
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC6991b]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
                    CHAPTER 82--SOLID WASTE DISPOSAL
 
         SUBCHAPTER IX--REGULATION OF UNDERGROUND STORAGE TANKS
 
Sec. 6991b. Release detection, prevention, and correction 
        regulations
        

(a) Regulations

    The Administrator, after notice and opportunity for public comment, 
and at least three months before the effective dates specified in 
subsection (f) of this section, shall promulgate release detection, 
prevention, and correction regulations applicable to all owners and 
operators of underground storage tanks, as may be necessary to protect 
human health and the environment.

(b) Distinctions in regulations

    In promulgating regulations under this section, the Administrator 
may distinguish between types, classes, and ages of underground storage 
tanks. In making such distinctions, the Administrator may take into 
consideration factors, including, but not limited to: location of the 
tanks, soil and climate conditions, uses of the tanks, history of 
maintenance, age of the tanks, current industry recommended practices, 
national consensus codes, hydrogeology, water table, size of the tanks, 
quantity of regulated substances periodically deposited in or dispensed 
from the tank, the technical capability of the owners and operators, and 
the compatibility of the regulated substance and the materials of which 
the tank is fabricated.

(c) Requirements

    The regulations promulgated pursuant to this section shall include, 
but need not be limited to, the following requirements respecting all 
underground storage tanks--
        (1) requirements for maintaining a leak detection system, an 
    inventory control system together with tank testing, or a comparable 
    system or method designed to identify releases in a manner 
    consistent with the protection of human health and the environment;
        (2) requirements for maintaining records of any monitoring or 
    leak detection system or inventory control system or tank testing or 
    comparable system;
        (3) requirements for reporting of releases and corrective action 
    taken in response to a release from an underground storage tank;
        (4) requirements for taking corrective action in response to a 
    release from an underground storage tank;
        (5) requirements for the closure of tanks to prevent future 
    releases of regulated substances into the environment; and
        (6) requirements for maintaining evidence of financial 
    responsibility for taking corrective action and compensating third 
    parties for bodily injury and property damage caused by sudden and 
    nonsudden accidental releases arising from operating an underground 
    storage tank.

(d) Financial responsibility

    (1) Financial responsibility required by this subsection may be 
established in accordance with regulations promulgated by the 
Administrator by any one, or any combination, of the following: 
insurance, guarantee, surety bond, letter of credit, qualification as a 
self-insurer or any other method satisfactory to the Administrator. In 
promulgating requirements under this subsection, the Administrator is 
authorized to specify policy or other contractual terms, conditions, or 
defenses which are necessary or are unacceptable in establishing such 
evidence of financial responsibility in order to effectuate the purposes 
of this subchapter.
    (2) In any case where the owner or operator is in bankruptcy, 
reorganization, or arrangement pursuant to the Federal Bankruptcy Code 
or where with reasonable diligence jurisdiction in any State court of 
the Federal courts cannot be obtained over an owner or operator likely 
to be solvent at the time of judgment, any claim arising from conduct 
for which evidence of financial responsibility must be provided under 
this subsection may be asserted directly against the guarantor providing 
such evidence of financial responsibility. In the case of any action 
pursuant to this paragraph such guarantor shall be entitled to invoke 
all rights and defenses which would have been available to the owner or 
operator if any action had been brought against the owner or operator by 
the claimant and which would have been available to the guarantor if an 
action had been brought against the guarantor by the owner or operator.
    (3) The total liability of any guarantor shall be limited to the 
aggregate amount which the guarantor has provided as evidence of 
financial responsibility to the owner or operator under this section. 
Nothing in this subsection shall be construed to limit any other State 
or Federal statutory, contractual or common law liability of a guarantor 
to its owner or operator including, but not limited to, the liability of 
such guarantor for bad faith either in negotiating or in failing to 
negotiate the settlement of any claim. Nothing in this subsection shall 
be construed to diminish the liability of any person under section 9607 
or 9611 of this title or other applicable law.
    (4) For the purpose of this subsection, 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 subsection.
    (5)(A) The Administrator, in promulgating financial responsibility 
regulations under this section, may establish an amount of coverage for 
particular classes or categories of underground storage tanks containing 
petroleum which shall satisfy such regulations and which shall not be 
less than $1,000,000 for each occurrence with an appropriate aggregate 
requirement.
    (B) The Administrator may set amounts lower than the amounts 
required by subparagraph (A) of this paragraph for underground storage 
tanks containing petroleum which are at facilities not engaged in 
petroleum production, refining, or marketing and which are not used to 
handle substantial quantities of petroleum.
    (C) In establishing classes and categories for purposes of this 
paragraph, the Administrator may consider the following factors:
        (i) The size, type, location, storage, and handling capacity of 
    underground storage tanks in the class or category and the volume of 
    petroleum handled by such tanks.
        (ii) The likelihood of release and the potential extent of 
    damage from any release from underground storage tanks in the class 
    or category.
        (iii) The economic impact of the limits on the owners and 
    operators of each such class or category, particularly relating to 
    the small business segment of the petroleum marketing industry.
        (iv) The availability of methods of financial responsibility in 
    amounts greater than the amount established by this paragraph.
        (v) Such other factors as the Administrator deems pertinent.

