year
and shall not expend more than $3,000,000 for
any single project.
(6) Field demonstrations
In carrying out the program, the Administrator shall initiate or cause to be initiated at
least 10 field demonstration projects of alternative or innovative treatment technologies
at sites at which a response may be undertaken under section 9604 of this title, in fiscal
year 1987 and each of the succeeding three fiscal years. If the Administrator determines
that 10 field demonstration projects under this
subsection cannot be initiated consistent with
the criteria set forth in paragraph (7) in any of
such fiscal years, the Administrator shall
transmit to the appropriate committees of
Congress a report explaining the reasons for
his inability to conduct such demonstration
projects.
(7) Criteria
In selecting technologies to be demonstrated
under this subsection, the Administrator
shall, consistent with the protection of human
health and the environment, consider each of
the following criteria:
(A) The potential for contributing to solutions to those waste problems which pose
the greatest threat to human health, which
cannot be adequately controlled under
present technologies, or which otherwise
pose significant management difficulties.
(B) The availability of technologies which
have been sufficiently developed for field
demonstration and which are likely to be
cost-effective and reliable.
(C) The availability and suitability of sites
for demonstrating such technologies, taking
into account the physical, biological, chemical, and geological characteristics of the
sites, the extent and type of contamination
found at the site, and the capability to con-

§ 9660

duct demonstration projects in such a manner as to assure the protection of human
health and the environment.
(D) The likelihood that the data to be generated from the demonstration project at
the site will be applicable to other sites.
(8) Technology transfer
In carrying out the program, the Administrator shall conduct a technology transfer program including the development, collection,
evaluation, coordination, and dissemination of
information relating to the utilization of alternative or innovative treatment technologies for response actions. The Administrator shall establish and maintain a central
reference library for such information. The information maintained by the Administrator
shall be made available to the public, subject
to the provisions of section 552 of title 5 and
section 1905 of title 18, and to other Government agencies in a manner that will facilitate
its dissemination; except, that upon a showing
satisfactory to the Administrator by any person that any information or portion thereof
obtained under this subsection by the Administrator directly or indirectly from such person, would, if made public, divulge—
(A) trade secrets; or
(B) other proprietary information of such
person,
the Administrator shall not disclose such information and disclosure thereof shall be punishable under section 1905 of title 18. This subsection is not authority to withhold information from Congress or any committee of Congress upon the request of the chairman of such
committee.
(9) Training
The Administrator is authorized and directed to carry out, through the Office of
Technology Demonstration, a program of
training and an evaluation of training needs
for each of the following:
(A) Training in the procedures for the handling and removal of hazardous substances
for employees who handle hazardous substances.
(B) Training in the management of facilities at which hazardous substances are located and in the evaluation of the hazards to
human health presented by such facilities
for State and local health and environment
agency personnel.
(10) Definition
For purposes of this subsection, the term
‘‘alternative or innovative treatment technologies’’ means those technologies, including
proprietary or patented methods, which permanently alter the composition of hazardous
waste through chemical, biological, or physical means so as to significantly reduce the
toxicity, mobility, or volume (or any combination thereof) of the hazardous waste or contaminated materials being treated. The term
also includes technologies that characterize or
assess the extent of contamination, the chemical and physical character of the contaminants, and the stresses imposed by the contaminants on complex ecosystems at sites.

§ 9660

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(c) Hazardous substance research
The Administrator may conduct and support,
through grants, cooperative agreements, and
contracts, research with respect to the detection, assessment, and evaluation of the effects
on and risks to human health of hazardous substances and detection of hazardous substances in
the environment. The Administrator shall coordinate such research with the Secretary of
Health and Human Services, acting through the
advisory council established under this section,
in order to avoid duplication of effort.
(d) University hazardous substance research
centers
(1) Grant program
The Administrator shall make grants to institutions of higher learning to establish and
operate not fewer than 5 hazardous substance
research centers in the United States. In carrying out the program under this subsection,
the Administrator should seek to have established and operated 10 hazardous substance research centers in the United States.
(2) Responsibilities of centers
The responsibilities of each hazardous substance research center established under this
subsection shall include, but not be limited to,
the conduct of research and training relating
to the manufacture, use, transportation, disposal, and management of hazardous substances and publication and dissemination of
the results of such research.
(3) Applications
Any institution of higher learning interested
in receiving a grant under this subsection
shall submit to the Administrator an application in such form and containing such information as the Administrator may require by
regulation.
(4) Selection criteria
The Administrator shall select recipients of
grants under this subsection on the basis of
the following criteria:
(A) The hazardous substance research center shall be located in a State which is representative of the needs of the region in
which such State is located for improved
hazardous waste management.
(B) The grant recipient shall be located in
an area which has experienced problems
with hazardous substance management.
(C) There is available to the grant recipient for carrying out this subsection demonstrated research resources.
(D) The capability of the grant recipient to
provide leadership in making national and
regional contributions to the solution of
both long-range and immediate hazardous
substance management problems.
(E) The grant recipient shall make a commitment to support ongoing hazardous substance research programs with budgeted institutional funds of at least $100,000 per year.
(F) The grant recipient shall have an
interdisciplinary staff with demonstrated
expertise in hazardous substance management and research.
(G) The grant recipient shall have a demonstrated ability to disseminate results of

Page 6908

hazardous substance research and educational programs through an interdisciplinary continuing education program.
(H) The projects which the grant recipient
proposes to carry out under the grant are
necessary and appropriate.
(5) Maintenance of effort
No grant may be made under this subsection
in any fiscal year unless the recipient of such
grant enters into such agreements with the
Administrator as the Administrator may require to ensure that such recipient will maintain its aggregate expenditures from all other
sources for establishing and operating a regional hazardous substance research center
and related research activities at or above the
average level of such expenditures in its 2 fiscal years preceding October 17, 1986.
(6) Federal share
The Federal share of a grant under this subsection shall not exceed 80 percent of the costs
of establishing and operating the regional hazardous substance research center and related
research activities carried out by the grant recipient.
(7) Limitation on use of funds
No funds made available to carry out this
subsection shall be used for acquisition of real
property (including buildings) or construction
of any building.
(8) Administration through the Office of the
Administrator
Administrative responsibility for carrying
out this subsection shall be in the Office of the
Administrator.
(9) Equitable distribution of funds
The Administrator shall allocate funds made
available to carry out this subsection equitably among the regions of the United States.
(10) Technology transfer activities
Not less than five percent of the funds made
available to carry out this subsection for any
fiscal year shall be available to carry out technology transfer activities.
(e) Report to Congress
At the time of the submission of the annual
budget request to Congress, the Administrator
shall submit to the appropriate committees of
the House of Representatives and the Senate and
to the advisory council established under subsection (a) of this section, a report on the
progress of the research, development, and demonstration program authorized by subsection (b)
of this section, including an evaluation of each
demonstration project completed in the preceding fiscal year, findings with respect to the efficacy of such demonstrated technologies in
achieving permanent and significant reductions
in risk from hazardous wastes, the costs of such
demonstration projects, and the potential applicability of, and projected costs for, such technologies at other hazardous substance sites.
(f) Saving provision
Nothing in this section shall be construed to
affect the provisions of the Solid Waste Disposal
Act [42 U.S.C. 6901 et seq.].

Page 6909

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(g) Small business participation
The Administrator shall ensure, to the maximum extent practicable, an adequate opportunity for small business participation in the
program established by subsection (b) of this
section.
(Pub. L. 96–510, title III, § 311, as added Pub. L.
99–499, title II, § 209(b), Oct. 17, 1986, 100 Stat.
1708; amended Pub. L. 99–514, § 2, Oct. 22, 1986, 100
Stat. 2095.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (a)(1)(B)(iii), (6),
was in the original ‘‘this Act’’, meaning Pub. L. 96–510,
Dec. 11, 1980, 94 Stat. 2767, known as the Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980, which is classified principally to this chapter. For complete classification of this Act to the Code,
see Short Title note set out under section 9601 of this
title and Tables.
The Public Health Service Act, referred to in subsec.
(a)(4), is act July 1, 1944, ch. 373, 58 Stat. 682. Title IV
of the Public Health Service Act is classified generally
to subchapter III (§ 281 et seq.) of chapter 6A of this
title. For complete classification of this Act to the
Code, see Short Title note set out under section 201 of
this title and Tables.
The Solid Waste Disposal Act, referred to in subsec.
(f), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997,
as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976,
90 Stat. 2795, which is classified generally to chapter 82
(§ 6901 et seq.) of this title. For complete classification
of this Act to the Code, see Short Title note set out
under section 6901 of this title and Tables.
AMENDMENTS
1986—Subsec. (b)(3). Pub. L. 99–514 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue Code
of 1954’’, which for purposes of codification was translated as ‘‘title 26’’ thus requiring no change in text.
METHAMPHETAMINE REMEDIATION RESEARCH
Pub. L. 110–143, Dec. 21, 2007, 121 Stat. 1809, provided
that:
‘‘SECTION 1. SHORT TITLE.
‘‘This Act may be cited as the ‘Methamphetamine Remediation Research Act of 2007’.
‘‘SEC. 2. FINDINGS.
‘‘The Congress finds the following:
‘‘(1) Methamphetamine use and production is growing rapidly throughout the United States.
‘‘(2) Materials and residues remaining from the production of methamphetamine pose novel environmental problems in locations where methamphetamine laboratories have been closed.
‘‘(3) There has been little standardization of measures for determining when the site of a closed methamphetamine laboratory has been successfully remediated.
‘‘(4) Initial cleanup actions are generally limited to
removal of hazardous substances and contaminated
materials that pose an immediate threat to public
health or the environment. It is not uncommon for
significant levels of contamination to be found
throughout residential structures after a methamphetamine laboratory has closed, partially because of a lack of knowledge of how to achieve an effective cleanup.
‘‘(5) Data on methamphetamine laboratory-related
contaminants of concern are very limited, and cleanup standards do not currently exist. In addition, procedures for sampling and analysis of contaminants
need to be researched and developed.
‘‘(6) Many States are struggling with establishing
remediation guidelines and programs to address the
rapidly expanding number of methamphetamine laboratories being closed each year.

§ 9660

‘‘SEC. 3. VOLUNTARY GUIDELINES.
‘‘(a) ESTABLISHMENT OF VOLUNTARY GUIDELINES.—Not
later than one year after the date of enactment of this
Act [Dec. 21, 2007], the Administrator of the Environmental Protection Agency (in this Act referred to as
the ‘Administrator’), in consultation with the National
Institute of Standards and Technology, shall establish
voluntary guidelines, based on the best currently available scientific knowledge, for the remediation of
former methamphetamine laboratories, including
guidelines regarding preliminary site assessment and
the remediation of residual contaminants.
‘‘(b) CONSIDERATIONS.—In developing the voluntary
guidelines under subsection (a), the Administrator
shall consider, at a minimum—
‘‘(1) relevant standards, guidelines, and requirements found in Federal, State, and local laws and
regulations;
‘‘(2) the varying types and locations of former
methamphetamine laboratories; and
‘‘(3) the expected cost of carrying out any proposed
guidelines.
‘‘(c) STATES.—The voluntary guidelines should be designed to assist State and local governments in the development and the implementation of legislation and
other policies to apply state-of-the-art knowledge and
research results to the remediation of former methamphetamine laboratories. The Administrator shall
work with State and local governments and other relevant non-Federal agencies and organizations, including through the conference described in section 5, to
promote and encourage the appropriate adoption of the
voluntary guidelines.
‘‘(d) UPDATING THE GUIDELINES.—The Administrator
shall periodically update the voluntary guidelines as
the Administrator, in consultation with States and
other interested parties, determines to be necessary
and appropriate to incorporate research findings and
other new knowledge.
‘‘SEC. 4. RESEARCH PROGRAM.
‘‘The Administrator shall establish a program of research to support the development and revision of the
voluntary guidelines described in section 3. Such research shall—
‘‘(1) identify methamphetamine laboratory-related
chemicals of concern;
‘‘(2) assess the types and levels of exposure to
chemicals of concern identified under paragraph (1),
including routine and accidental exposures, that may
present a significant risk of adverse biological effects, and the research necessary to better address biological effects and to minimize adverse human exposures;
‘‘(3) evaluate the performance of various methamphetamine laboratory cleanup and remediation
techniques; and
‘‘(4) support other research priorities identified by
the Administrator in consultation with States and
other interested parties.
‘‘SEC. 5. TECHNOLOGY TRANSFER CONFERENCE.
‘‘(a) CONFERENCE.—Not later than 90 days after the
date of enactment of this Act [Dec. 21, 2007], and at
least every third year thereafter, the Administrator
shall convene a conference of appropriate State agencies, as well as individuals or organizations involved in
research and other activities directly related to the environmental, or biological impacts of former methamphetamine laboratories. The conference should be a
forum for the Administrator to provide information on
the guidelines developed under section 3 and on the latest findings from the research program described in
section 4, and for the non-Federal participants to provide information on the problems and needs of States
and localities and their experience with guidelines developed under section 3.
‘‘(b) REPORT.—Not later than 3 months after each
conference, the Administrator shall submit a report to
the Congress that summarizes the proceedings of the

