33 USC 1321 - Oil and hazardous substance liability

U.S Code last checked for updates: Nov 22, 2024

§ 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 with respect to a permit issued or modified under section 1342 of this title, and subject to a condition in such permit,,1

 So in original.

(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, 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, and, for the purposes of applying subsections (b), (c), (e), and (o), any foreign offshore unit (as defined in section 1001 of the Oil Pollution Act 2

 See References in Text note below.

) or any other facility located seaward of the exclusive economic zone;

(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;

(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);

(19)

“Area Contingency Plan” means an Area Contingency Plan prepared under subsection (j);

(20)

“Coast Guard District Response Group” means a Coast Guard District Response Group established under subsection (j);

(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);

(23)

“National Response Unit” means the National Response Unit established under subsection (j);

(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;

(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(23) of that title;

(27)

the term “best available science” means science that—

(A)

maximizes the quality, objectivity, and integrity of information, including statistical information;

(B)

uses peer-reviewed and publicly available data; and

(C)

clearly documents and communicates risks and uncertainties in the scientific basis for such projects;

(28)

the term “Chairperson” means the Chairperson of the Council;

(29)

the term “coastal political subdivision” means any local political jurisdiction that is immediately below the State level of government, including a county, parish, or borough, with a coastline that is contiguous with any portion of the United States Gulf of Mexico;

(30)

the term “Comprehensive Plan” means the comprehensive plan developed by the Council pursuant to subsection (t);

(31)

the term “Council” means the Gulf Coast Ecosystem Restoration Council established pursuant to subsection (t);

(32)

the term “Deepwater Horizon oil spill” means the blowout and explosion of the mobile offshore drilling unit Deepwater Horizon that occurred on April 20, 2010, and resulting hydrocarbon releases into the environment;

(33)

the term “Gulf Coast region” means—

(A)

in the Gulf Coast States, the coastal zones (as that term is defined in section 1453 of title 16),¹ except that, in this section, the term “coastal zones” includes land within the coastal zones that is held in trust by, or the use of which is by law subject solely to the discretion of, the Federal Government or officers or agents of the Federal Government)) ¹ that border the Gulf of Mexico;

(B)

any adjacent land, water, and watersheds, that are within 25 miles of the coastal zones described in subparagraph (A) of the Gulf Coast States; and

(C)

all Federal waters in the Gulf of Mexico;

(34)

the term “Gulf Coast State” means any of the States of Alabama, Florida, Louisiana, Mississippi, and Texas; and

(35)

the term “Trust Fund” means the Gulf Coast Restoration Trust Fund established pursuant to section 1602 of the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012.

(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 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) to which that owner, operator, or person in charge is subject,

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 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 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); or

(ii)

fails to comply with an order pursuant to subsection (e)(1)(B);

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) 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 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—

(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), 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.

(C)

In any case in which the President or the Federal On-Scene Coordinator authorizes a deviation from the salvor as part of a deviation under subparagraph (B) from the applicable response plan required under subsection (j), the Commandant of the Coast Guard shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report describing the deviation and the reasons for such deviation not less than 3 days after such deviation is authorized.

(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

(d)

National Contingency Plan

(1)

Preparation by President

(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 case-by-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 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).

(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).

(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); and

(iv)

Area Committees established under subsection (j).

(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

(4)

Actions in accordance with 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 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), 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

(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) 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 bar

ge, 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 (c) 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) 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.

(g)

Third party liability

(h)

Rights against third parties who caused or contributed to discharge

(i)

Recovery of removal costs

(j)

National Response System

(1)

In general

(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;

(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—

(i)

personnel of Federal, State, and local agencies; and

(ii)

members of federally recognized Indian tribes, where applicable.

(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, local, and tribal 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, including advance planning with respect to the closing and reopening of fishing areas following a discharge; and

(iii)

work with State, local, and tribal officials to expedite decisions for the use of dispersants and other mitigating substances and devices.