    (D) The Administrator may suspend enforcement of the financial 
responsibility requirements for a particular class or category of 
underground storage tanks or in a particular State, if the Administrator 
makes a determination that methods of financial responsibility 
satisfying the requirements of this subsection are not generally 
available for underground storage tanks in that class or category, and--
        (i) steps are being taken to form a risk retention group for 
    such class of tanks; or
        (ii) such State is taking steps to establish a fund pursuant to 
    section 6991c(c)(1) of this title to be submitted as evidence of 
    financial responsibility.

A suspension by the Administrator pursuant to this paragraph shall 
extend for a period not to exceed 180 days. A determination to suspend 
may be made with respect to the same class or category or for the same 
State at the end of such period, but only if substantial progress has 
been made in establishing a risk retention group, or the owners or 
operators in the class or category demonstrate, and the Administrator 
finds, that the formation of such a group is not possible and that the 
State is unable or unwilling to establish such a fund pursuant to clause 
(ii).

(e) New tank performance standards

    The Administrator shall, not later than three months prior to the 
effective date specified in subsection (f) of this section, issue 
performance standards for underground storage tanks brought into use on 
or after the effective date of such standards. The performance standards 
for new underground storage tanks shall include, but need not be limited 
to, design, construction, installation, release detection, and 
compatibility standards.

(f) Effective dates

    (1) Regulations issued pursuant to subsection \1\ (c) and (d) of 
this section, and standards issued pursuant to subsection (e) of this 
section, for underground storage tanks containing regulated substances 
defined in section 6991(2)(B) of this title (petroleum, including crude 
oil or any fraction thereof which is liquid at standard conditions of 
temperature and pressure) shall be effective not later than thirty 
months after November 8, 1984.
---------------------------------------------------------------------------
    \1\ So in original. Probably should be ``subsections''.
---------------------------------------------------------------------------
    (2) Standards issued pursuant to subsection (e) of this section 
(entitled ``New Tank Performance Standards'') for underground storage 
tanks containing regulated substances defined in section 6991(2)(A) of 
this title shall be effective not later than thirty-six months after 
November 8, 1984.
    (3) Regulations issued pursuant to subsection (c) of this section 
(entitled ``Requirements'') and standards issued pursuant to subsection 
(d) of this section (entitled ``Financial Responsibility'') for 
underground storage tanks containing regulated substances defined in 
section 6991(2)(A) of this title shall be effective not later than 
forty-eight months after November 8, 1984.

(g) Interim prohibition

    (1) Until the effective date of the standards promulgated by the 
Administrator under subsection (e) of this section and after one hundred 
and eighty days after November 8, 1984, no person may install an 
underground storage tank for the purpose of storing regulated substances 
unless such tank (whether of single or double wall construction)--
        (A) will prevent releases due to corrosion or structural failure 
    for the operational life of the tank;
        (B) is cathodically protected against corrosion, constructed of 
    noncorrosive material, steel clad with a noncorrosive material, or 
    designed in a manner to prevent the release or threatened release of 
    any stored substance; and
        (C) the material used in the construction or lining of the tank 
    is compatible with the substance to be stored.