§ 9660

TITLE 42—THE PUBLIC HEALTH AND WELFARE

conference, including a summary of any recommendations or concerns raised by the non-Federal participants and how the Administrator intends to respond to
them. The report shall also be made widely available to
the general public.
‘‘SEC. 6. RESIDUAL EFFECTS STUDY.
‘‘(a) STUDY.—Not later than 6 months after the date
of enactment of this Act [Dec. 21, 2007], the Administrator shall enter into an arrangement with the National Academy of Sciences for a study of the status
and quality of research on the residual effects of methamphetamine laboratories. The study shall identify research gaps and recommend an agenda for the research
program described in section 4. The study shall pay
particular attention to the need for research on the impacts of methamphetamine laboratories on—
‘‘(1) the residents of buildings where such laboratories are, or were, located, with particular emphasis
given to biological impacts on children; and
‘‘(2) first responders.
‘‘(b) REPORT.—Not later than 3 months after the completion of the study, the Administrator shall transmit
to Congress a report on how the Administrator will use
the results of the study to carry out the activities described in sections 3 and 4.
‘‘SEC. 7. METHAMPHETAMINE DETECTION RESEARCH AND DEVELOPMENT PROGRAM.
‘‘The Director of National Institute of Standards and
Technology, in consultation with the Administrator,
shall support a research program to develop—
‘‘(1) new methamphetamine detection technologies,
with emphasis on field test kits and site detection;
and
‘‘(2) appropriate standard reference materials and
validation procedures for methamphetamine detection testing.
‘‘SEC. 8. SAVINGS CLAUSE.
‘‘Nothing in this Act shall be construed to affect or
limit the application of, or any obligation to comply
with, any State or Federal environmental law or regulation, including the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9601 et seq.) and the Solid Waste Disposal Act (42
U.S.C. 6901 et seq.).
‘‘SEC. 9. AUTHORIZATION OF APPROPRIATIONS.
‘‘(a) ENVIRONMENTAL PROTECTION AGENCY.—There are
authorized to be appropriated to the Environmental
Protection Agency to carry out this Act $1,750,000 for
each of the fiscal years 2007 and 2008.
‘‘(b) NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY.—There are authorized to be appropriated to
the National Institute of Standards and Technology to
carry out this Act $750,000 for each of the fiscal years
2007 and 2008.’’
GULF COAST HAZARDOUS SUBSTANCE RESEARCH,
DEVELOPMENT, AND DEMONSTRATION CENTER
Pub. L. 99–499, title I, § 118(l), Oct. 17, 1986, 100 Stat.
1660, provided that:
‘‘(1) ESTABLISHMENT OF HAZARDOUS SUBSTANCE RESEARCH, DEVELOPMENT, AND DEMONSTRATION CENTER.—
The Administrator shall establish a hazardous substance research, development, and demonstration center (hereinafter in this subsection referred to as the
‘Center’) for the purpose of conducting research to aid
in more effective hazardous substance response and
waste management throughout the Gulf Coast.
‘‘(2) PURPOSES OF THE CENTER.—The Center shall
carry out a program of research, evaluation, testing,
development, and demonstration of alternative or innovative technologies which may be utilized in response
actions or in normal handling of hazardous wastes to
achieve better protection of human health and the environment.
‘‘(3) OPERATION OF CENTER.—(A) For purposes of operating the Center, the Administrator is authorized to
enter into contracts and cooperative agreements with,

Page 6910

and make grants to, a university related institute involved with the improvement of waste management.
Such institute shall be located in Jefferson County,
Texas.
‘‘(B) The Center shall be authorized to make grants,
accept contributions, and enter into agreements with
universities located in the States of Texas, Louisiana,
Mississippi, Alabama, and Florida in order to carry out
the purposes of the Center.
‘‘(4) AUTHORIZATION OF APPROPRIATIONS.—There are
authorized to be appropriated to the Administrator for
purposes of carrying out this subsection for fiscal years
beginning after September 30, 1986, not more than
$5,000,000.’’
PACIFIC NORTHWEST HAZARDOUS SUBSTANCE RESEARCH,
DEVELOPMENT, AND DEMONSTRATION CENTER
Pub. L. 99–499, title I, § 118(o), Oct. 17, 1986, 100 Stat.
1661, provided that:
‘‘(1) ESTABLISHMENT.—The Administrator shall establish a hazardous substance research, development, and
demonstration center (hereinafter in this subsection
referred to as the ‘Center’) for the purpose of conducting research to aid in more effective hazardous substance response in the Pacific Northwest.
‘‘(2) PURPOSES OF CENTER.—The Center shall carry out
a program of research, evaluation, testing, development, and demonstration of alternative or innovative
technologies which may be utilized in response actions
to achieve more permanent protection of human health
and welfare and the environment.
‘‘(3) OPERATION OF CENTER.—
‘‘(A) NONPROFIT ENTITY.—For the purposes of operating the Center, the Administrator is authorized to
enter into contracts and cooperative agreements
with, and make grants to, a nonprofit private entity
as defined in section 201(i) of Public Law 96-517 [probably means section 201(i) of Title 35, Patents, which
was enacted by section 6(a) of Pub. L. 96–517, Dec. 12,
1980, 94 Stat. 3020] which entity shall agree to provide
the basic technical and management personnel. Such
nonprofit private entity shall also agree to provide at
least two permanent research facilities, one of which
shall be located in Benton County, Washington, and
one of which shall be located in Clallam County,
Washington.
‘‘(B) AUTHORITIES.—The Center shall be authorized
to make grants, accept contributions, and enter into
agreements with universities located in the States of
Washington, Oregon, Idaho, and Montana in order to
carry out the purposes of the Center.
‘‘(4) HAZARDOUS WASTE RESEARCH AT THE HANFORD
SITE.—
‘‘(A) INTERAGENCY AGREEMENTS.—The Administrator and the Secretary of Energy are authorized to
enter into interagency agreements with one another
for the purpose of providing for research, evaluation,
testing, development, and demonstration into alternative or innovative technologies to characterize and
assess the nature and extent of hazardous waste (including radioactive mixed waste) contamination at
the Hanford site, in the State of Washington.
‘‘(B) FUNDING.—There is authorized to be appropriated to the Secretary of Energy for purposes of
carrying out this paragraph for fiscal years beginning
after September 30, 1986, not more than $5,000,000. All
sums appropriated under this subparagraph shall be
provided to the Administrator by the Secretary of
Energy, pursuant to the interagency agreement entered into under subparagraph (A), for the purpose of
the Administrator entering into contracts and cooperative agreements with, and making grants to, the
Center in order to carry out the research, evaluation,
testing, development, and demonstration described in
paragraph (1).
‘‘(5) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated to the Administrator for
purposes of carrying out this subsection (other than
paragraph (4)) for fiscal years beginning after September 30, 1986, not more than $5,000,000.’’

Page 6911

TITLE 42—THE PUBLIC HEALTH AND WELFARE

CONGRESSIONAL STATEMENT OF PURPOSE
Pub. L. 99–499, title II, § 209(a), Oct. 17, 1986, 100 Stat.
1708, provided that: ‘‘The purposes of this section [enacting this section] are as follows:
‘‘(1) To establish a comprehensive and coordinated
Federal program of research, development, demonstration, and training for the purpose of promoting
the development of alternative and innovative treatment technologies that can be used in response actions under the CERCLA program, to provide incentives for the development and use of such technologies, and to improve the scientific capability to
assess, detect and evaluate the effects on and risks to
human health from hazardous substances.
‘‘(2) To establish a basic university research and
education program within the Department of Health
and Human Services and a research, demonstration,
and training program within the Environmental Protection Agency.
‘‘(3) To reserve certain funds from the Hazardous
Substance Trust Fund to support a basic research
program within the Department of Health and
Human Services, and an applied and developmental
research program within the Environmental Protection Agency.
‘‘(4) To enhance the Environmental Protection
Agency’s internal research capabilities related to
CERCLA activities, including site assessment and
technology evaluation.
‘‘(5) To provide incentives for the development of
alternative and innovative treatment technologies in
a manner that supplements or coordinates with, but
does not compete with or duplicate, private sector development of such technologies.’’
TERMINATION OF ADVISORY COUNCILS
Advisory councils established after Jan. 5, 1973, to
terminate not later than the expiration of the 2-year
period beginning on the date of their establishment,
unless, in the case of a council established by the President or an officer of the Federal Government, such
council is renewed by appropriate action prior to the
expiration of such 2-year period, or in the case of a
council established by the Congress, its duration is
otherwise provided by law. See sections 3(2) and 14 of
Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, 776, set out in
the Appendix to Title 5, Government Organization and
Employees.

§ 9660a. Grant program
(1) Grant purposes
Grants for the training and education of workers who are or may be engaged in activities related to hazardous waste removal or containment or emergency response may be made under
this section.
(2) Administration
Grants under this section shall be administered by the National Institute of Environmental Health Sciences.
(3) Grant recipients
Grants shall be awarded to nonprofit organizations which demonstrate experience in implementing and operating worker health and safety
training and education programs and demonstrate the ability to reach and involve in
training programs target populations of workers
who are or will be engaged in hazardous waste
removal or containment or emergency response
operations.
(Pub. L. 99–499, title I, § 126(g), Oct. 17, 1986, 100
Stat. 1692.)
CODIFICATION
Section was enacted as part of the Superfund Amendments and Reauthorization Act of 1986, and not as part

§ 9661

of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 which comprises
this chapter.

§ 9661. Love Canal property acquisition
(a) Acquisition of property in Emergency Declaration Area
The Administrator of the Environmental Protection Agency (hereinafter referred to as the
‘‘Administrator’’) may make grants not to exceed $2,500,000 to the State of New York (or to
any duly constituted public agency or authority
thereof) for purposes of acquisition of private
property in the Love Canal Emergency Declaration Area. Such acquisition shall include (but
shall not be limited to) all private property
within the Emergency Declaration Area, including non-owner occupied residential properties,
commercial, industrial, public, religious, nonprofit, and vacant properties.
(b) Procedures for acquisition
No property shall be acquired pursuant to this
section unless the property owner voluntarily
agrees to such acquisition. Compensation for
any property acquired pursuant to this section
shall be based upon the fair market value of the
property as it existed prior to the emergency
declaration. Valuation procedures for property
acquired with funds provided under this section
shall be in accordance with those set forth in
the agreement entered into between the New
York State Disaster Preparedness Commission
and the Love Canal Revitalization Agency on
October 9, 1980.
(c) State ownership
The Administrator shall not provide any funds
under this section for the acquisition of any
properties pursuant to this section unless a public agency or authority of the State of New York
first enters into a cooperative agreement with
the Administrator providing assurances deemed
adequate by the Administrator that the State or
an agency created under the laws of the State
shall take title to the properties to be so acquired.
(d) Maintenance of property
The Administrator shall enter into a cooperative agreement with an appropriate public agency or authority of the State of New York under
which the Administrator shall maintain or arrange for the maintenance of all properties
within the Emergency Declaration Area that
have been acquired by any public agency or authority of the State. Ninety (90) percent of the
costs of such maintenance shall be paid by the
Administrator. The remaining portion of such
costs shall be paid by the State (unless a credit
is available under section 9604(c) of this title).
The Administrator is authorized, in his discretion, to provide technical assistance to any public agency or authority of the State of New York
in order to implement the recommendations of
the habitability and land-use study in order to
put the land within the Emergency Declaration
Area to its best use.
(e) Habitability and land use study
The Administrator shall conduct or cause to
be conducted a habitability and land-use study.
The study shall—

§ 9662

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(1) assess the risks associated with inhabiting of the Love Canal Emergency Declaration
Area;
(2) compare the level of hazardous waste
contamination in that Area to that present in
other comparable communities; and
(3) assess the potential uses of the land within the Emergency Declaration Area, including
but not limited to residential, industrial, commercial and recreational, and the risks associated with such potential uses.
The Administrator shall publish the findings of
such study and shall work with the State of New
York to develop recommendations based upon
the results of such study.
(f) Funding
For purposes of section 9611 of this title [and
9631(c) 1 of this title], the expenditures authorized by this section shall be treated as a cost
specified in section 9611(c) of this title.
(g) Response
The provisions of this section shall not affect
the implementation of other response actions
within the Emergency Declaration Area that
the Administrator has determined (before October 17, 1986) to be necessary to protect the public
health or welfare or the environment.
(h) Definitions
For purposes of this section:
(1) Emergency Declaration Area
The terms ‘‘Emergency Declaration Area’’
and ‘‘Love Canal Emergency Declaration
Area’’ mean the Emergency Declaration Area
as defined in section 950, paragraph (2) of the
General Municipal Law of the State of New
York, Chapter 259, Laws of 1980, as in effect on
October 17, 1986.
(2) Private property
As used in subsection (a) of this section, the
term ‘‘private property’’ means all property
which is not owned by a department, agency,
or instrumentality of—
(A) the United States, or
(B) the State of New York (or any public
agency or authority thereof).
(Pub. L. 96–510, title III, § 312, as added Pub. L.
99–499, title II, § 213(b), Oct. 17, 1986, 100 Stat.
1727.)
REFERENCES IN TEXT
Section 9631 of this title, referred to in subsec. (f),
was repealed by Pub. L. 99–499, title V, § 517(c)(1), Oct.
17, 1986, 100 Stat. 1774.
LOVE CANAL PROPERTY ACQUISITION; CONGRESSIONAL
FINDINGS
Pub. L. 99–499, title II, § 213(a), Oct. 17, 1986, 100 Stat.
1726, provided that:
‘‘(1) The area known as Love Canal located in the city
of Niagara Falls and the town of Wheatfield, New York,
was the first toxic waste site to receive national attention. As a result of that attention Congress investigated the problems associated with toxic waste sites
and enacted CERCLA [Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42
U.S.C. 9601 et seq.)] to deal with these problems.
1 See

References in Text note below.