(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, Federal, State, and local agencies, and tribal governments, 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 a framework for advance planning and decisionmaking with respect to the closing and reopening of fishing areas following a discharge, including protocols and standards for the closing and reopening of fishing areas;

(viii)

include any other information the President requires; and

(ix)

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.

(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 sha

(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

(8)

United States Government not liable

(9)

Western Alaska oil spill planning criteria program

(A)

Definitions

In this paragraph:

(i)

Alternative planning criteria

(ii)

Prince William Sound Captain of the Port Zone

(iii)

Secretary

(iv)

Vessel response plan

(v)

Western Alaska Captain of the Port Zone

(B)

Requirement

(C)

Relation to national planning criteria

(D)

Establishment of Western Alaska oil spill planning criteria

(i)

In general

The President, acting through the Commandant, in consultation with the Western Alaska Oil Spill Criteria Program Manager selected under section 323 of title 14, shall establish—

(I)

Western Alaska oil spill planning criteria for a worst case discharge of oil, and a substantial threat of such a discharge, within any part of the area of responsibility of the Western Alaska Captain of the Port Zone or Prince William Sound Captain of the Port Zone for which the Secretary has determined that the national planning criteria established pursuant to this subsection are inappropriate for a vessel operating in such area; and

(II)

standardized submission, review, approval, and compliance verification processes for the Western Alaska oil spill planning criteria established under this clause, including the quantity and frequency of drills and on-site verifications of vessel response plans approved pursuant to such planning criteria.

(ii)

Development of subregions

(I)

Development

(II)

Limitation

(iii)

Assessment

(I)

In general

(II)

Consultation

(III)

Submission

(E)

Inclusions

(i)

Requirements

The Western Alaska oil spill planning criteria established under subparagraph (D)(i) shall include planning criteria for the following:

(I)

Mechanical oil spill response resources that are required to be located within any part of the area of responsibility of the Western Alaska Captain of the Port Zone or the Prince William Sound Captain of the Port Zone for which the Secretary has determined that the national planning criteria established pursuant to this subsection are inappropriate for a vessel operating in such area.

(II)

Response times for mobilization of oil spill response resources and arrival on the scene of a worst case discharge of oil, or substantial threat of such a discharge, occurring within such part of such area.

(III)

Pre-identified vessels for oil spill response that are capable of operating in the ocean environment.

(IV)

Ensuring the availability of at least 1 oil spill removal organization that is classified by the Coast Guard and that—

(aa)

is capable of responding in all operating environments in such part of such area;

(bb)

controls oil spill response resources of dedicated and nondedicated resources within such part of such area, through ownership, contracts, agreements, or other means approved by the President, sufficient—

(AA)

to mobilize and sustain a response to a worst case discharge of oil; and

(BB)

to contain, recover, and temporarily store discharged oil;

(cc)

has pre-positioned oil spill response resources in strategic locations throughout such part of such area in a manner that ensures the ability to support response personnel, marine operations, air cargo, or other related logistics infrastructure;

(dd)

has temporary storage capability using both dedicated and non-dedicated assets located within such part of such area;

(ee)

has non-mechanical oil spill response resources capable of responding to a discharge of persistent oil and a discharge of nonpersistent oil, whether the discharged oil was carried by a vessel as fuel or cargo; and

(ff)

has wildlife response resources for primary, secondary, and tertiary responses to support carcass collection, sampling, deterrence, rescue, and rehabilitation of birds, sea turtles, marine mammals, fishery resources, and other wildlife.

(V)

With respect to tank barges carrying nonpersistent oil in bulk as cargo, oil spill response resources that are required to be carried on board.

(VI)

Specifying a minimum length of time that approval of a vessel response plan under this paragraph is valid.

(VII)

Managing wildlife protection and rehabilitation, including identified wildlife protection and rehabilitation resources in that area.

(ii)

Additional considerations

The Western Alaska oil spill planning criteria established under subparagraph (D)(i) may include planning criteria for the following:

(I)

Vessel routing measures consistent with international routing measure deviation protocols.

