Comprehensive Environmental Response, Compensation, and Liability Act

• Author: Environmental Law Reporter
• Pages: 301-370

Comprehensive Environmental Response, Compensation,

and Liability Act

42 U.S.C. §§9601-9675

Subchapter I—Hazardous Substances Releases, Liability, Compensation

§9601.[CERCLA §101]

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.

(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 de-

fined 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 manage-

ment 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 am-

bient air within the United States or under the jurisdiction of the

United States.

(9) The term “facility” means (A) any building, structure, instal-

lation, equipment, pipe or pipeline (including any pipe into a sewer

or publicly owned treatment works), well, pit, pond, lagoon, im-

poundment, ditch, landfill, storage container, motor vehicle, rolling

stock, or aircraft, or (B) any site or area where a hazardous sub-

stance has been deposited, stored, disposed of, or placed, or other-

wise 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) dis-

charges in compliance with a permit under section 1342 of title 33,

(B) discharges resulting from circumstances identified and re-

viewed and made part of the public record with respect to a permit

issued or modified under section 1342 of title 33 and subject to a

condition of such permit, (C) continuous or anticipated intermittent

discharges from a point source, identified in a permit or permit ap-

plication under section 1342 of title 33, which are caused by events

occurring within the scope of relevant operating or treatment sys-

tems, (D) discharges in compliance with a legally enforceable per-

mit under section 1344 of title 33, (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 pro-

cedure or bioassay limitation or condition, or other control on the

hazardous substances in such releases, (F) any release in compli-

ance with a legally enforceable permit issued under section 1412 of

title 33 of 1section 1413 of title 33, (G) any injection of fluids au-

thorized under Federal underground injection control programs or

State programs submitted for Federal approval (and not disap-

proved by the Administrator of the Environmental Protection

Agency) pursut seq.], (H) any emission into the air subject to a per-

mit or control regulation under section 111 [42 U.S.C. 7411], sec-

tion 112 [42 Uant to part C of the Safe Drinking Water Act [42

U.S.C. 300h e.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 sub-

mitted in accordance with section 110 of the Clean Air Act [42

U.S.C. 7410] (and not disapproved by the Administrator of the En-

vironmental Protection Agency), including any schedule or waiver

granted, promulgated, or approved under these sections, (I) any in-

jection 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 natu-

ral 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 1317 (b) or (c) of title

33 and enforceable requirements in a pretreatment program submit-

ted by a State or municipality for Federal approval under section

1342 of title 33, and (K) any release of source, special nuclear, or

byproduct material, as those terms are defined in the Atomic En-

ergy Act of 1954 [42 U.S.C. 2011 et seq.], in compliance with a le-

gally enforceable license, permit, regulation, or order issued pursu-

ant 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 responsibil-

ity for an owner or operator under this chapter.

(14) The term “hazardous substance” means (A) any substance

designated pursuant to section 1321(b)(2)(A) of title 33, (B) any

element, compound, mixture, solution, or substance designated

pursuant to section 9602 of this title, (C) any hazardous waste hav-

ing the characteristics identified under or listed pursuant to sec-

tion 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

1317(a) of title 33, (E) any hazardous air pollutant listed under

section 112 of the Clean Air Act [42 U.S.C. 7412], and (F) any im-

minently hazardous chemical substance or mixture with respect to

which the Administrator has taken action pursuant to section 2606

of title 15. 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 subpara-

graphs (A) through (F) of this paragraph, and the term does not in-

clude natural gas, natural gas liquids, liquefied natural gas, or syn-

thetic gas usable for fuel (or mixtures of natural gas and such syn-

thetic 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, bi-

ota, air, water, ground water, drinking water supplies, and other

such resources belonging to, managed by, held in trust by, apper-

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CERCLA §101 COMPREHENSIVE ENVIRONMENTAL RESPONSE, 42 U.S.C. §9601

COMPENSATION,AND LIABILITY ACT

1. So in original. Probably should be “or”.

taining 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 for-

eign government, any Indian tribe, or, if such resources are sub-

ject 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 jurisdic-

tion of the United States and is located in, on, or under any other wa-

ters, 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 lo-

cated 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 vir-

tue of United States citizenship, United States vessel documenta-

tion 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 bank-

ruptcy, 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

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 trans-

portation, (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 condi-

tions beyond his control.

(C) In the case of a hazardous substance which has been deliv-

ered by a common or contract carrier to a disposal or treatment fa-

cility 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 con-

ditions beyond its control.

(D) The term “owner or operator” does not include a unit of State

or local government which acquired ownership or control involun-

tarily 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 sub-

stantively, 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 manage-

ment of a vessel or facility, holds indicia of ownership pri-

marily 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, under-

takes a response action under section 9607(d)(1) 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 fi-

nance transaction), or otherwise divest the person of the vessel

or 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 op-

erational affairs of a vessel or facility; and

(II) does not include merely having the capacity to influ-

ence, or the unexercised right to control, vessel or facility

operations;

(ii) a person that is a lender and that holds indicia of owner-

ship primarily to protect a security interest in a vessel or facil-

ity 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 environ-

mental 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 ves-

sel 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 as-

sumed or manifested responsibility—

(aa) for the overall management of the vessel or facil-

ity encompassing day-to-day decisionmaking with re-

spect to environmental compliance; or

(bb) over all or substantially all of the operational

functions (as distinguished from financial or administra-

tive functions) of the vessel or facility other than the func-

tion 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 in-

clude—

(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;

(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

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42 U.S.C. §9601 ENVIRONMENTALLAW DESKBOOK CERCLA §101

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 manage-

ment (within the meaning of clauses (i) and (ii)).

(G) Other terms

As used in this Act:

(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 ap-

propriate Federal banking agency or the appropriate State

bank supervisor (as those terms are defined in section

1813 of title 122or 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 term “foreclosure” and “foreclose” mean, respec-

tively, 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 convey-

ance 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 pre-

viously 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 se-

curity interest of the person.

(iv) Lender

The term “lender” means—

(I) an insured depository institution (as defined in sec-

tion 1813 of title 12);

(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 Ag-

ricultural 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 de-

fault in the repayment of an extension of credit, or acts as

a surety with respect to an extension of credit, to a nonaf-

filiated person; and

(VIII) a person that provides title insurance and that ac-

quires a vessel or facility as a result of assignment or con-

veyance 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 interset

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 en-

tity, 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 ex-

posure to persons solely within a workplace, with respect to a claim

which such persons may assert against the employer of such per-

sons, (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 re-

quirements with respect to financial protection established by the

Nuclear Regulatory Commission under section 170 of such Act [42

U.S.C. 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” means3the cleanup or re-

moval 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 wel-

fare or to the environment, which may otherwise result from a re-

lease or threat of release. The term includes, in addition, without be-

ing 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, ac-

tion taken under section 9604(b) of this title, and any emergency as-

sistance 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” means4those ac-

tions consistent with permanent remedy taken instead of or in addi-

tion to removal actions in the event of a release or threatened release

of a hazardous substance into the environment, to prevent or mini-

mize the release of hazardous substances so that they do not migrate

to cause substantial danger to present or future public health or wel-

fare 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 asso-

ciated contaminated materials, recycling or reuse, diversion, de-

struction, segregation of reactive wastes, dredging or excavations,

repair or replacement of leaking containers, collection of leachate

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CERCLA §101 COMPREHENSIVE ENVIRONMENTAL RESPONSE, 42 U.S.C. §9601

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2. So in original. Probably should be followed by a closing parenthesis.

3. So in original. Probably should be “mean”.

4. So in original. Probably should be “mean”.