Page 6912

‘‘(2) Because Love Canal came to the Nation’s attention prior to the passage of CERCLA and because the
fund under CERCLA was not available to compensate
for all of the hardships endured by the citizens in the
area, Congress has determined that special provisions
are required. These provisions do not affect the lawfulness, implementation, or selection of any other response actions at Love Canal or at any other facilities.’’
COORDINATION OF TITLES I TO IV OF PUB. L. 99–499
Any provision of titles I to IV of Pub. L. 99–499, imposing any tax, premium, or fee; establishing any trust
fund; or authorizing expenditures from any trust fund,
to have no force or effect, see section 531 of Pub. L.
99–499, set out as a note under section 1 of Title 26, Internal Revenue Code.

§ 9662. Limitation on contract and borrowing authority
Any authority provided by this Act, including
any amendment made by this Act, to enter into
contracts to obligate the United States or to
incur indebtedness for the repayment of which
the United States is liable shall be effective only
to such extent or in such amounts as are provided in appropriation Acts.
(Pub. L. 99–499, § 3, Oct. 17, 1986, 100 Stat. 1614.)
REFERENCES IN TEXT
This Act, referred to in text, is Pub. L. 99–499, Oct. 17,
1986, 100 Stat. 1613, as amended, known as the Superfund Amendments and Reauthorization Act of 1986. For
complete classification of this Act to the Code, see
Short Title of 1986 Amendment note set out under section 9601 of this title and Tables.
CODIFICATION
Section was enacted as part of the Superfund Amendments and Reauthorization Act of 1986, and not as part
of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 which comprises
this chapter.

SUBCHAPTER IV—POLLUTION INSURANCE
§ 9671. Definitions
As used in this subchapter—
(1) Insurance
The term ‘‘insurance’’ means primary insurance, excess insurance, reinsurance, surplus
lines insurance, and any other arrangement
for shifting and distributing risk which is determined to be insurance under applicable
State or Federal law.
(2) Pollution liability
The term ‘‘pollution liability’’ means liability for injuries arising from the release of hazardous substances or pollutants or contaminants.
(3) Risk retention group
The term ‘‘risk retention group’’ means any
corporation or other limited liability association taxable as a corporation, or as an insurance company, formed under the laws of any
State—
(A) whose primary activity consists of assuming and spreading all, or any portion, of
the pollution liability of its group members;
(B) which is organized for the primary purpose of conducting the activity described
under subparagraph (A);

Page 6913

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(C) which is chartered or licensed as an insurance company and authorized to engage
in the business of insurance under the laws
of any State; and
(D) which does not exclude any person
from membership in the group solely to provide for members of such a group a competitive advantage over such a person.
(4) Purchasing group
The term ‘‘purchasing group’’ means any
group of persons which has as one of its purposes the purchase of pollution liability insurance on a group basis.
(5) State
The term ‘‘State’’ means any State of the
United States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Commonwealth of the Northern Marianas, and any
other territory or possession over which the
United States has jurisdiction.
(Pub. L. 96–510, title IV, § 401, as added Pub. L.
99–499, title II, § 210(a), formerly § 210, Oct. 17,
1986, 100 Stat. 1716; renumbered § 210(a), Pub. L.
99–563, § 11(c)(1), Oct. 27, 1986, 100 Stat. 3177.)
STATE POWERS AND AUTHORITIES UNDER RISK
RETENTION AMENDMENTS OF 1986
Pub. L. 99–499, title II, § 210(b), as added by Pub. L.
99–563, § 11(c)(1), Oct. 27, 1986, 100 Stat. 3177, provided
that: ‘‘For purposes of subsection (a) of this section
[enacting this subchapter], the powers and authorities
of States addressed by the Risk Retention Amendments
of 1986 [Pub. L. 99–563, see Short Title of 1986 Amendment note set out under section 3901 of Title 15, Commerce and Trade] are in addition to those of this Act
[see Short Title of 1986 Amendment note set out under
section 9601 of this title].’’

§ 9672. State laws; scope of subchapter
(a) State laws
Nothing in this subchapter shall be construed
to affect either the tort law or the law governing the interpretation of insurance contracts of
any State. The definitions of pollution liability
and pollution liability insurance under any
State law shall not be applied for the purposes
of this subchapter, including recognition or
qualification of risk retention groups or purchasing groups.
(b) Scope of subchapter
The authority to offer or to provide insurance
under this subchapter shall be limited to coverage of pollution liability risks and this subchapter does not authorize a risk retention
group or purchasing group to provide coverage
of any other line of insurance.
(Pub. L. 96–510, title IV, § 402, as added Pub. L.
99–499, title II, § 210(a), formerly § 210, Oct. 17,
1986, 100 Stat. 1716; renumbered § 210(a), Pub. L.
99–563, § 11(c)(1), Oct. 27, 1986, 100 Stat. 3177.)
§ 9673. Risk retention groups
(a) Exemption
Except as provided in this section, a risk retention group shall be exempt from the following:
(1) A State law, rule, or order which makes
unlawful, or regulates, directly or indirectly,
the operation of a risk retention group.

§ 9673

(2) A State law, rule, or order which requires
or permits a risk retention group to participate in any insurance insolvency guaranty association to which an insurer licensed in the
State is required to belong.
(3) A State law, rule, or order which requires
any insurance policy issued to a risk retention
group or any member of the group to be
countersigned by an insurance agent or broker
residing in the State.
(4) A State law, rule, or order which otherwise discriminates against a risk retention
group or any of its members.
(b) Exceptions
(1) State laws generally applicable
Nothing in subsection (a) of this section
shall be construed to affect the applicability
of State laws generally applicable to persons
or corporations. The State in which a risk retention group is chartered may regulate the
formation and operation of the group.
(2) State regulations not subject to exemption
Subsection (a) of this section shall not apply
to any State law which requires a risk retention group to do any of the following:
(A) Comply with the unfair claim settlement practices law of the State.
(B) Pay, on a nondiscriminatory basis, applicable premium and other taxes which are
levied on admitted insurers and surplus line
insurers, brokers, or policyholders under the
laws of the State.
(C) Participate, on a nondiscriminatory
basis, in any mechanism established or authorized under the law of the State for the
equitable apportionment among insurers of
pollution liability insurance losses and expenses incurred on policies written through
such mechanism.
(D) Submit to the appropriate authority
reports and other information required of licensed insurers under the laws of a State relating solely to pollution liability insurance
losses and expenses.
(E) Register with and designate the State
insurance commissioner as its agent solely
for the purpose of receiving service of legal
documents or process.
(F) Furnish, upon request, such commissioner a copy of any financial report submitted by the risk retention group to the commissioner of the chartering or licensing jurisdiction.
(G) Submit to an examination by the State
insurance commissioner in any State in
which the group is doing business to determine the group’s financial condition, if—
(i) the commissioner has reason to believe the risk retention group is in a financially impaired condition; and
(ii) the commissioner of the jurisdiction
in which the group is chartered has not
begun or has refused to initiate an examination of the group.
(H) Comply with a lawful order issued in a
delinquency proceeding commenced by the
State insurance commissioner if the commissioner of the jurisdiction in which the
group is chartered has failed to initiate such

§ 9674

TITLE 42—THE PUBLIC HEALTH AND WELFARE

a proceeding after notice of a finding of financial impairment under subparagraph (G).
(c) Application of exemptions
The exemptions specified in subsection (a) of
this section apply to—
(1) pollution liability insurance coverage
provided by a risk retention group for—
(A) such group; or
(B) any person who is a member of such
group;

Page 6914

(b) Application of exemptions
The exemptions specified in subsection (a) of
this section apply to the following:
(1) Pollution liability insurance, and comprehensive general liability insurance which
includes this coverage, provided to—
(A) a purchasing group; or
(B) any person who is a member of a purchasing group.

(2) the sale of pollution liability insurance
coverage for a risk retention group; and
(3) the provision of insurance related services or management services for a risk retention group or any member of such a group.
(d) Agents or brokers
A State may require that a person acting, or
offering to act, as an agent or broker for a risk
retention group obtain a license from that
State, except that a State may not impose any
qualification or requirement which discriminates against a nonresident agent or broker.

(2) The sale of any one of the following to a
purchasing group or a member of the group:
(A) Pollution liability insurance and comprehensive general liability coverage.
(B) Insurance related services.
(C) Management services.
(c) Agents or brokers
A State may require that a person acting, or
offering to act, as an agent or broker for a purchasing group obtain a license from that State,
except that a State may not impose any qualification or requirement which discriminates
against a nonresident agent or broker.

(Pub. L. 96–510, title IV, § 403, as added Pub. L.
99–499, title II, § 210(a), formerly § 210, Oct. 17,
1986, 100 Stat. 1717; renumbered § 210(a), Pub. L.
99–563, § 11(c)(1), Oct. 27, 1986, 100 Stat. 3177.)

(Pub. L. 96–510, title IV, § 404, as added Pub. L.
99–499, title II, § 210(a), formerly § 210, Oct. 17,
1986, 100 Stat. 1718; renumbered § 210(a), Pub. L.
99–563, § 11(c)(1), Oct. 27, 1986, 100 Stat. 3177.)

§ 9674. Purchasing groups

§ 9675. Applicability of securities laws

(a) Exemption
Except as provided in this section, a purchasing group is exempt from the following:
(1) A State law, rule, or order which prohibits the establishment of a purchasing
group.
(2) A State law, rule, or order which makes
it unlawful for an insurer to provide or offer to
provide insurance on a basis providing, to a
purchasing group or its member, advantages,
based on their loss and expense experience, not
afforded to other persons with respect to rates,
policy forms, coverages, or other matters.
(3) A State law, rule, or order which prohibits a purchasing group or its members from
purchasing insurance on the group basis described in paragraph (2) of this subsection.
(4) A State law, rule, or order which prohibits a purchasing group from obtaining insurance on a group basis because the group has
not been in existence for a minimum period of
time or because any member has not belonged
to the group for a minimum period of time.
(5) A State law, rule, or order which requires
that a purchasing group must have a minimum number of members, common ownership
or affiliation, or a certain legal form.
(6) A State law, rule, or order which requires
that a certain percentage of a purchasing
group must obtain insurance on a group basis.
(7) A State law, rule, or order which requires
that any insurance policy issued to a purchasing group or any members of the group be
countersigned by an insurance agent or broker
residing in that State.
(8) A State law, rule, or order which otherwise discriminate 1 against a purchasing group
or any of its members.

(a) Ownership interests
The ownership interests of members of a risk
retention group shall be considered to be—
(1) exempted securities for purposes of section 77e of title 15 and for purposes of section
78l of title 15; and
(2) securities for purposes of the provisions
of section 77q of title 15 and the provisions of
section 78j of title 15.
(b) Investment Company Act
A risk retention group shall not be considered
to be an investment company for purposes of the
Investment Company Act of 1940 (15 U.S.C. 80a–1
et seq.).
(c) Blue sky law
The ownership interests of members in a risk
retention group shall not be considered securities for purposes of any State blue sky law.

1 So

in original. Probably should be ‘‘discriminates’’.