(II)

Maintenance of real-time continuous vessel tracking, monitoring, and engagement protocols with the ability to detect and address vessel operation anomalies.

(F)

Requirement for approval

(G)

Periodic audits

(H)

Review of determination

(I)

Vessels in Cook Inlet

(J)

Savings provisions

Nothing in this paragraph affects—

(i)

the requirements under this subsection applicable to vessel response plans for vessels operating within the area of responsibility of the Western Alaska Captain of the Port Zone, within Cook Inlet, Alaska;

(ii)

the requirements under this subsection applicable to vessel response plans for vessels operating within the area of responsibility of the Prince William Sound Captain of the Port Zone that are subject to section 5005 of the Oil Pollution Act of 1990 (33 U.S.C. 2735); or

(iii)

the authority of a Federal On-Scene Coordinator to use any available resources when responding to an oil spill.

(k)

Repealed. Pub. L. 101–380, title II, § 2002(b)(2), Aug. 18, 1990, 104 Stat. 507

(l)

Administration

(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

(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 representative 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

(n)

Jurisdiction

(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 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

(r)

Liability limitations not to limit liability under other legislation

(s)

Oil Spill Liability Trust Fund

(t)

Gulf Coast restoration and recovery

(1)

State allocation and expenditures

(A)

In general

(B)

Use of funds

(i)

Eligible activities in the Gulf Coast region

Subject to clause (iii), amounts provided to the Gulf Coast States under this subsection may only be used to carry out 1 or more of the following activities in the Gulf Coast region:

(I)

Restoration and protection of the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, and coastal wetlands of the Gulf Coast region.

(II)

Mitigation of damage to fish, wildlife, and natural resources.

(III)

Implementation of a federally approved marine, coastal, or comprehensive conservation management plan, including fisheries monitoring.

(IV)

Workforce development and job creation.

(V)

Improvements to or on State parks located in coastal areas affected by the Deepwater Horizon oil spill.

(VI)

Infrastructure projects benefitting the economy or ecological resources, including port infrastructure.

(VII)

Coastal flood protection and related infrastructure.

(VIII)

Planning assistance.

(IX)

Administrative costs of complying with this subsection.

(ii)

Activities to promote tourism and seafood in the Gulf Coast region

Amounts provided to the Gulf Coast States under this subsection may be used to carry out 1 or more of the following activities:

(I)

Promotion of tourism in the Gulf Coast Region, including recreational fishing.

(II)

Promotion of the consumption of seafood harvested from the Gulf Coast Region.

(iii)

Limitation

(I)

In general

(II)

Claims for compensation

(C)

Coastal political subdivisions

(i)

Distribution

In the case of a State where the coastal zone includes the entire State—

(I)

75 percent of funding shall be provided directly to the 8 disproportionately affected counties impacted by the Deepwater Horizon oil spill; and

(II)

25 percent shall be provided directly to nondisproportionately impacted counties within the State.

(ii)

Nondisproportionately impacted counties

The total amounts made available to coastal political subdivisions in the State of Florida under clause (i)(II) shall be distributed according to the following weighted formula:

(I)

34 percent based on the weighted average of the population of the county.

(II)

33 percent based on the weighted average of the county per capita sales tax collections estimated for fiscal year 2012.

(III)

33 percent based on the inverse proportion of the weighted average distance from the Deepwater Horizon oil rig to each of the nearest and farthest points of the shoreline.

(D)

Louisiana

(i)

In general

Of the total amounts made available to the State of Louisiana under this paragraph:

(I)

70 percent shall be provided directly to the State in accordance with this subsection.

(II)

30 percent shall be provided directly to parishes in the coastal zone (as defined in section 1453 of title 16) of the State of Louisiana according to the following weighted formula:

(aa)

40 percent based on the weighted average of miles of the parish shoreline oiled.

(bb)

40 percent based on the weighted average of the population of the parish.