    (2) Notwithstanding paragraph (1), if soil tests conducted in 
accordance with ASTM Standard G57-78, or another standard approved by 
the Administrator, show that soil resistivity in an installation 
location is 12,000 ohm/cm or more (unless a more stringent standard is 
prescribed by the Administrator by rule), a storage tank without 
corrosion protection may be installed in that location during the period 
referred to in paragraph (1).

(h) EPA response program for petroleum

                       (1) Before regulations

        Before the effective date of regulations under subsection (c) of 
    this section, the Administrator (or a State pursuant to paragraph 
    (7)) is authorized to--
            (A) require the owner or operator of an underground storage 
        tank to undertake corrective action with respect to any release 
        of petroleum when the Administrator (or the State) determines 
        that such corrective action will be done properly and promptly 
        by the owner or operator of the underground storage tank from 
        which the release occurs; or
            (B) undertake corrective action with respect to any release 
        of petroleum into the environment from an underground storage 
        tank if such action is necessary, in the judgment of the 
        Administrator (or the State), to protect human health and the 
        environment.

    The corrective action undertaken or required under this paragraph 
    shall be such as may be necessary to protect human health and the 
    environment. The Administrator shall use funds in the Leaking 
    Underground Storage Tank Trust Fund for payment of costs incurred 
    for corrective action under subparagraph (B), enforcement action 
    under subparagraph (A), and cost recovery under paragraph (6) of 
    this subsection. Subject to the priority requirements of paragraph 
    (3), the Administrator (or the State) shall give priority in 
    undertaking such actions under subparagraph (B) to cases where the 
    Administrator (or the State) cannot identify a solvent owner or 
    operator of the tank who will undertake action properly.

                        (2) After regulations

        Following the effective date of regulations under subsection (c) 
    of this section, all actions or orders of the Administrator (or a 
    State pursuant to paragraph (7)) described in paragraph (1) of this 
    subsection shall be in conformity with such regulations. Following 
    such effective date, the Administrator (or the State) may undertake 
    corrective action with respect to any release of petroleum into the 
    environment from an underground storage tank only if such action is 
    necessary, in the judgment of the Administrator (or the State), to 
    protect human health and the environment and one or more of the 
    following situations exists:
            (A) No person can be found, within 90 days or such shorter 
        period as may be necessary to protect human health and the 
        environment, who is--
                (i) an owner or operator of the tank concerned,
                (ii) subject to such corrective action regulations, and
                (iii) capable of carrying out such corrective action 
            properly.

            (B) A situation exists which requires prompt action by the 
        Administrator (or the State) under this paragraph to protect 
        human health and the environment.
            (C) Corrective action costs at a facility exceed the amount 
        of coverage required by the Administrator pursuant to the 
        provisions of subsections (c) and (d)(5) of this section and, 
        considering the class or category of underground storage tank 
        from which the release occurred, expenditures from the Leaking 
        Underground Storage Tank Trust Fund are necessary to assure an 
        effective corrective action.
            (D) The owner or operator of the tank has failed or refused 
        to comply with an order of the Administrator under this 
        subsection or section 6991e of this title or with the order of a 
        State under this subsection to comply with the corrective action 
        regulations.

                 (3) Priority of corrective actions

        The Administrator (or a State pursuant to paragraph (7)) shall 
    give priority in undertaking corrective actions under this 
    subsection, and in issuing orders requiring owners or operators to 
    undertake such actions, to releases of petroleum from underground 
    storage tanks which pose the greatest threat to human health and the 
    environment.

                    (4) Corrective action orders

        The Administrator is authorized to issue orders to the owner or 
    operator of an underground storage tank to carry out subparagraph 
    (A) of paragraph (1) or to carry out regulations issued under 
    subsection (c)(4) of this section. A State acting pursuant to 
    paragraph (7) of this subsection is authorized to carry out 
    subparagraph (A) of paragraph (1) only until the State's program is 
    approved by the Administrator under section 6991c of this title. 
    Such orders shall be issued and enforced in the same manner and 
    subject to the same requirements as orders under section 6991e of 
    this title.