(Pub. L. 96–510, title IV, § 405, as added Pub. L.
99–499, title II, § 210(a), formerly § 210, Oct. 17,
1986, 100 Stat. 1719; renumbered § 210(a), Pub. L.
99–563, § 11(c)(1), Oct. 27, 1986, 100 Stat. 3177.)
REFERENCES IN TEXT
The Investment Company Act of 1940, referred to in
subsec. (b), is title I of act Aug. 22, 1940, ch. 686, 54 Stat.
789, as amended, which is classified generally to subchapter I (§ 80a–1 et seq.) of chapter 2D of Title 15, Commerce and Trade. For complete classification of this
Act to the Code, see section 80a–51 of Title 15 and
Tables.

CHAPTER
104—NUCLEAR
SAFETY
RESEARCH,
DEVELOPMENT,
AND
DEMONSTRATION
Sec.

9701.
9702.

Congressional findings and declaration of policy.
Definitions.

Page 545

§ 1801

TITLE 43—PUBLIC LANDS

(C) Additions to the Outstanding Natural
Area
Any land or interest in land adjacent to
the Outstanding Natural Area acquired by
the United States after May 8, 2008, under
subparagraph (A) shall be added to, and administered as part of, the Outstanding Natural Area.
(6) Law enforcement activities
Nothing in this section, the management
plan, or the Jupiter Inlet Coordinated Resource Management Plan (including any updates or amendments to the Jupiter Inlet
Coordinated Resource Management Plan) precludes, prohibits, or otherwise affects—
(A) any maritime security, maritime safety, or environmental protection mission or
activity of the Coast Guard;
(B) any border security operation or law
enforcement activity by the Department of
Homeland Security or the Department of
Justice; or
(C) any law enforcement activity of any
Federal, State, or local law enforcement
agency in the Outstanding Natural Area.
(7) Future disposition of Coast Guard facilities
If the Commandant determines, after May 8,
2008, that Coast Guard facilities within the
Outstanding Natural Area exceed the needs of
the Coast Guard, the Commandant may relinquish the facilities to the Secretary without
removal, subject only to any environmental
remediation that may be required by law.
(e) Effect on ongoing and future Coast Guard operations
Nothing in this section, the management plan,
or the Jupiter Inlet Coordinated Resource Management Plan (including updates or amendments to the Jupiter Inlet Coordinated Resource
Management Plan) precludes, prohibits, or
otherwise affects ongoing or future Coast Guard
operations or activities in the Outstanding Natural Area, including—
(1) the continued and future operation of, access to, maintenance of, and, as may be necessitated for Coast Guard missions, the expansion, enhancement, or replacement of, the
Coast Guard High Frequency antenna site on
lot 16;
(2) the continued and future operation of, access to, maintenance of, and, as may be necessitated for Coast Guard missions, the expansion, enhancement, or replacement of, the
military family housing area on lot 18;
(3) the continued and future use of, access
to, maintenance of, and, as may be necessitated for Coast Guard missions, the expansion, enhancement, or replacement of, the pier
on lot 18;
(4) the existing lease of the Jupiter Inlet
Lighthouse on lot 18 from the Coast Guard to
the Loxahatchee River Historical Society; or
(5) any easements or other less-than-fee interests in property appurtenant to existing
Coast Guard facilities on lots 16 and 18.
(f) Authorization of appropriations
There are authorized to be appropriated such
sums as are necessary to carry out this section.

(Pub. L. 110–229, title II, § 202, May 8, 2008, 122
Stat. 763.)
REFERENCES IN TEXT
The Executive Order dated October 22, 1854, and Executive Order No. 4254 (June 12, 1925), referred to in subsec. (b)(4)(B)(i), (ii), were not classified to the Code.
The Federal Land Policy and Management Act of
1976, referred to in subsec. (d)(1)(A)(iii), is Pub. L.
94–579, Oct. 21, 1976, 90 Stat. 2743, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 1701 of this title and Tables.
CODIFICATION
Section was enacted as part of the Consolidated Natural Resources Act of 2008, and not as part of the Federal Land Policy and Management Act of 1976 which
comprises this chapter.

CHAPTER 36—OUTER CONTINENTAL SHELF
RESOURCE MANAGEMENT
Sec.

1801.
1802.

Congressional findings.
Congressional declaration of purposes.
SUBCHAPTER I—OFFSHORE OIL SPILL
POLLUTION FUND

1811 to 1824. Repealed.
SUBCHAPTER II—FISHERMEN’S CONTINGENCY
FUND
1841.
Definitions.
1842.
Fishermen’s Contingency Fund.
1843.
Duties and powers of Secretary.
1844.
Burden of proof.
1845.
Claims procedure.
1846, 1847. Repealed.
SUBCHAPTER III—MISCELLANEOUS PROVISIONS
1861.
1862.
1863.
1864.

1865.
1866.

Repealed.
Natural gas distribution.
Unlawful employment practices; regulations.
Disclosure of financial interests by officers
and employees of Department of the Interior.
Investigation of reserves of oil and gas in
Outer Continental Shelf.
Relationship to existing law.

§ 1801. Congressional findings
The Congress finds and declares that—
(1) the demand for energy in the United
States is increasing and will continue to increase for the foreseeable future;
(2) domestic production of oil and gas has declined in recent years;
(3) the United States has become increasingly dependent upon imports of oil from foreign nations to meet domestic energy demand;
(4) increasing reliance on imported oil is not
inevitable, but is rather subject to significant
reduction by increasing the development of
domestic sources of energy supply;
(5) consumption of natural gas in the United
States has greatly exceeded additions to domestic reserves in recent years;
(6) technology is or can be made available
which will allow significantly increased domestic production of oil and gas without
undue harm or damage to the environment;
(7) the Outer Continental Shelf contains significant quantities of oil and natural gas and
is a vital national resource reserve which
must be carefully managed so as to realize fair

§ 1802

TITLE 43—PUBLIC LANDS

value, to preserve and maintain competition,
and to reflect the public interest;
(8) there presently exists a variety of technological, economic, environmental, administrative, and legal problems which tend to retard the development of the oil and natural
gas reserves of the Outer Continental Shelf;
(9) environmental and safety regulations relating to activities on the Outer Continental
Shelf should be reviewed in light of current
technology and information;
(10) the development, processing, and distribution of the oil and gas resources of the
Outer Continental Shelf, and the siting of related energy facilities, may cause adverse impacts on various States and local governments;
(11) policies, plans, and programs developed
by States and local governments in response
to activities on the Outer Continental Shelf
cannot anticipate and ameliorate such adverse
impacts unless such States, working in close
cooperation with affected local governments,
are provided with timely access to information regarding activities on the Outer Continental Shelf and an opportunity to review
and comment on decisions relating to such activities;
(12) funds must be made available to pay for
the prompt removal of any oil spilled or discharged as a result of activities on the Outer
Continental Shelf and for any damages to public or private interests caused by such spills or
discharges;
(13) because of the possible conflicts between
exploitation of the oil and gas resources in the
Outer Continental Shelf and other uses of the
marine environment, including fish and shellfish growth and recovery, and recreational activity, the Federal Government must assume
responsibility for the minimization or elimination of any conflict associated with such exploitation;
(14) the oil and gas resources of the Outer
Continental Shelf are limited, nonrenewable
resources which must be developed in a manner which takes into consideration the Nation’s long-range energy needs and also assures adequate protection of the renewable resources of the Outer Continental Shelf which
are a continuing and increasingly important
source of food and protein to the Nation and
the world; and
(15) funds must be made available to pay for
damage to commercial fishing vessels and gear
resulting from activities involving oil and gas
exploration, development, and production on
the Outer Continental Shelf.
(Pub. L. 95–372, title I, § 101, Sept. 18, 1978, 92
Stat. 630.)
SHORT TITLE OF 1988 AMENDMENT
Pub. L. 100–610, title I, § 1, Nov. 5, 1988, 102 Stat. 3176,
provided that: ‘‘This Act [probably should be ‘This
title’, which amended section 1815 of this title] may be
cited as the ‘Outer Continental Shelf Operations Indemnification Clarification Act of 1988’.’’
SHORT TITLE
Pub. L. 95–372, § 1, Sept. 18, 1978, 92 Stat. 629, provided:
‘‘That this Act [enacting this chapter, sections 1344 to

Page 546

1356 of this title, and section 237 of Title 30, Mineral
Lands and Mining, amending sections 1331 to 1334, 1337,
1340, and 1343 of this title, sections 1456, 1456a, and 1464
of Title 16, Conservation, and section 6213 of Title 42,
The Public Health and Welfare, and enacting provisions
set out as notes under sections 1348 and 1811 of this
title] may be cited as the ‘Outer Continental Shelf
Lands Act Amendments of 1978’.’’

§ 1802. Congressional declaration of purposes
The purposes of this chapter are to—
(1) establish policies and procedures for managing the oil and natural gas resources of the
Outer Continental Shelf which are intended to
result in expedited exploration and development of the Outer Continental Shelf in order
to achieve national economic and energy policy goals, assure national security, reduce dependence on foreign sources, and maintain a
favorable balance of payments in world trade;
(2) preserve, protect, and develop oil and
natural gas resources in the Outer Continental
Shelf in a manner which is consistent with the
need (A) to make such resources available to
meet the Nation’s energy needs as rapidly as
possible, (B) to balance orderly energy resource development with protection of the
human, marine, and coastal environments, (C)
to insure the public a fair and equitable return
on the resources of the Outer Continental
Shelf, and (D) to preserve and maintain free
enterprise competition;
(3) encourage development of new and improved technology for energy resource production which will eliminate or minimize risk of
damage to the human, marine, and coastal environments;
(4) provide States, and through States, local
governments, which are impacted by Outer
Continental Shelf oil and gas exploration, development, and production with comprehensive assistance in order to anticipate and plan
for such impact, and thereby to assure adequate protection of the human environment;
(5) assure that States, and through States,
local governments, have timely access to information regarding activities on the Outer
Continental Shelf, and opportunity to review
and comment on decisions relating to such activities, in order to anticipate, ameliorate,
and plan for the impacts of such activities;
(6) assure that States, and through States,
local governments, which are directly affected
by exploration, development, and production
of oil and natural gas are provided an opportunity to participate in policy and planning
decisions relating to management of the resources of the Outer Continental Shelf;
(7) minimize or eliminate conflicts between
the exploration, development, and production
of oil and natural gas, and the recovery of
other resources such as fish and shellfish;
(8) establish an oilspill liability fund to pay
for the prompt removal of any oil spilled or
discharged as a result of activities on the
Outer Continental Shelf and for any damages
to public or private interests caused by such
spills or discharges;
(9) insure that the extent of oil and natural
gas resources of the Outer Continental Shelf is
assessed at the earliest practicable time; and
(10) establish a fishermen’s contingency fund
to pay for damages to commercial fishing ves-

Page 547

§ 1841

TITLE 43—PUBLIC LANDS

sels and gear due to Outer Continental Shelf
activities.
(Pub. L. 95–372, title I, § 102, Sept. 18, 1978, 92
Stat. 631.)
REFERENCES IN TEXT
This chapter, referred to in opening provision, was in
the original ‘‘this Act’’, meaning Pub. L. 95–372, Sept.
18, 1978, 92 Stat. 629, known as the Outer Continental
Shelf Lands Act Amendments of 1978, which enacted
this chapter, sections 1344 to 1356 of this title, and section 237 of Title 30, Mineral Lands and Mining, amended
sections 1331 to 1334, 1337, 1340, and 1343 of this title,
sections 1456, 1456a, and 1464 of Title 16, Conservation,
and section 6213 of Title 42, The Public Health and Welfare, and enacted provisions set out as notes under sections 1348 and 1811 of this title. For complete classification of this Act to the Code, see Short Title note set
out under section 1801 of this title and Tables.

