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U.S. Code as of:
01/19/04
Section 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.
(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 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 imminently 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 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 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-to-day 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;
(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);
(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. 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 remedial 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 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 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.
(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, 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. Sec. 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
(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 site-by-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 facility 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 contractual, 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.
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