                  (5) Allowable corrective actions

        The corrective actions undertaken by the Administrator (or a 
    State pursuant to paragraph (7)) under paragraph (1) or (2) may 
    include temporary or permanent relocation of residents and 
    alternative household water supplies. In connection with the 
    performance of any corrective action under paragraph (1) or (2), the 
    Administrator may undertake an exposure assessment as defined in 
    paragraph (10) of this subsection or provide for such an assessment 
    in a cooperative agreement with a State pursuant to paragraph (7) of 
    this subsection. The costs of any such assessment may be treated as 
    corrective action for purposes of paragraph (6), relating to cost 
    recovery.

                        (6) Recovery of costs

        (A) In general

            Whenever costs have been incurred by the Administrator, or 
        by a State pursuant to paragraph (7), for undertaking corrective 
        action or enforcement action with respect to the release of 
        petroleum from an underground storage tank, the owner or 
        operator of such tank shall be liable to the Administrator or 
        the State for such costs. The liability under this paragraph 
        shall be construed to be the standard of liability which obtains 
        under section 1321 of title 33.

        (B) Recovery

            In determining the equities for seeking the recovery of 
        costs under subparagraph (A), the Administrator (or a State 
        pursuant to paragraph (7) of this subsection) may consider the 
        amount of financial responsibility required to be maintained 
        under subsections (c) and (d)(5) of this section and the factors 
        considered in establishing such amount under subsection (d)(5) 
        of this section.

        (C) Effect on liability

            (i) No transfers of liability

                No indemnification, hold harmless, or similar agreement 
            or conveyance shall be effective to transfer from the owner 
            or operator of any underground storage tank or from any 
            person who may be liable for a release or threat of release 
            under this subsection, to any other person the liability 
            imposed under this subsection. Nothing in this subsection 
            shall bar any agreement to insure, hold harmless, or 
            indemnify a party to such agreement for any liability under 
            this section.
            (ii) No bar to cause of action

                Nothing in this subsection, including the provisions of 
            clause (i) of this subparagraph, shall bar a cause of action 
            that an owner or operator or any other person subject to 
            liability under this section, or a guarantor, has or would 
            have, by reason of subrogation or otherwise against any 
            person.

        (D) Facility

            For purposes of this paragraph, the term ``facility'' means, 
        with respect to any owner or operator, all underground storage 
        tanks used for the storage of petroleum which are owned or 
        operated by such owner or operator and located on a single 
        parcel of property (or on any contiguous or adjacent property).

                        (7) State authorities

        (A) General

            A State may exercise the authorities in paragraphs (1) and 
        (2) of this subsection, subject to the terms and conditions of 
        paragraphs (3), (5), (9), (10), and (11), and including the 
        authorities of paragraphs (4), (6), and (8) of this subsection 
        if--
                (i) the Administrator determines that the State has the 
            capabilities to carry out effective corrective actions and 
            enforcement activities; and
                (ii) the Administrator enters into a cooperative 
            agreement with the State setting out the actions to be 
            undertaken by the State.

        The Administrator may provide funds from the Leaking Underground 
        Storage Tank Trust Fund for the reasonable costs of the State's 
        actions under the cooperative agreement.

        (B) Cost share

            Following the effective date of the regulations under 
        subsection (c) of this section, the State shall pay 10 per 
        centum of the cost of corrective actions undertaken either by 
        the Administrator or by the State under a cooperative agreement, 
        except that the Administrator may take corrective action at a 
        facility where immediate action is necessary to respond to an 
        imminent and substantial endangerment to human health or the 
        environment if the State fails to pay the cost share.

                  (8) Emergency procurement powers

        Notwithstanding any other provision of law, the Administrator 
    may authorize the use of such emergency procurement powers as he 
    deems necessary.

                 (9) Definition of owner or operator

        (A) In general

            As used in this subchapter, the terms ``owner'' and 
        ``operator'' do not include a person that, without participating 
        in the management of an underground storage tank and otherwise 
        not engaged in petroleum production, refining, or marketing, 
        holds indicia of ownership primarily to protect the person's 
        security interest.