SUBCHAPTER I—OFFSHORE OIL SPILL
POLLUTION FUND
§§ 1811 to 1824. Repealed. Pub. L. 101–380, title II,
§ 2004, Aug. 18, 1990, 104 Stat. 507
Section 1811, Pub. L. 95–372, title III, § 301, Sept. 18,
1978, 92 Stat. 670, defined terms used in this subchapter.
Section 1812, Pub. L. 95–372, title III, § 302, Sept. 18,
1978, 92 Stat. 672; Pub. L. 101–239, title IX, § 9001(a), Dec.
19, 1989, 103 Stat. 2470, established Offshore Oil Pollution Compensation Fund.
Section 1813, Pub. L. 95–372, title III, § 303, Sept. 18,
1978, 92 Stat. 674, provided for asserting claims for economic loss from oil pollution.
Section 1814, Pub. L. 95–372, title III, § 304, Sept. 18,
1978, 92 Stat. 675, set scope of liability of owners and operators of vessels and offshore facilities.
Section 1815, Pub. L. 95–372, title III, § 305, Sept. 18,
1978, 92 Stat. 677; Pub. L. 100–610, title I, §§ 2, 3, Nov. 5,
1988, 102 Stat. 3176, required owners and operators of
offshore facilities and vessels using offshore facilities
to provide evidence of financial responsibility to cover
liability for oil pollution.
Section 1816, Pub. L. 95–372, title III, § 306, Sept. 18,
1978, 92 Stat. 678, provided for notification, designation,
and advertisement of incidents involving vessels or offshore facilities.
Section 1817, Pub. L. 95–372, title III, § 307, Sept. 18,
1978, 92 Stat. 679, related to presentment of claims to
owners, operators, guarantors, or Offshore Oil Pollution Compensation Fund.
Section 1818, Pub. L. 95–372, title III, § 308, Sept. 18,
1978, 92 Stat. 682, provided for subrogation of any person
or governmental entity which paid compensation for an
economic loss to all rights, claims, and causes of action
which claimant had under this subchapter.
Section 1819, Pub. L. 95–372, title III, § 309, Sept. 18,
1978, 92 Stat. 683, provided for jurisdiction and venue of
controversies arising under this subchapter.
Section 1820, Pub. L. 95–372, title III, § 310, Sept. 18,
1978, 92 Stat. 684, outlined relationship of this subchapter to other State or Federal laws.
Section 1821, Pub. L. 95–372, title III, § 311, Sept. 18,
1978, 92 Stat. 684, prohibited harmful discharge of oil
from any offshore facility or vessel.
Section 1822, Pub. L. 95–372, title III, § 312, Sept. 18,
1978, 92 Stat. 684, set civil and criminal penalties for
violations of provisions of this subchapter.
Section 1823, Pub. L. 95–372, title III, § 313, Sept. 18,
1978, 92 Stat. 685, authorized appropriations for administration of this subchapter.
Section 1824, Pub. L. 95–372, title III, § 314, Sept. 18,
1978, 92 Stat. 685, directed Secretary of Transportation
to submit report annually to Congress on operation of
this subchapter.
EFFECTIVE DATE OF REPEAL
Repeal applicable to incidents occurring after Aug.
18, 1990, see section 1020 of Pub. L. 101–380, set out as an

Effective Date note under section 2701 of Title 33, Navigation and Navigable Waters.
EFFECTIVE DATE
Pub. L. 95–372, title III, § 315, Sept. 18, 1978, 92 Stat.
685, which provided that such section, section 1814(e) of
this title, section 1815(d) of this title, and all provisions
of this subchapter authorizing the delegation of authority or the promulgation of regulations were to be effective Sept. 18, 1978, and that all other provisions of this
subchapter, and rules and regulations promulgated pursuant to such provisions, were to be effective on the
one hundred and eightieth day after Sept. 18, 1978, was
repealed by Pub. L. 101–380, title II, § 2004, Aug. 18, 1990,
104 Stat. 507.
OFFSHORE OIL POLLUTION COMPENSATION FUND
Amounts remaining in the Offshore Oil Pollution
Compensation Fund established under former section
1812 of this title to be deposited in the Oil Spill Liability Trust Fund established under section 9509 of Title
26, Internal Revenue Code, with that Fund to assume
all liability incurred by the Offshore Oil Pollution
Compensation Fund, see section 2004 of Pub. L. 101–380,
set out as a note under section 9509 of Title 26.

SUBCHAPTER II—FISHERMEN’S
CONTINGENCY FUND
§ 1841. Definitions
As used in this subchapter, the term—
(1) ‘‘area affected by Outer Continental Shelf
activities’’ means any geographic area:
(A) which is under oil or gas lease on the
Outer Continental Shelf;
(B) where Outer Continental Shelf exploration, development or production activities
have been permitted, except geophysical activities;
(C) where pipeline rights-of-way have been
granted; or
(D) otherwise impacted by such activities
including but not limited to expired lease
areas, relinquished rights-of-way and easements, Outer Continental Shelf supply vessel routes, or other areas as determined by
the Secretary;
(2) ‘‘citizen of the United States’’ means any
person who is a United States citizen by law,
birth, or naturalization, any State, any agency of a State, or a group of States, or any corporation, partnership, or association organized
under the laws of any State which has as its
president or other chief executive officer and
as its chairman of the board of directors, or
holder of a similar office, a person who is a
United States citizen by law, birth, or naturalization, and which has at least 75 per centum of the interest of 1 therein owned by citizens of the United States. Seventy-five per
centum of the interest in the corporation shall
not be deemed to be owned by citizens of the
United States—
(A) if the title to 75 per centum of its stock
is not vested in such citizens free from any
trust or fiduciary obligation in favor of any
person not a citizen of the United States;
(B) if 75 per centum of the voting power in
such corporation is not vested in citizens of
the United States;
(C) if through any contract or understanding it is so arranged that more than 25 per
1 So

in original. The ‘‘of’’ is probably unnecessary.

§ 1842

TITLE 43—PUBLIC LANDS

centum of the voting power may be exercised, directly or indirectly, in behalf of any
person who is not a citizen of the United
States; or
(D) if by any other means whatsoever control of any interest in the corporation in excess of 25 per centum is conferred upon or
permitted to be exercised by any person who
is not a citizen of the United States;
(3) ‘‘commercial fisherman’’ means any citizen of the United States who owns, operates,
or derives income from being employed on a
commercial fishing vessel;
(4) ‘‘commercial fishing vessel’’ means any
vessel, boat, ship, or other craft which is (A)
documented under the laws of the United
States or, if under five net tons, registered
under the laws of any State, and (B) used for,
equipped to be used for, or of a type which is
normally used for commercial purposes for the
catching, taking, or harvesting of fish or the
aiding or assisting of any activity related to
the catching, taking, or harvesting of fish, including, but not limited to, preparation, supply, storage, refrigeration, transportation, or
processing;
(5) ‘‘fish’’ means finfish, mollusks, crustaceans, and all other forms of marine animal
and plant life other than marine mammals,
birds, and highly migratory species;
(6) ‘‘fishing gear’’ means (A) any commercial
fishing vessel, and (B) any equipment of such
vessel, whether or not attached to such a vessel;
(7) ‘‘Fund’’ means the Fishermen’s Contingency Fund established under section 1842 of
this title; and
(8) ‘‘Secretary’’ means the Secretary of Commerce or the designee of such Secretary.
(Pub. L. 95–372, title IV, § 401, Sept. 18, 1978, 92
Stat. 685; Pub. L. 97–212, §§ 1, 8, June 30, 1982, 96
Stat. 143, 147.)
AMENDMENTS
1982—Pub. L. 97–212 added par. (1), redesignated
former pars. (1) to (7) as (2) to (8), respectively, and
struck out ‘‘at sea’’ after ‘‘the aiding or assisting’’ in
par. (4)(B) as redesignated.
EFFECTIVE DATE OF 1982 AMENDMENT
Pub. L. 97–212, § 9, June 30, 1982, 96 Stat. 147, provided
that:
‘‘(a) Except as provided for in subsection (b), the
amendments made by this Act [amending this section
and sections 1842 to 1845 of this title, repealing section
1847 of this title, enacting a provision set out as a note
under section 1823 of Title 16, Conservation, and amending a provision set out as a note under section 1823 of
Title 16] shall apply with respect to claims for damages
that are filed, on or after the date of the enactment of
this Act [June 30, 1982], with the Secretary of Commerce under section 405(a) of the Outer Continental
Shelf Lands Act Amendments of 1978 [section 1845(a) of
this title].
‘‘(b)(1) Any commercial fisherman who filed a claim
with the Secretary of Commerce for compensation
under title IV of such amendments of 1978 [this subchapter] before the date of the enactment of this Act
[June 30, 1982] may, if no decision on such claim was
rendered under section 405(d) of such title IV [section
1845(d) of this title] before such date of enactment
[June 30, 1982], refile such claim with the Secretary if
the claimant notifies the Secretary in writing within

Page 548

thirty days after notification under paragraph (2) of his
eligibility to refile the claim that he intends to so
refile. If timely notification of intent to refile is made
under the preceding sentence, any action pending with
respect to the original claim shall be suspended pending the refiling of the claim under paragraph (2) and, if
such refiling is timely made, such action shall be vacated.
‘‘(2) The Secretary shall notify each claimant eligible
to refile a claim under paragraph (1) of such eligibility
within 10 days after the date of enactment of this Act
[June 30, 1982].
‘‘(3) A claim for which notification on intent to refile
was timely made under paragraph (1) must be refiled
with the Secretary within the thirty-day period after
the date on which the regulations promulgated to implement the amendments made by this Act become
final or action shall be resumed with respect to such
claim without regard to the amendments made by this
Act.
‘‘(4) The amendments made by this Act shall apply
with respect to any claim that is refiled on a timely
basis under paragraph (3).’’

§ 1842. Fishermen’s Contingency Fund
(a) Establishment; availability; source of deposits; limitation on amount; interest-bearing
accounts; litigation
(1) There is established in the Treasury of the
United States a Fishermen’s Contingency Fund.
The Fund shall be available to the Secretary
without fiscal year limitations as a revolving
fund for the purpose of making payments pursuant to this section. The Fund shall consist of—
(A) revenues received from investments
made under paragraph (3);
(B) amounts collected under subsection (b)
of this section; and
(C) amounts recovered by the Secretary
under section 1845(h)(2) of this title.
The total amount in the Fund that is collected
under subsection (b) of this section may at no
time exceed $2,000,000; and the total amount in
the Fund which is attributable to revenue received under paragraph (3) or recovered by the
Secretary under section 1845(h)(2) of this title
shall be expended prior to amounts collected
under subsection (b) of this section. Not more
than 8 percent of the total amount in the Fund
may be expended in any fiscal year for paying
the administrative and personnel expenses referred to in paragraph (2)(A).
(2) The Fund shall be available, as provided for
in appropriation Acts solely for the payment
of—
(A) the personnel and administrative expenses incurred in carrying out this subchapter;
(B) any claim, in accordance with procedures
established under this section, for damages
that are compensable under this subchapter;
and
(C) attorney and other fees awarded under
section 1845(e) of this title with respect to any
such claim.
(3) Sums in the Fund that are not currently
needed for the purposes of the Fund shall be
kept on deposit in appropriate interest-bearing
accounts that shall be established by the Secretary of the Treasury or invested in obligations
of, or guaranteed by, the United States. Any
revenue accruing from such deposits and investments shall be deposited into the Fund.

Page 549

TITLE 43—PUBLIC LANDS

(4) The Fund may sue and be sued in its own
name. All litigation by or against the Fund
shall be referred to the Attorney General.
(b) Payments by each holder of lease, permit,
easement, or right-of-way
(1) Except as provided in paragraph (2), each
holder of a lease that is issued or maintained
under the Outer Continental Shelf Lands Act [43
U.S.C. 1331 et seq.] and each holder of an exploration permit, or an easement or right-of-way
for the construction of a pipeline in any area of
the Outer Continental Shelf, shall pay an
amount specified by the Secretary. The Secretary of the Interior shall collect such amount
and deposit it into the Fund. In any calendar
year, no holder of a lease, permit, easement, or
right-of-way shall be required to pay an amount
in excess of $5,000 per lease, permit, easement, or
right-of-way.
(2) Payments may not be required under paragraph (1) by the Secretary of the Interior with
respect to geological permits and geophysical
permits, other than prelease exploratory drilling
permits issued under section 11 of the Outer
Continental Shelf Lands Act (43 U.S.C. 1340).
(Pub. L. 95–372, title IV, § 402, Sept. 18, 1978, 92
Stat. 686; Pub. L. 97–212, § 2, June 30, 1982, 96
Stat. 143.)
REFERENCES IN TEXT
The Outer Continental Shelf Lands Act, referred to in
subsec. (b)(1), is act Aug. 7, 1953, ch. 345, 67 Stat. 462, as
amended, which is classified generally to subchapter III
(§ 1331 et seq.) of chapter 29 of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 1331 of this title and Tables.
AMENDMENTS
1982—Subsec. (a). Pub. L. 97–212 redesignated subsec.
(a) as subsec. (a)(1) and substituted provisions relating
to the source of funds, that the total amount of the
Fund would not exceed $2,000,000, that the total amount
in the Fund which is attributable to revenue received
under par. (3) as amended or recovered by the Secretary
under section 1845(h)(2) of this title be expended prior
to amounts collected under subsec. (b) as amended, and
that not more than 8 percent of the total amount in the
Fund be expended in any fiscal year for the paying of
administrative and personnel expenses, for provisions
that the amounts paid pursuant to former subsecs. (c)
and (d) of this section be deposited in the Fund, and
that the total amount in the Fund not exceed $1,000,000,
redesignated as subsec. (a)(2) former subsec. (e), and
struck out provision that the amounts disbursed for administrative or personnel expenses not exceed 15 percent of the amounts deposited in a revolving account
for that fiscal year, added as subsec. (a)(3) provisions
that the sums of the Fund be kept on deposit in interest-bearing accounts, and added as subsec. (a)(4) provision that all litigation be referred to the Attorney General.
Subsec. (b). Pub. L. 97–212 redesignated as subsec.
(b)(1) provisions of former subsec. (c) and added as subsec. (b)(2) provision that payments not be required
under par. (1) by the Secretary of the Interior with respect to geological and geophysical permits other than
prelease exploratory drilling permits issued under section 1340 of this title. Former subsec. (b) relating to the
establishment and maintenance of an area account
within the Fund was struck out.
Subsec. (c). Pub. L. 97–212 redesignated subsec. (c) as
(b)(1).
Subsec. (d). Pub. L. 97–212 struck out subsec. (d)
which related to level of area account funds.
Subsec. (e). Pub. L. 97–212 redesignated subsec. (e) as
(a)(2).