(cc)

20 percent based on the weighted average of the land mass of the parish.

(ii)

Conditions

(I)

Land use plan

(II)

Other conditions

(E)

Conditions

As a condition of receiving amounts from the Trust Fund, a Gulf Coast State, including the entities described in subparagraph (F), or a coastal political subdivision shall—

(i)

agree to meet such conditions, including audit requirements, as the Secretary of the Treasury determines necessary to ensure that amounts disbursed from the Trust Fund will be used in accordance with this subsection;

(ii)

certify in such form and in such manner as the Secretary of the Treasury determines necessary that the project or program for which the Gulf Coast State or coastal political subdivision is requesting amounts—

(I)

is designed to restore and protect the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, coastal wetlands, or economy of the Gulf Coast;

(II)

carries out 1 or more of the activities described in clauses (i) and (ii) of subparagraph (B);

(III)

was selected based on meaningful input from the public, including broad-based participation from individuals, businesses, and nonprofit organizations; and

(IV)

in the case of a natural resource protection or restoration project, is based on the best available science;

(iii)

certify that the project or program and the awarding of a contract for the expenditure of amounts received under this paragraph are consistent with the standard procurement rules and regulations governing a comparable project or program in that State, including all applicable competitive bidding and audit requirements; and

(iv)

develop and submit a multiyear implementation plan for the use of such amounts, which may include milestones, projected completion of each activity, and a mechanism to evaluate the success of each activity in helping to restore and protect the Gulf Coast region impacted by the Deepwater Horizon oil spill.

(F)

Approval by State entity, task force, or agency

The following Gulf Coast State entities, task forces, or agencies shall carry out the duties of a Gulf Coast State pursuant to this paragraph:

(i)

Alabama

(I)

In general

In the State of Alabama, the Alabama Gulf Coast Recovery Council, which shall be comprised of only the following:

(aa)

The Governor of Alabama, who shall also serve as Chairperson and preside over the meetings of the Alabama Gulf Coast Recovery Council.

(bb)

The Director of the Alabama State Port Authority, who shall also serve as Vice Chairperson and preside over the meetings of the Alabama Gulf Coast Recovery Council in the absence of the Chairperson.

(cc)

The Chairman of the Baldwin County Commission.

(dd)

The President of the Mobile County Commission.

(ee)

The Mayor of the city of Bayou La Batre.

(ff)

The Mayor of the town of Dauphin Island.

(gg)

The Mayor of the city of Fairhope.

(hh)

The Mayor of the city of Gulf Shores.

(ii)

The Mayor of the city of Mobile.

(jj)

The Mayor of the city of Orange Beach.

(II)

Vote

(III)

Majority vote

(IV)

Limitation on administrative expenses

(ii)

Louisiana

(iii)

Mississippi

(iv)

Texas

(G)

Compliance with eligible activities

If the Secretary of the Treasury determines that an expenditure by a Gulf Coast State or coastal political subdivision of amounts made available under this subsection does not meet one of the activities described in clauses (i) and (ii) of subparagraph (B), the Secretary shall make no additional amounts from the Trust Fund available to that Gulf Coast State or coastal political subdivision until such time as an amount equal to the amount expended for the unauthorized use—

(i)

has been deposited by the Gulf Coast State or coastal political subdivision in the Trust Fund; or

(ii)

has been authorized by the Secretary of the Treasury for expenditure by the Gulf Coast State or coastal political subdivision for a project or program that meets the requirements of this subsection.

(H)

Compliance with conditions

(I)

Public input

(J)

Previously approved projects and programs

A Gulf Coast State or coastal political subdivision shall be considered to have met the conditions of subparagraph (E) for a specific project or program if, before July 6, 2012—

(i)

the Gulf Coast State or coastal political subdivision has established conditions for carrying out projects and programs that are substantively the same as the conditions described in subparagraph (E); and

(ii)

the applicable project or program carries out 1 or more of the activities described in clauses (i) and (ii) of subparagraph (B).