        (B) Security interest holders

            The provisions regarding holders of security interests in 
        subparagraphs (E) through (G) of section 9601(20) of this title 
        and the provisions regarding fiduciaries at section 9607(n) of 
        this title shall apply in determining a person's liability as an 
        owner or operator of an underground storage tank for the 
        purposes of this subchapter.

        (C) Effect on rule

            Nothing in subparagraph (B) shall be construed as modifying 
        or affecting the final rule issued by the Administrator on 
        September 7, 1995 (60 Fed. Reg. 46,692), or as limiting the 
        authority of the Administrator to amend the final rule, in 
        accordance with applicable law. The final rule in effect on 
        September 30, 1996, shall prevail over any inconsistent 
        provision regarding holders of security interests in 
        subparagraphs (E) through (G) of section 9601(20) of this title 
        or any inconsistent provision regarding fiduciaries in section 
        9607(n) of this title. Any amendment to the final rule shall be 
        consistent with the provisions regarding holders of security 
        interests in subparagraphs (E) through (G) of section 9601(20) 
        of this title and the provisions regarding fiduciaries in 
        section 9607(n) of this title. This subparagraph does not 
        preclude judicial review of any amendment of the final rule made 
        after September 30, 1996.

               (10) Definition of exposure assessment

        As used in this subsection, the term ``exposure assessment'' 
    means an assessment to determine the extent of exposure of, or 
    potential for exposure of, individuals to petroleum from a release 
    from an underground storage tank based on such factors as the nature 
    and extent of contamination and the existence of or potential for 
    pathways of human exposure (including ground or surface water 
    contamination, air emissions, and food chain contamination), the 
    size of the community within the likely pathways of exposure, and 
    the comparison of expected human exposure levels to the short-term 
    and long-term health effects associated with identified contaminants 
    and any available recommended exposure or tolerance limits for such 
    contaminants. Such assessment shall not delay corrective action to 
    abate immediate hazards or reduce exposure.

          (11) Facilities without financial responsibility

        At any facility where the owner or operator has failed to 
    maintain evidence of financial responsibility in amounts at least 
    equal to the amounts established by subsection (d)(5)(A) of this 
    section (or a lesser amount if such amount is applicable to such 
    facility as a result of subsection (d)(5)(B) of this section) for 
    whatever reason the Administrator shall expend no monies from the 
    Leaking Underground Storage Tank Trust Fund to clean up releases at 
    such facility pursuant to the provisions of paragraph (1) or (2) of 
    this subsection. At such facilities the Administrator shall use the 
    authorities provided in subparagraph (A) of paragraph (1) and 
    paragraph (4) of this subsection and section 6991e of this title to 
    order corrective action to clean up such releases. States acting 
    pursuant to paragraph (7) of this subsection shall use the 
    authorities provided in subparagraph (A) of paragraph (1) and 
    paragraph (4) of this subsection to order corrective action to clean 
    up such releases. Notwithstanding the provisions of this paragraph, 
    the Administrator may use monies from the fund to take the 
    corrective actions authorized by paragraph (5) of this subsection to 
    protect human health at such facilities and shall seek full recovery 
    of the costs of all such actions pursuant to the provisions of 
    paragraph (6)(A) of this subsection and without consideration of the 
    factors in paragraph (6)(B) of this subsection. Nothing in this 
    paragraph shall prevent the Administrator (or a State pursuant to 
    paragraph (7) of this subsection) from taking corrective action at a 
    facility where there is no solvent owner or operator or where 
    immediate action is necessary to respond to an imminent and 
    substantial endangerment of human health or the environment.

(Pub. L. 89-272, title II, Sec. 9003, as added Pub. L. 98-616, title VI, 
Sec. 601(a), Nov. 8, 1984, 98 Stat. 3279; amended Pub. L. 99-499, title 
II, Sec. 205(c), (d), Oct. 17, 1986, 100 Stat. 1697, 1698; Pub. L. 104-
208, div. A, title II, Sec. 2503, Sept. 30, 1996, 110 Stat. 3009-468.)

                       References in Text

    The Federal Bankruptcy Code, referred to in subsec. (d)(2), probably 
means a reference to Title 11, Bankruptcy.