§ 1843

EFFECTIVE DATE OF 1982 AMENDMENT
Amendment by Pub. L. 97–212 applicable with respect
to claims for damages filed on or after June 30, 1982,
with the Secretary of Commerce under section 1845(a)
of this title, with provision for the refiling of previously filed claims under certain circumstances, see
section 9 of Pub. L. 97–212, set out as a note under section 1841 of this title.

§ 1843. Duties and powers of Secretary
(a) Prescription and amendment of regulations
respecting settlement of claims; identification classification of potential hazards to
commercial fishing
In carrying out the provisions of this subchapter, the Secretary shall—
(1) prescribe, and from time to time amend,
regulations for the filing, processing, and fair
and expeditious settlement of claims pursuant
to this subchapter, including a time limitation
of not less than 90 days on the filing of such
claims (except that, notwithstanding any
other provision of law, final regulations implementing the 1981 amendments to this subchapter shall be published in the Federal Register within 120 days after the date of the enactment of such amendments); and
(2) identify and classify all potential hazards
to commercial fishing caused by Outer Continental Shelf oil and gas exploration, development, and production activities, including all
obstructions on the bottom, throughout the
water column, and on the surface.
(b) Establishment of regulations respecting color
coding, stamping, or labeling of equipment,
tools, etc., used on Outer Continental Shelf
The Secretary of the Interior shall establish
regulations requiring all materials, equipment,
tools, containers, and all other items used on
the Outer Continental Shelf to be properly color
coded, stamped, or labeled, wherever practicable, with the owner’s identification prior to
actual use.
(c) Disbursement of payments to compensate
commercial fishermen; restrictions
(1) Payments shall be disbursed by the Secretary from the Fund to compensate commercial
fishermen for actual and consequential damages,
including resulting economic loss, due to damages to, or loss of, fishing gear by materials,
equipment, tools, containers, or other items associated with Outer Continental Shelf oil and
gas exploration, development, or production activities. The compensation payable under this
section for resulting economic loss shall be an
amount equal to 50 per centum of such loss. For
purposes of this subsection, the term ‘‘resulting
economic loss’’ means the gross income, as estimated by the Secretary, that a commercial fisherman who is eligible for compensation under
this section will lose by reason of not being able
to engage in fishing, or having to reduce his
fishing effort, during the period before the damaged or lost fishing gear concerned is repaired or
replaced and available for use.
(2) Notwithstanding the provisions of paragraph (1) of this subsection, no payment may be
made by the Secretary from the Fund—
(A) to the extent that damages were caused
by the negligence or fault of the commercial
fisherman making the claim;

§ 1844

TITLE 43—PUBLIC LANDS

(B) if the damage set forth in the claim was
sustained prior to September 18, 1978;
(C) in the case of a claim for damage to, or
loss of, fishing gear, in an amount in excess of
the replacement value of the fishing gear with
respect to which the claim is filed; and
(D) for any portion of the damages claimed
with respect to which the claimant has received, or will receive, compensation from insurance.
(Pub. L. 95–372, title IV, § 403, Sept. 18, 1978, 92
Stat. 687; Pub. L. 96–561, title II, § 240(b)(2), Dec.
22, 1980, 94 Stat. 3301; Pub. L. 97–212, §§ 3, 7, June
30, 1982, 96 Stat. 144, 147; Pub. L. 98–498, title IV,
§ 420(1), (2), Oct. 19, 1984, 98 Stat. 2309.)
REFERENCES IN TEXT
The 1981 amendments to this subchapter, referred to
in subsec. (a)(1), probably means the amendments made
to this subchapter in 1982 by Pub. L. 97–212, which
amended sections 1841 to 1845 of this title, repealed section 1847 of this title, and enacted a provision set out
as a note under section 1841 of this title. Pub. L. 97–212
also enacted a provision set out as a note under section
1823 of Title 16, Conservation, and amended a provision
set out as a note under section 1823 of Title 16.
The date of enactment of such amendments, referred
to in subsec. (a)(1), probably means the date of enactment of Pub. L. 97–212, which was approved June 30,
1962.
AMENDMENTS
1984—Subsec. (a)(1). Pub. L. 98–498 substituted ‘‘limitation of not less than 90 days on’’ for ‘‘limitation on’’.
Subsec. (c)(1). Pub. L. 98–498 substituted ‘‘50 percent’’
for ‘‘25 per centum’’.
1982—Subsec. (a)(1). Pub. L. 97–212, § 7, substituted
‘‘claims (except that, notwithstanding any other provision of law, final regulations implementing the 1981
amendments to this subchapter shall be published in
the Federal Register within 120 days after the date of
the enactment of such amendments); and’’ for ‘‘claims;
and’’.
Subsec. (c)(1). Pub. L. 97–212, § 3(1), substituted
‘‘Fund’’ for ‘‘appropriate area account’’ and ‘‘resulting
economic loss’’ for ‘‘loss of profits’’, inserted ‘‘Outer
Continental Shelf’’ after ‘‘items associated with’’,
struck out ‘‘in such area, whether or not such damage
occurred in such area’’ after ‘‘production activities’’,
and inserted provisions that compensation payable
under this section for resulting economic loss be an
amount equal to 25 per centum of such loss and provision defining ‘‘resulting economic loss’’ for purposes of
subsec. (c).
Subsec. (c)(2). Pub. L. 97–212, § 3(2), substituted ‘‘the
Fund’’ for ‘‘any area account established under this
subchapter’’ in provisions preceding subpar. (A), struck
out subpars. (A) and (E) which related, respectively, to
damage caused by materials, equipment, tools, containers, or other items attributable to a financially responsible party and the party admitted responsibility and
to loss of profits for any period in excess of 6 months
unless such claim was supported by records with respect to the claimant’s profits during the previous 12month period, redesignated subpars. (B), (C), and (D) as
(A), (B), and (C) respectively, redesignated subpar. (F)
as (D), and in subpar. (D) as so redesignated, substituted ‘‘received, or will receive,’’ for ‘‘or will receive’’.
1980—Subsec. (c)(2)(A). Pub. L. 96–561 inserted reference to party admitting responsibility.
EFFECTIVE DATE OF 1982 AMENDMENT
Amendment by Pub. L. 97–212 applicable with respect
to claims for damages filed on or after June 30, 1982,
with the Secretary of Commerce under section 1845(a)
of this title, with provision for the refiling of pre-

Page 550

viously filed claims under certain circumstances, see
section 9 of Pub. L. 97–212, set out as a note under section 1841 of this title.

§ 1844. Burden of proof
With respect to any claim for damages filed
under this subchapter, there shall be a presumption that such damages were due to activities
related to oil and gas exploration, development,
or production if the claimant establishes that—
(1) the commercial fishing vessel was being
used for fishing and was located in an area affected by Outer Continental Shelf activities;
(2) a report on the location of the material,
equipment, tool, container, or other item
which caused such damages and the nature of
such damages was made within fifteen days
after the date on which the vessel first returns
to a port after discovering such damages;
(3) there was no record on the latest nautical
charts or Notice to Mariners in effect at least
15 days prior to the date such damages were
sustained that such material, equipment, tool,
container, or other item existed where such
damages occurred, except that in the case of
damages caused by a pipeline, the presumption
established by this section shall obtain whether or not there was any such record of the
pipeline on the damage date; and
(4) there was no proper surface marker or
lighted buoy which was attached or closely anchored to such material, equipment, tool, container, or other item.
(Pub. L. 95–372, title IV, § 404, Sept. 18, 1978, 92
Stat. 688; Pub. L. 97–212, § 4, June 30, 1982, 96
Stat. 145.)
AMENDMENTS
1982—Pub. L. 97–212, § 4(1), substituted ‘‘under this
subchapter’’ for ‘‘pursuant to this subchapter’’ and
‘‘damages were due to activities related to oil and gas
exploration, development, or production’’ for ‘‘claim is
valid’’ in provisions preceding par. (1).
Par. (2). Pub. L. 97–212, § 4(2), substituted ‘‘fifteen
days after the date on which the vessel first returns to
a port after discovering such damages’’ for ‘‘five days
after the date on which such damages were discovered’’.
Par. (3). Pub. L. 97–212, § 4(3), inserted ‘‘the latest’’
after ‘‘no record on’’, struck out ‘‘the’’ before ‘‘Notice
to Mariners’’, and substituted ‘‘in effect at least 15 days
prior to the date’’ for ‘‘on the date’’ and ‘‘where such
damages occurred, except that in the case of damages
caused by a pipeline, the presumption established by
this section shall obtain whether or not there was any
such record of the pipeline on the damage date’’ for ‘‘in
such area’’.
EFFECTIVE DATE OF 1982 AMENDMENT
Amendment by Pub. L. 97–212 applicable with respect
to claims for damages filed on or after June 30, 1982,
with the Secretary of Commerce under section 1845(a)
of this title, with provision for the refiling of previously filed claims under certain circumstances, see
section 9 of Pub. L. 97–212, set out as a note under section 1841 of this title.

§ 1845. Claims procedure
(a) Filing requirement; time to file
Any commercial fisherman suffering damages
compensable under this subchapter may file a
claim for compensation with the Secretary
under subsection (d)(1) of this section.

Page 551

TITLE 43—PUBLIC LANDS

(b) Transmittal of copy of claim to Secretary of
the Interior; reference to Secretary
Upon receipt of any claim under this section,
the Secretary shall transmit a copy of the claim
to the Secretary of the Interior and shall take
such further action regarding the claim that is
required under subsection (d) of this section.
(c) Notification to persons engaged in activities
associated with Outer Continental Shelf energy activities; response of persons notified;
submittal of evidence
The Secretary of the Interior shall make reasonable efforts to notify all persons known to
have engaged in activities associated with Outer
Continental Shelf energy activity in the vicinity. Each such person shall promptly notify the
Secretary and the Secretary of the Interior as to
whether he admits or denies responsibility for
the damages claimed. Any such person, including lessees or permittees or their contractors or
subcontractors, may submit evidence at any
proceeding conducted with respect to such
claim.
(d) Acceptance of claim by Secretary; time to
render decision; review of initial determination
(1) The Secretary shall, under regulations prescribed pursuant to section 1843(a) of this title,
specify the time, form and manner in which
claims must be filed.
(2) The Secretary may not accept any claim
that does not meet the filing requirements specified under paragraph (1), and shall give a claimant whose claim is not accepted written notice
of the reasons for nonacceptance. Such written
notice must be given to the claimant within 30
days after the date on which the claim was filed
and if the claimant does not refile an acceptable
claim within 30 days after the date of such written notice, the claimant is not eligible for compensation under this subchapter for the damages
concerned; except that the Secretary—
(A) shall in any case involving a good faith
effort by the claimant to meet such filing requirements, or
(B) may in any case involving extenuating
circumstances, accept a claim that does not
meet the 30-day refiling requirement.
(3)(A) The Secretary shall make an initial determination with respect to the claim within 60
days after the day on which the claim is accepted for filing. Within 30 days after the day on
which the Secretary issues an initial determination on a claim, the claimant, or any other interested person who submitted evidence relating
to the initial determination, may petition the
Secretary for a review of that determination.
(B) If a petition for the review of an initial determination is not filed with the Secretary
within the 30-day period provided under subparagraph (A), the initial determination shall thereafter be treated as a final determination by the
Secretary on the claim involved.
(C) If a petition for review of an initial determination is timely filed under subparagraph (A),
the Secretary shall allow the petitioner 30 days
after the day on which the petition is received
to submit written or oral evidence relating to
the initial determination. The Secretary shall