(K)

Local preference

(L)

Unused funds

(M)

Judicial review

(N)

Cost-sharing

(i)

In general

(ii)

Effect on other funds

(2)

Council establishment and allocation

(A)

In general

(B)

Council expenditures

(i)

In general

(ii)

Allocation and expenditure procedures

(iii)

Administrative expenses

(C)

Gulf Coast Ecosystem Restoration Council

(i)

Establishment

(ii)

Membership

The Council shall consist of the following members, or in the case of a Federal agency, a designee at the level of the Assistant Secretary or the equivalent:

(I)

The Secretary of the Interior.

(II)

The Secretary of the Army.

(III)

The Secretary of Commerce.

(IV)

The Administrator of the Environmental Protection Agency.

(V)

The Secretary of Agriculture.

(VI)

The head of the department in which the Coast Guard is operating.

(VII)

The Governor of the State of Alabama.

(VIII)

The Governor of the State of Florida.

(IX)

The Governor of the State of Louisiana.

(X)

The Governor of the State of Mississippi.

(XI)

The Governor of the State of Texas.

(iii)

Alternate

(iv)

Chairperson

(v)

Presidential appointment

(vi)

Council actions

(I)

In general

The following actions by the Council shall require the affirmative vote of the Chairperson and a majority of the State members to be effective:

(aa)

Approval of a Comprehensive Plan and future revisions to a Comprehensive Plan.

(bb)

Approval of State plans pursuant to paragraph (3)(B)(iv).

(cc)

Approval of reports to Congress pursuant to clause (vii)(VII).

(dd)

Approval of transfers pursuant to subparagraph (E)(ii)(I).

(ee)

Other significant actions determined by the Council.

(II)

Quorum

(III)

Affirmative vote requirement considered met

(IV)

Public transparency

(vii)

Duties of Council

The Council shall—

(I)

develop the Comprehensive Plan and future revisions to the Comprehensive Plan;

(II)

identify as soon as practicable the projects that—

(aa)

have been authorized prior to July 6, 2012, but not yet commenced; and

(bb)

if implemented quickly, would restore and protect the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, barrier islands, dunes, and coastal wetlands of the Gulf Coast region;

(III)

establish such other 1 or more advisory committees as may be necessary to assist the Council, including a scientific advisory committee and a committee to advise the Council on public policy issues;

(IV)

collect and consider scientific and other research associated with restoration of the Gulf Coast ecosystem, including research, observation, and monitoring carried out pursuant to sections 1604 and 1605 of the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012;

(V)

develop standard terms to include in contracts for projects and programs awarded pursuant to the Comprehensive Plan that provide a preference to individuals and companies that reside in, are headquartered in, or are principally engaged in business in a Gulf Coast State;

(VI)

prepare an integrated financial plan and recommendations for coordinated budget requests for the amounts proposed to be expended by the Federal agencies represented on the Council for projects and programs in the Gulf Coast States; and

(VII)

submit to Congress an annual report that—

(aa)

summarizes the policies, strategies, plans, and activities for addressing the restoration and protection of the Gulf Coast region;

(bb)

describes the projects and programs being implemented to restore and protect the Gulf Coast region, including—

(AA)

a list of each project and program;

(BB)

an identification of the funding provided to projects and programs identified in subitem (AA);

(CC)

an identification of each recipient for funding identified in subitem (BB); and

(DD)

a description of the length of time and funding needed to complete the objectives of each project and program identified in subitem (AA);

(cc)

makes such recommendations to Congress for modifications of existing laws as the Council determines necessary to implement the Comprehensive Plan;

(dd)

reports on the progress on implementation of each project or program—

(AA)

after 3 years of ongoing activity of the project or program, if applicable; and

(BB)

on completion of the project or program;

(ee)

includes the information required to be submitted under section 1605(c)(4) of the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012; and

(ff)

submits the reports required under item (dd) to—

(AA)

the Committee on Science, Space, and Technology, the Committee on Natural Resources, the Committee on Transportation and Infrastructure, and the Committee on Appropriations of the House of Representatives; and

(BB)

the Committee on Environment and Public Works, the Committee on Commerce, Science, and Transportation, the Committee on Energy and Natural Resources, and the Committee on Appropriations of the Senate.