                               Amendments

    1996--Subsec. (h)(9). Pub. L. 104-208 added par. (9) and struck out 
heading and text of former par. (9). Text read as follows: ``As used in 
this subsection, the term `owner' does not include any person who, 
without participating in the management of an underground storage tank 
and otherwise not engaged in petroleum production, refining, and 
marketing, holds indicia of ownership primarily to protect the owner's 
security interest in the tank.''
    1986--Subsec. (c)(6). Pub. L. 99-499, Sec. 205(c)(1), added par. 
(6).
    Subsec. (d)(1). Pub. L. 99-499, Sec. 205(c)(3), which directed that 
par. (1) be amended by ``striking out `or' after `credit,' and by 
striking out the period at the end thereof and inserting in lieu thereof 
the following: `or any other method satisfactory to the Administrator.' 
'', was executed by striking the period and making insertion at end of 
first sentence, rather than at end of par. (1), as the probable intent 
of Congress, because an earlier version of the amending legislation had 
provided that such amendment be made to first sentence.
    Pub. L. 99-499, Sec. 205(c)(2), redesignated par. (2) as (1) and 
struck out former par. (1) which read as follows: ``As he deems 
necessary or desirable, the Administrator shall promulgate regulations 
containing requirements for maintaining evidence of financial 
responsibility as he deems necessary and desirable for taking corrective 
action and compensating third parties for bodily injury and property 
damage caused by sudden and nonsudden accidental releases arising from 
operating an underground storage tank.''
    Subsec. (d)(2) to (5). Pub. L. 99-499, Sec. 205(c)(2), (4), added 
par. (5) and redesignated pars. (3) to (5) as (2) to (4), respectively. 
Former par. (2) redesignated (1).
    Subsec. (h). Pub. L. 99-499, Sec. 205(d), added subsec. (h).


                    Effective Date of 1996 Amendment

    Section 2505 of div. A of Pub. L. 104-208 provided that: ``The 
amendments made by this subtitle [subtitle E (Secs. 2501-2505) of title 
II of div. A of Pub. L. 104-208, amending this section and sections 9601 
and 9607 of this title] shall be applicable with respect to any claim 
that has not been finally adjudicated as of the date of enactment of 
this Act [Sept. 30, 1996].''


                Assistance Agreements With Indian Tribes

    Pub. L. 105-276, title III, Oct. 21, 1998, 112 Stat. 2497, provided 
in part: ``That hereafter, the Administrator is authorized to enter into 
assistance agreements with Federally recognized Indian tribes on such 
terms and conditions as the Administrator deems appropriate for the same 
purposes as are set forth in section 9003(h)(7) of the Resource 
Conservation and Recovery Act [probably means section 9003(h)(7) of Pub. 
L. 89-272, 42 U.S.C. 6991b(h)(7)].''


                      Pollution Liability Insurance

    Section 205(h) of Pub. L. 99-499 provided that:
    ``(1) Study.--The Comptroller General shall conduct a study of the 
availability of pollution liability insurance, leak insurance, and 
contamination insurance for owners and operators of petroleum storage 
and distribution facilities. The study shall assess the current and 
projected extent to which private insurance can contribute to the 
financial responsibility of owners and operators of underground storage 
tanks and the ability of owners and operators of underground storage 
tanks to maintain financial responsibility through other methods. The 
study shall consider the experience of owners and operators of marine 
vessels in getting insurance for their liabilities under the Federal 
Water Pollution Control Act [33 U.S.C. 1251 et seq.] and the operation 
of the Water Quality Insurance Syndicate.
    ``(2) Report.--The Comptroller General shall report the findings 
under this subsection to the Congress within 15 months after the 
enactment of this subsection [Oct. 17, 1986]. Such report shall include 
recommendations for legislative or administrative changes that will 
enable owners and operators of underground storage tanks to maintain 
financial responsibility sufficient to provide all clean-up costs and 
damages that may result from reasonably foreseeable releases and 
events.''

                  Section Referred to in Other Sections

    This section is referred to in sections 6924, 6991a, 6991c, 6991d, 
6991e of this title; title 26 section 9508.
