§ 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
So in original. Probably should be “or”.
, (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 [
(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 through seizure or otherwise in connection with law enforcement activity, or through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government 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 certain alaska native villages and native corporations.—
(i)
In general.—
The term “owner or operator” does not include, with respect to a facility conveyed to a Native village or Native Corporation (as those terms are defined in section 3 of the Alaska Native Claims Settlement Act [
43 U.S.C. 1602]) under the Alaska Native Claims Settlement Act [
43 U.S.C. 1601 et seq.]—
(I)
the Native village or Native Corporation that received the facility from the United States Government; or
(II)
a successor in interest to which the facility was conveyed under section 14(c) of such Act [
43 U.S.C. 1613(c)].
(ii)
Limitation.—
The exclusion provided under this subparagraph shall not apply to any entity described in clause (i) that causes or contributes to a release or threatened release of a hazardous substance from the facility conveyed as described in such clause.
(F)
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.
(G)
Participation in management.—
For purposes of subparagraph (F)—
(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)).
(H)
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) 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,
(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.
if the vessel or facility was security for an extension of credit previously contracted;
(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
2
So in original. Probably should be “mean”.
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 2 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
2 remove, removal, remedy, and remedial action;,
all such terms (including the terms “removal” and “remedial action”) include enforcement activities related thereto.
(26)
The terms “transport” or “transportation” means
2 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)
4
See References in Text note below.
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. § 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.—
(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 for which there is no viable responsible party and that is determined by the Administrator or the State, as appropriate, to be a site that will be assessed, investigated, or cleaned up by a person that is not potentially liable for cleaning up the site under this chapter or any other law pertaining to the cleanup of petroleum products; 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.—
(A)
In general.—
The term “bona fide prospective purchaser” means, with respect to a facility—
(i)
a person who—
(I)
acquires ownership of the facility after January 11, 2002; and
(II)
establishes by a preponderance of the evidence each of the criteria described in clauses (i) through (viii) of subparagraph (B); and
(ii)
a person—
(I)
who acquires a leasehold interest in the facility after January 11, 2002;
(II)
who establishes by a preponderance of the evidence that the leasehold interest is not designed to avoid liability under this chapter by any person; and
(III)
with respect to whom any of the following conditions apply:
(aa)
The owner of the facility that is subject to the leasehold interest is a person described in clause (i).
(bb)
(AA)
The owner of the facility that is subject to the leasehold interest was a person described in clause (i) at the time the leasehold interest was acquired, but can no longer establish by a preponderance of the evidence each of the criteria described in clauses (i) through (viii) of subparagraph (B) due to circumstances unrelated to any action of the person who holds the leasehold interest; and
(BB)
the person who holds the leasehold interest establishes by a preponderance of the evidence each of the criteria described in clauses (i), (iii), (iv), (v), (vi), (vii), and (viii) of subparagraph (B).
(cc)
The person who holds the leasehold interest establishes by a preponderance of the evidence each of the criteria described in clauses (i) through (viii) of subparagraph (B).
(B)
Criteria.—
The criteria described in this subparagraph are as follows:
(i)
Disposal prior to acquisition.—
All disposal of hazardous substances at the facility occurred before the person acquired the facility.
(ii)
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 subclauses (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 clause.
(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 clause.
(iii)
Notices.—
The person provides all legally required notices with respect to the discovery or release of any hazardous substances at the facility.
(iv)
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.
(v)
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).
(vi)
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.
(vii)
Requests; subpoenas.—
The person complies with any request for information or administrative subpoena issued by the President under this chapter.
(viii)
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—
(aa)
any direct or indirect familial relationship; or
(bb)
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, by a tenancy, by the instruments by which a leasehold interest in the facility is created, or by a contract for the sale of goods or services); or
(II)
the result of a reorganization of a business entity that was potentially liable.
(41)
Eligible response site.—
(A)
In general.—
The term “eligible response site” means a site that meets the definition of a brownfield site in subparagraphs (A) and (B) of paragraph (39), as modified by subparagraphs (B) and (C) of this paragraph.
(B)
Inclusions.—
The term “eligible response site” includes—
(i)
notwithstanding paragraph (39)(B)(ix), a portion of a facility, for which portion assistance for response activity has been obtained under subtitle I of the Solid Waste Disposal Act (
42 U.S.C. 6991 et seq.) from the Leaking Underground Storage Tank Trust Fund established under
section 9508 of title 26; or
(ii)
a site for which, notwithstanding the exclusions provided in subparagraph (C) or paragraph (39)(B), the President determines, on a site-by-site basis and after consultation with the State, that limitations on enforcement under
section 9628 of this title at sites specified in clause (iv), (v), (vi) or (viii) of paragraph (39)(B) would be appropriate and will—
(I)
protect human health and the environment; and
(II)
promote economic development or facilitate the creation of, preservation of, or addition to a park, a greenway, undeveloped property, recreational property, or other property used for nonprofit purposes.
(C)
Exclusions.—
The term “eligible response site” does not include—
(i)
a facility for which the President—
(I)
conducts or has conducted a preliminary assessment or site inspection; and
(II)
after consultation with the State, determines or has determined that the site obtains a preliminary score sufficient for possible listing on the National Priorities List, or that the site otherwise qualifies for listing on the National Priorities List; unless the President has made a determination that no further Federal action will be taken; or
(ii)
facilities that the President determines warrant particular consideration as identified by regulation, such as sites posing a threat to a sole-source drinking water aquifer or a sensitive ecosystem.
([Pub. L. 96–510, title I, § 101], Dec. 11, 1980, [94 Stat. 2767]; [Pub. L. 96–561, title II, § 238(b)], Dec. 22, 1980, [94 Stat. 3300]; [Pub. L. 99–499, title I], §§ 101, 114(b), 127(a), title V, § 517(c)(2), Oct. 17, 1986, [100 Stat. 1615], 1652, 1692, 1774; [Pub. L. 100–707, title I, § 109(v)], Nov. 23, 1988, [102 Stat. 4710]; [Pub. L. 103–429, § 7(e)(1)], Oct. 31, 1994, [108 Stat. 4390]; [Pub. L. 104–208, div. A, title I, § 101(a) [title II, § 211(b)]], title II, § 2502(b), Sept. 30, 1996, [110 Stat. 3009], 3009–41, 3009–464; [Pub. L. 104–287, § 6(j)(1)], Oct. 11, 1996, [110 Stat. 3399]; [Pub. L. 106–74, title IV, § 427], Oct. 20, 1999, [113 Stat. 1095]; [Pub. L. 107–118, title II], §§ 211(a), 222(a), 223, 231(a), Jan. 11, 2002, [115 Stat. 2360], 2370, 2372, 2375; [Pub. L. 115–141, div. N], §§ 2–5(a), Mar. 23, 2018, [132 Stat. 1052], 1053.)