§ 1845

then undertake such review and, on the basis of
such review, issue a final determination no later
than the 60th day after the day on which the
Secretary received the petition for review of an
initial determination.
(e) Claim preparation fees; attorney’s fees
If the decision of the Secretary under subsection (d) of this section is in favor of the commercial fisherman filing the claim, the Secretary, as a part of the amount awarded, shall
include reasonable claim preparation fees and
reasonable attorney’s fees, if any, incurred by
the claimant in pursuing the claim.
(f) Powers of Secretary
(1) For purposes of any proceeding conducted
pursuant to this section, the Secretary shall
have the power to administer oaths and subpena
the attendance or testimony of witnesses and
the production of books, records, and other evidence relative or pertinent to the issues being
presented for determination.
(2) In any proceeding conducted pursuant to
this section with respect to a claim for damages
resulting from activities on any area of the
Outer Continental Shelf, the Secretary shall
consider evidence of obstructions in such area
which have been identified pursuant to the survey conducted under section 1847 1 of this title.
(g) Place of proceeding
Any proceeding conducted with respect to an
initial determination on a claim under subsection (d)(3)(A) of this section shall be conducted within such United States judicial district as may be mutually agreeable to the claimant and the Secretary or, if no agreement can be
reached, within the United States judicial district in which the home port of the claimant is
located.
(h) Certification and disbursement of award;
subrogation of rights; payment of costs of
proceedings
(1) The amount awarded in an initial determination by the Secretary under subsection (d)
of this section shall be immediately disbursed,
subject to the limitations of this section, by the
Secretary if the claimant—
(A) states in writing that he will not petition for review of the initial determination;
and
(B) enters into an agreement with the Secretary to repay to the Secretary all or any
part of the amount of the award if, after review under subsection (d)(3)(C) of this section
or, if applicable, after judicial review, the
amount of the award, or any part thereof, is
not sustained.
(2) Upon payment of a claim by the Secretary
pursuant to this subsection, the Secretary shall
acquire by subrogation all rights of the claimant against any person found to be responsible
for the damages with respect to which such
claim was made. Any moneys recovered by the
Secretary through subrogation shall be deposited into the Fund.
(3) Any person who denies responsibility for
damages with respect to which a claim is made
1 See

References in Text note below.

§ 1846

TITLE 43—PUBLIC LANDS

and who is subquently 2 found to be responsible
for such damages, and any commercial fisherman who files a claim for damages and who is
subsequently found to be responsible for such
damages, shall pay the costs of the proceedings
under this section with respect to such claim.
(i) Judicial review
Any claimant or other person who suffers a
legal wrong or who is adversely affected or aggrieved by a final determination of the Secretary under subsection (d) of this section, may,
no later than 30 days after such determination is
made, seek judicial review of the determination
in the United States district court for such
United States judicial district as may be mutually agreeable to the parties concerned or, if no
agreement can be reached, in the United States
district court for the United States judicial district in which is located the home port of the
claimant.
(Pub. L. 95–372, title IV, § 405, Sept. 18, 1978, 92
Stat. 688; Pub. L. 97–212, § 5, June 30, 1982, 96
Stat. 145; Pub. L. 98–498, title IV, § 420(3), (4), Oct.
19, 1984, 98 Stat. 2309, 2310.)
REFERENCES IN TEXT
Section 1847 of this title, referred to in subsec. (f)(2),
was repealed by Pub. L. 97–212, § 6(a), June 30, 1982, 96
Stat. 147.
AMENDMENTS
1984—Subsec. (a). Pub. L. 98–498 substituted ‘‘under
subsection (d)(1) of this section’’ for ‘‘, except that no
such claim may be filed more than 60 days after the
date of discovery of the damages with respect to which
such claim is made’’.
Subsec. (d)(1). Pub. L. 98–498 inserted ‘‘time,’’ before
‘‘form’’.
1982—Subsec. (b). Pub. L. 97–212, § 5(1), struck out
pars. (1) and (2) designations, and substituted ‘‘shall
take such further action regarding the claim that is required under subsection (d) of this section’’ for ‘‘refer
such matter to a hearing examiner appointed under
section 3105 of title 5’’.
Subsec. (c). Pub. L. 97–212, § 5(2), substituted ‘‘proceeding’’ for ‘‘hearing’’.
Subsec. (d). Pub. L. 97–212, § 5(3), substituted provisions relating to the filing of claims with the Secretary
of the Interior in order to be eligible for compensation
under this subchapter, the time for such filing, the
time in which the Secretary must make his initial determination with respect to the claim, and the submission of evidence by the petitioner when reviewing an
initial determination by the Secretary, for provisions
relating to the time in which a hearing examiner has to
render a decision.
Subsec. (e). Pub. L. 97–212, § 5(4), substituted provisions that if the decision of the Secretary is in favor of
the commercial fisherman filing the claim, the Secretary shall award to such claimant reasonable attorney’s fees and claim preparation fees incurred by
claimant in pursuing such claim for provisions that
upon a decision in favor of the claimant fisherman, the
hearing examiner include in the award reasonable attorney’s fees incurred by the claimant in pursuing such
claim.
Subsec. (f). Pub. L. 97–212, § 5(5), substituted ‘‘the Secretary’’ for ‘‘hearing examiner’’ and ‘‘proceeding’’ for
‘‘hearing’’ wherever appearing. The amendment which
directed the substitution of ‘‘the Secretary’’ for ‘‘hearing examiner’’ was executed by substituting ‘‘the Secretary’’ for ‘‘the hearing examiner’’, as the probable intent of Congress, to avoid repeating the article ‘‘the’’
before ‘‘Secretary’’ in two places.
2 So

in original. Probably should be ‘‘subsequently’’.

Page 552

Subsec. (g). Pub. L. 97–212, § 5(6), substituted ‘‘Any
proceeding conducted with respect to an initial determination on a claim under subsection (d)(3)(A) of this
section shall be conducted within such United States
judicial district as may be mutually agreeable to the
claimant and the Secretary or, if no agreement can be
reached, within the United States judicial district in
which the home port of the claimant is located’’ for ‘‘A
hearing conducted under this section shall be conducted within the United States judicial district within
which the matter giving rise to the claim occurred, or,
if such matter occurred within two or more districts, in
any of the affected districts, or, if such matter occurred
outside of any district, in the nearest district’’.
Subsec. (h)(1). Pub. L. 97–212, § 5(7)(A), substituted
provisions that the amount awarded in an initial determination by the Secretary under subsec. (d) be immediately disbursed by the Secretary if the claimant
states in writing that he will not petition for review of
the initial determination and he enters into an agreement with the Secretary to repay to the Secretary all
or any part of the award that is not sustained upon
later judicial review for provisions that upon a decision
of the hearing examiner and in absence of judicial review, any amount to be paid would be certified to the
Secretary who would promptly disburse the award and
that such decision of the hearing examiner was not reviewable by the Secretary.
Subsec. (h)(2). Pub. L. 97–212, § 5(7)(B), inserted provision that any moneys recovered by the Secretary
through subrogation shall be deposited into the Fund.
Subsec. (i). Pub. L. 97–212, § 5(8), substituted ‘‘Any
claimant or other person who suffers a legal wrong or
who is adversely affected or aggrieved by a final determination of the Secretary under subsection (d) of this
section, may, no later than 30 days after such determination is made, seek judicial review of the determination in the United States district court for such
United States judicial district as may be mutually
agreeable to the parties concerned or, if no agreement
can be reached, in the United States district court for
the United States judicial district in which is located
the home port of the claimant’’ for ‘‘Any person who
suffers legal wrong or who is adversely affected or aggrieved by the decision of a hearing examiner under
this section may, no later than 60 days after such decision is made, seek judicial review of such decision in
the United States court of appeals for the circuit in
which the damage occurred, or if such damage occurred
outside of any circuit, in the United States court of appeals for the nearest circuit’’.
EFFECTIVE DATE OF 1982 AMENDMENT
Amendment by Pub. L. 97–212 applicable with respect
to claims for damages filed on or after June 30, 1982,
with the Secretary of Commerce under section 1845(a)
of this title, with provision for the refiling of previously filed claims under certain circumstances, see
section 9 of Pub. L. 97–212, set out as a note under section 1841 of this title.
COMPENSATION FOR CERTAIN FISHING VESSEL AND GEAR
DAMAGE; APPLICATION
Authority to owners or operators of fishing vessels
and commercial fishermen failing to make application
for compensation within the time limitations of this
section or section 1980 of Title 22, Foreign Relations
and Intercourse, to make application for compensation
within the 60-day period beginning on Dec. 22, 1980, see
section 240(a), (b)(1) of Pub. L. 96–561, title II, Dec. 22,
1980, 94 Stat. 3300, set out as a note under section 1980
of Title 22.

§ 1846. Repealed. Pub. L. 104–66, title I, § 1021(f),
Dec. 21, 1995, 109 Stat. 713
Section, Pub. L. 95–372, title IV, § 406, Sept. 18, 1978, 92
Stat. 689, directed Secretary to submit annual reports
to Congress setting forth Fishermen’s Contingency

Page 553

Fund damage descriptions and compensation amounts
and, in first annual report, to evaluate feasibility of (1)
fine or penalty impositions, or (2) bonding requirements.

§ 1847. Repealed. Pub. L. 97–212, § 6(a), June 30,
1982, 96 Stat. 147
Section, Pub. L. 95–372, title IV, § 407, Sept. 18, 1978, 92
Stat. 690, related to survey of obstructions on Outer
Continental Shelf and development of charts for commercial fishermen.
EFFECTIVE DATE OF REPEAL
Repeal effective June 30, 1982, and applicable with respect to claims for damages filed on or after such date,
with the Secretary of Commerce under section 1845(a)
of this title, see section 9(a) of Pub. L. 97–212, set out
as an Effective Date of 1982 Amendment note under section 1841.

SUBCHAPTER III—MISCELLANEOUS
PROVISIONS
§ 1861. Repealed. Pub. L. 99–367, § 2(b), July 31,
1986, 100 Stat. 774
Section, Pub. L. 95–372, title VI, § 601, Sept. 18, 1978, 92
Stat. 693, required Secretary of the Interior, within six
months of Sept. 18, 1978, and in his annual report thereafter, to report to Comptroller General on shut-in and
flaring oil and gas wells and required Comptroller General, within six months after receipt of report, to review and evaluate methodology used by Secretary in
allowing wells to be shut-in or flare natural gas and
submit his findings and recommendations to Congress.

§ 1862. Natural gas distribution
(a) Expanded participation by local distribution
companies in acquisition of leases and development of natural gas resources
The purpose of this section is to encourage expanded participation by local distribution companies in acquisition of leases and development
of natural gas resources on the Outer Continental Shelf by facilitating the transportation in
interstate commerce of natural gas, which is
produced from a lease located on the Outer Continental Shelf and owned, in whole or in part, by
a local distribution company, from such lease to
the service area of such local distribution company.
(b) Application and issuance of certificates of
public convenience and necessity for transportation of natural gas
The Federal Energy Regulatory Commission
shall, after opportunity for presentation of written and oral views, promulgate and publish in
the Federal Register a statement of Commission
policy which carries out the purpose of this section and sets forth the standards under which
the Commission will consider applications for,
and, as appropriate, issue certificates of public
convenience and necessity, pursuant to section
717f of title 15, for the transportation in interstate commerce of natural gas, which is produced from a lease located on the Outer Continental Shelf and owned, in whole or in part, by
a local distribution company, from such lease to
the service area of such local distribution company. Such statement of policy shall specify the
criteria, limitations, or requirements the Commission will apply in determing— 1
1 So

§ 1863

TITLE 43—PUBLIC LANDS

in original. Probably should be ‘‘determining—’’.