(viii)

Application of chapter 10 of title 5

(ix)

Sunset

(D)

Comprehensive plan

(i)

Proposed plan

(I)

In general

(II)

Inclusions

(ii)

Publication

(I)

Initial plan

(II)

Cooperation with Gulf Coast Restoration Task Force

(III)

Considerations

(IV)

Contents

The initial Comprehensive Plan shall include—

(aa)

such provisions as are necessary to fully incorporate in the Comprehensive Plan the strategy, projects, and programs recommended by the President’s Gulf Coast Restoration Task Force;

(bb)

a list of any project or program authorized prior to July 6, 2012, but not yet commenced, the completion of which would further the purposes and goals of this subsection and of the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012;

(cc)

a description of the manner in which amounts from the Trust Fund projected to be made available to the Council for the succeeding 10 years will be allocated; and

(dd)

subject to available funding in accordance with clause (iii), a prioritized list of specific projects and programs to be funded and carried out during the 3-year period immediately following the date of publication of the initial Comprehensive Plan, including a table that illustrates the distribution of projects and programs by the Gulf Coast State.

(V)

Plan updates

The Council shall update—

(aa)

the Comprehensive Plan every 5 years in a manner comparable to the manner established in this subparagraph for each 5-year period for which amounts are expected to be made available to the Gulf Coast States from the Trust Fund; and

(bb)

the 3-year list of projects and programs described in subclause (IV)(dd) annually.

(iii)

Restoration priorities

Except for projects and programs described in clause (ii)(IV)(bb), in selecting projects and programs to include on the 3-year list described in clause (ii)(IV)(dd), based on the best available science, the Council shall give highest priority to projects that address 1 or more of the following criteria:

(I)

Projects that are projected to make the greatest contribution to restoring and protecting the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, and coastal wetlands of the Gulf Coast region, without regard to geographic location within the Gulf Coast region.

(II)

Large-scale projects and programs that are projected to substantially contribute to restoring and protecting the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, and coastal wetlands of the Gulf Coast ecosystem.

(III)

Projects contained in existing Gulf Coast State comprehensive plans for the restoration and protection of natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, and coastal wetlands of the Gulf Coast region.

(IV)

Projects that restore long-term resiliency of the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches, and coastal wetlands most impacted by the Deepwater Horizon oil spill.

(E)

Implementation

(i)

In general

(ii)

Administrative responsibility

(I)

In general

(II)

Transfer of amounts

(III)

Limitation on transfers

(aa)

Grants to nongovernmental entities

(bb)

Reporting of grantees

(cc)

Annual reporting of grantees

(IV)

Project and program limitation

(F)

Coordination

(3)

Oil spill restoration impact allocation

(A)

In general

(i)

Disbursement

(ii)

Formula

Subject to subparagraph (B), for each Gulf Coast State, the amount disbursed under this paragraph shall be based on a formula established by the Council by regulation that is based on a weighted average of the following criteria:

(I)

40 percent based on the proportionate number of miles of shoreline in each Gulf Coast State that experienced oiling on or before April 10, 2011, compared to the total number of miles of shoreline that experienced oiling as a result of the Deepwater Horizon oil spill.

(II)

40 percent based on the inverse proportion of the average distance from the mobile offshore drilling unit Deepwater Horizon at the time of the explosion to the nearest and farthest point of the shoreline that experienced oiling of each Gulf Coast State.

(III)

20 percent based on the average population in the 2010 decennial census of coastal counties bordering the Gulf of Mexico within each Gulf Coast State.