(1) whether the application of any local distribution company qualifies for consideration
under the statement of policy; and
(2) whether the public convenience and necessity will be served by the issuance of the
requested certificate of transportation.
Such statement of policy shall also set forth the
terms or limitations on which the Commission
may condition, pursuant to section 717f of title
15, the issuance of a certificate of transportation
under such statement of policy. To the maximum extent practicable, such statement shall
be promulgated and published within one year
after September 18, 1978.
(c) Definitions
For purposes of this section, the term—
(1) ‘‘local distribution company’’ means any
person—
(A) engaged in the distribution of natural
gas at retail, including any subsidiary or affiliate thereof engaged in the exploration
and production of natural gas; and
(B) regulated, or operated as a public utility, by a State or local government or agency thereof;
(2) ‘‘interstate commerce’’ shall have the
same meaning as such term has under section
717a(7) of title 15; and
(3) ‘‘Commission’’ means the Federal Energy
Regulatory Commission.
(Pub. L. 95–372, title VI, § 603, Sept. 18, 1978, 92
Stat. 694.)
§ 1863. Unlawful employment practices; regulations
Each agency or department given responsibility for the promulgation or enforcement of regulations under this chapter or the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.]
shall take such affirmative action as deemed
necessary to prohibit all unlawful employment
practices and to assure that no person shall, on
the grounds of race, creed, color, national origin, or sex, be excluded from receiving or participating in any activity, sale, or employment,
conducted pursuant to the provisions of this
chapter or the Outer Continental Shelf Lands
Act. The agency or department shall promulgate
such rules as it deems necessary to carry out the
purposes of this section, and any rules promulgated under this section, whether through agency and department provisions or rules, shall be
similar to those established and in effect under
title VI and title VII of the Civil Rights Act of
1964 [42 U.S.C. 2000d et seq., 2000e et seq.].
(Pub. L. 95–372, title VI, § 604, Sept. 18, 1978, 92
Stat. 695.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 95–372, Sept. 18, 1978, 92
Stat. 629, as amended, known as the Outer Continental
Shelf Lands Act Amendments of 1978, which enacted
this chapter, sections 1344 to 1356 of this title, and section 237 of Title 30, Mineral Lands and Mining, amended
sections 1331 to 1334, 1337, 1340, and 1343 of this title,
sections 1456, 1456a, and 1464 of Title 16, Conservation,
and section 6213 of Title 42, The Public Health and Welfare, and enacted provisions set out as notes under sec-

§ 1864

TITLE 43—PUBLIC LANDS

tions 1348 and 1811 of this title. For complete classification of this Act to the Code, see Short Title note set
out under section 1801 of this title and Tables.
The Outer Continental Shelf Lands Act, referred to in
text, is act Aug. 7, 1953, ch. 345, 67 Stat. 462, as amended, which is classified generally to subchapter III (§ 1331
et seq.) of chapter 29 of this title. For complete classification of this Act to the Code, see Short Title note
set out under section 1331 of this title and Tables.
The Civil Rights Act of 1964, referred to in text, is
Pub. L. 88–352, July 2, 1964, 78 Stat. 241, as amended.
Title VI and VII of the Civil Rights Act of 1964 are classified generally to subchapters V (§ 2000d et seq.) and VI
(§ 2000e et seq.) of chapter 21 of Title 42, The Public
Health and Welfare. For complete classification of this
Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables.

§ 1864. Disclosure of financial interests by officers and employees of Department of the Interior
(a) Annual written statement
Each officer or employee of the Department of
the Interior who—
(1) performs any function or duty under this
chapter or the Outer Continental Shelf Lands
Act [43 U.S.C. 1331 et seq.], as amended by this
Act; and
(2) has any known financial interest in any
person who (A) applies for or receives any permit or lease under, or (B) is otherwise subject
to the provisions of this chapter or the Outer
Continental Shelf Lands Act [43 U.S.C. 1331 et
seq.],
shall, beginning on February 1, 1979, annually
file with the Secretary of the Interior a written
statement concerning all such interests held by
such officer or employee during the preceeding 1
calendar year. Such statement shall be available
to the public.
(b) ‘‘Known financial interest’’ defined; enforcement; report to Congress
The Secretary of the Interior shall—
(1) within ninety days after September 18,
1978—
(A) define the term ‘‘known financial interest’’ for purposes of subsection (a) of this
section; and
(B) establish the methods by which the requirement to file written statements specified in subsection (a) of this section will be
monitored and enforced, including appropriate provisions for the filing by such officers and employees of such statements and
the review by the Secretary of such statements; and
(2) report to the Congress on June 1 of each
calendar year with respect to such disclosures
and the actions taken in regard thereto during
the preceding calendar year.
(c) Officers and employees in nonregulatory or
nonpolicymaking positions
In the rules prescribed in subsection (b) of this
section, the Secretary may identify specific positions within the Department of the Interior
which are of a nonregulatory or nonpolicymaking nature and provide that officers or employees occupying such positions shall be exempt from the requirements of this section.
1 So

in original. Probably should be ‘‘preceding’’.

Page 554

(d) Penalties
Any officer or employee who is subject to, and
knowingly violates, this section shall be fined
not more than $2,500 or imprisoned not more
than one year, or both.
(Pub. L. 95–372, title VI, § 605, Sept. 18, 1978, 92
Stat. 695.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (a)(1), (2), was in
the original ‘‘this Act’’, meaning Pub. L. 95–372, Sept.
18, 1978, 92 Stat. 629, as amended, known as the Outer
Continental Shelf Lands Act Amendments of 1978,
which enacted this chapter, sections 1344 to 1356 of this
title, and section 237 of Title 30, Mineral Lands and
Mining, amended sections 1331 to 1334, 1337, 1340, and
1343 of this title, sections 1456, 1456a, and 1464 of Title
16, Conservation, and section 6213 of Title 42, The Public Health and Welfare, and enacted provisions set out
as notes under sections 1348 and 1811 of this title. For
complete classification of this Act to the Code, see
Short Title note set out under section 1801 of this title
and Tables.
This Act, referred to in subsec. (a)(1), is Pub. L.
95–372, Sept. 18, 1978, 92 Stat. 629, as amended. See note
above.
The Outer Continental Shelf Lands Act, referred to in
subsec. (a)(1), (2), is act Aug. 7, 1953, ch. 345, 67 Stat. 462,
as amended, which is classified generally to subchapter
III (§ 1331 et seq.) of chapter 29 of this title. For complete classification of this Act to the Code, see Short
Title note set out under section 1331 of this title and
Tables.
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
in subsec. (b)(2) of this section relating to the requirement that the Secretary of the Interior report to Congress on June 1 of each calendar year, see section 3003
of Pub. L. 104–66, as amended, set out as a note under
section 1113 of Title 31, Money and Finance, and the
16th item on page 111 of House Document No. 103–7.

§ 1865. Investigation of reserves of oil and gas in
Outer Continental Shelf
The Secretary of the Interior shall conduct a
continuing investigation to determine an estimate of the total discovered crude oil and natural gas reserves by fields (including proved and
indicated reserves) and undiscovered crude oil
and natural gas resources (including hypothetical and speculative resources) of the Outer
Continental Shelf.
The Secretary of the Interior shall provide a
biennial report to Congress on June 30 of every
odd numbered year on the results of such investigation.
(Pub. L. 95–372, title VI, § 606, as added Pub. L.
99–367, § 2(c), July 31, 1986, 100 Stat. 774.)
PRIOR PROVISIONS
A prior section 1865, Pub. L. 95–372, title VI, § 606,
Sept. 18, 1978, 92 Stat. 696, directed Secretary of the Interior to conduct a continuing investigation of reserves
of oil and gas in the Outer Continental Shelf, specified
items to be included in the investigation, provided for
initial and subsequent reports to Congress, and required consultation with the Federal Trade Commission and information to be made available to the Federal Trade Commission, prior to repeal by Pub. L.
99–367, § 2(c).
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
in this section relating to the requirement that the

Page 555

TITLE 43—PUBLIC LANDS

Secretary of the Interior provide a biennial report to
Congress, see section 3003 of Pub. L. 104–66, as amended,
set out as a note under section 1113 of Title 31, Money
and Finance, and the 17th item on page 111 of House
Document No. 103–7.

§ 1866. Relationship to existing law
(a) Except as otherwise expressly provided in
this chapter, nothing in this chapter shall be
construed to amend, modify, or repeal any provision of the Coastal Zone Management Act of
1972 [16 U.S.C. 1451 et seq.], the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et
seq.], the Mining and Mineral Policy Act of 1970
[30 U.S.C. 21a], or any other Act.
(b) Nothing in this chapter or any amendment
made by this Act to the Outer Continental Shelf
Lands Act (43 U.S.C. 1331 et seq.) or any other
Act shall be construed to affect or modify the
provisions of the Department of Energy Organization Act (42 U.S.C. 7101 et seq.) which provide
for the transferring and vesting of functions to
and in the Secretary of Energy or any component of the Department of Energy.
(Pub. L. 95–372, title VI, § 608, Sept. 18, 1978, 92
Stat. 698.)
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 95–372, Sept. 18, 1978, 92
Stat. 629, as amended, known as the Outer Continental
Shelf Lands Act Amendments of 1978, which enacted
this chapter, sections 1344 to 1356 of this title, and section 237 of Title 30, Mineral Lands and Mining, amended
sections 1331 to 1334, 1337, 1340, and 1343 of this title,
sections 1456, 1456a, and 1464 of Title 16, Conservation,
and section 6213 of Title 42, The Public Health and Welfare, and enacted provisions set out as notes under sections 1348 and 1811 of this title. For complete classification of this Act to the Code, see Short Title note set
out under section 1801 of this title and Tables.
The Coastal Zone Management Act of 1972, referred to
in subsec. (a), is title III of Pub. L. 89–454 as added by
Pub. L. 92–583, Oct. 27, 1972, 86 Stat. 1280, as amended,
which is classified generally to chapter 33 (§ 1451 et seq.)
of Title 16. For complete classification of this Act to
the Code, see Short Title note set out under section
1451 of Title 16 and Tables.
The National Environmental Policy Act of 1969, referred to in subsec. (a), is Pub. L. 91–190, Jan. 1, 1970, 83
Stat. 852, as amended, which is classified generally to
chapter 55 (§ 4321 et seq.) of Title 42, The Public Health
and Welfare. For complete classification of this Act to
the Code, see Short Title note set out under 4321 of
Title 42 and Tables.
The Mining and Mineral Policy Act of 1970, referred
to in subsec. (a), is Pub. L. 91–631, Dec. 31, 1970, 84 Stat.
1876, which is classified to section 21a of Title 30, Mineral Lands and Mining.
This Act, referred to in subsec. (b), is Pub. L. 95–372,
Sept. 18, 1978, 92 Stat. 629, as amended. See note above.
The Outer Continental Shelf Lands Act, referred to in
subsec. (b), is act Aug. 7, 1953, ch. 345, 67 Stat. 462, as
amended, which is classified generally to subchapter III
(§ 1331 et seq.) of chapter 29 of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 1331 of this title and Tables.
The Department of Energy Organization Act, referred
to in subsec. (b), is Pub. L. 95–91, Aug. 4, 1977, 91 Stat.
565, as amended, which is classified principally to chapter 84 (§ 7101 et seq.) of Title 42, The Public Health and
Welfare. For complete classification of this Act to the
Code, see Short Title note set out under section 7101 of
Title 42 and Tables.

§ 1901

CHAPTER 37—PUBLIC RANGELANDS
IMPROVEMENT
Sec.

1901.
1902.
1903.
1904.
1905.
1906.
1907.
1908.

Congressional findings and declaration of policy.
Definitions.
Rangelands inventory and management; public availability.
Range improvement funding.
Grazing fees; economic value of use of land;
fair market value components; annual percentage change limitation.
Authority for cooperative agreements and
payments effective as provided in appropriations.
National Grasslands; exemptions.
Experimental stewardship program.

§ 1901. Congressional findings and declaration of
policy
(a) The Congress finds and declares that—
(1) vast segments of the public rangelands
are producing less than their potential for
livestock, wildlife habitat, recreation, forage,
and water and soil conservation benefits, and
for that reason are in an unsatisfactory condition;
(2) such rangelands will remain in an unsatisfactory condition and some areas may decline further under present levels of, and funding for, management;
(3) unsatisfactory conditions on public
rangelands present a high risk of soil loss, desertification,1 and a resultant underproductivity for large acreages of the public lands; contribute significantly to unacceptable levels of
siltation and salinity in major western watersheds including the Colorado River; negatively
impact the quality and availability of scarce
western water supplies; threaten important
and frequently critical fish and wildlife habitat; prevent expansion of the forage resource
and resulting benefits to livestock and wildlife
production; increase surface runoff and flood
danger; reduce the value of such lands for recreational and esthetic purposes; and may ultimately lead to unpredictable and undesirable
long-term local and regional climatic and economic changes;
(4) the above-mentioned conditions can be
addressed and corrected by an intensive public
rangelands maintenance, management, and
improvement program involving significant
increases in levels of rangeland management
and improvement funding for multiple-use values;
(5) to prevent economic disruption and harm
to the western livestock industry, it is in the
public interest to charge a fee for livestock
grazing permits and leases on the public lands
which is based on a formula reflecting annual
changes in the costs of production;
(6) the Act of December 15, 1971 (85 Stat. 649,
16 U.S.C. 1331 et seq.), continues to be successful in its goal of protecting wild free-roaming
horses and burros from capture, branding, harassment, and death, but that certain amendments are necessary thereto to avoid excessive
costs in the administration of the Act, and to
facilitate the humane adoption or disposal of
1 So

in original.