(iii)

Minimum allocation

(B)

Disbursement of funds

(i)

In general

The Council shall disburse amounts to the respective Gulf Coast States in accordance with the formula developed under subparagraph (A) for projects, programs, and activities that will improve the ecosystems or economy of the Gulf Coast region, subject to the condition that each Gulf Coast State submits a plan for the expenditure of amounts disbursed under this paragraph that meets the following criteria:

(I)

All projects, programs, and activities included in the plan are eligible activities pursuant to clauses (i) and (ii) of paragraph (1)(B).

(II)

The projects, programs, and activities included in the plan contribute to the overall economic and ecological recovery of the Gulf Coast.

(III)

The plan takes into consideration the Comprehensive Plan and is consistent with the goals and objectives of the Plan, as described in paragraph (2)(B)(i).

(ii)

Funding

(I)

In general

(II)

Exception

The plan described in clause (i) may propose to use more than 25 percent of the funding made available for infrastructure projects eligible under subclauses (VI) and (VII) of paragraph (1)(B)(i) if the plan certifies that—

(aa)

ecosystem restoration needs in the State will be addressed by the projects in the proposed plan; and

(bb)

additional investment in infrastructure is required to mitigate the impacts of the Deepwater Horizon Oil Spill to the ecosystem or economy.

(iii)

Development

The plan described in clause (i) shall be developed by—

(I)

in the State of Alabama, the Alabama Gulf Coast Recovery Council established under paragraph (1)(F)(i);

(II)

in the State of Florida, a consortia 4

 So in original. Probably should be “consortium”.

of local political subdivisions that includes at a minimum 1 representative of each affected county;

(III)

in the State of Louisiana, the Coastal Protection and Restoration Authority of Louisiana;

(IV)

in the State of Mississippi, the Office of the Governor or an appointee of the Office of the Governor; and

(V)

in the State of Texas, the Office of the Governor or an appointee of the Office of the Governor.

(iv)

Approval

(C)

Disapproval

If the Council disapproves a plan pursuant to subparagraph (B)(iv), the Council shall—

(i)

provide the reasons for disapproval in writing; and

(ii)

consult with the State to address any identified deficiencies with the State plan.

(D)

Failure to submit adequate plan

(E)

Judicial review

(F)

Cost-sharing

(i)

In general

A Gulf Coast State or coastal political subdivision may use, in whole or in part, amounts made available to that Gulf Coast State or coastal political subdivision under this paragraph to satisfy the non-Federal share of any project or program that—

(I)

is authorized by other Federal law; and

(II)

is an eligible activity described in clause (i) or (ii) of paragraph (1)(B).

(ii)

Effect on other funds

(4)

Authorization of interest transfers

Of the total amount made available for any fiscal year from the Trust Fund that is equal to the interest earned by the Trust Fund and proceeds from investments made by the Trust Fund in the preceding fiscal year—

(A)

50 percent shall be divided equally between—

(i)

the Gulf Coast Ecosystem Restoration Science, Observation, Monitoring, and Technology program authorized in section 1604 of the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012; and

(ii)

the centers of excellence research grants authorized in section 1605 of that Act; and

(B)

50 percent shall be made available to the Gulf Coast Ecosystem Restoration Council to carry out the Comprehensive Plan pursuant to paragraph (2).

(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; Pub. L. 112–141, div. A, title I, § 1603, July 6, 2012, 126 Stat. 589; Pub. L. 113–281, title III, § 313, Dec. 18, 2014, 128 Stat. 3048; Pub. L. 115–91, div. C, title XXXV, § 3508(b)(2), Dec. 12, 2017, 131 Stat. 1916; Pub. L. 115–232, div. C, title XXXV, § 3541(b)(5), Aug. 13, 2018, 132 Stat. 2323; Pub. L. 117–263, div. K, title CXIII, §§ 11306, 11309(b)(1), Dec. 23, 2022, 136 Stat. 4078, 4081; Pub. L. 117–286, § 4(a)(201), Dec. 27, 2022, 136 Stat. 4328.)

cite as: 33 USC 1321

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