
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document affected by Public Law 107-118 Section 102(a)]
[Document affected by Public Law 107-118 Section 221]
[Document affected by Public Law 107-118 Section 222(b)]
[Document affected by Public Law 107-118 Section 103]
[CITE: 42USC9607]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
  CHAPTER 103--COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND 
                                LIABILITY
 
  SUBCHAPTER I--HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION
 
Sec. 9607. Liability


(a) Covered persons; scope; recoverable costs and damages; interest 
        rate; ``comparable maturity'' date

    Notwithstanding any other provision or rule of law, and subject only 
to the defenses set forth in subsection (b) of this section--
        (1) the owner and operator of a vessel or a facility,
        (2) any person who at the time of disposal of any hazardous 
    substance owned or operated any facility at which such hazardous 
    substances were disposed of,
        (3) any person who by contract, agreement, or otherwise arranged 
    for disposal or treatment, or arranged with a transporter for 
    transport for disposal or treatment, of hazardous substances owned 
    or possessed by such person, by any other party or entity, at any 
    facility or incineration vessel owned or operated by another party 
    or entity and containing such hazardous substances, and
        (4) any person who accepts or accepted any hazardous substances 
    for transport to disposal or treatment facilities, incineration 
    vessels or sites selected by such person, from which there is a 
    release, or a threatened release which causes the incurrence of 
    response costs, of a hazardous substance, shall be liable for--
            (A) all costs of removal or remedial action incurred by the 
        United States Government or a State or an Indian tribe not 
        inconsistent with the national contingency plan;
            (B) any other necessary costs of response incurred by any 
        other person consistent with the national contingency plan;
            (C) damages for injury to, destruction of, or loss of 
        natural resources, including the reasonable costs of assessing 
        such injury, destruction, or loss resulting from such a release; 
        and
            (D) the costs of any health assessment or health effects 
        study carried out under section 9604(i) of this title.

The amounts recoverable in an action under this section shall include 
interest on the amounts recoverable under subparagraphs (A) through (D). 
Such interest shall accrue from the later of (i) the date payment of a 
specified amount is demanded in writing, or (ii) the date of the 
expenditure concerned. The rate of interest on the outstanding unpaid 
balance of the amounts recoverable under this section shall be the same 
rate as is specified for interest on investments of the Hazardous 
Substance Superfund established under subchapter A of chapter 98 of 
title 26. For purposes of applying such amendments to interest under 
this subsection, the term ``comparable maturity'' shall be determined 
with reference to the date on which interest accruing under this 
subsection commences.

(b) Defenses

    There shall be no liability under subsection (a) of this section for 
a person otherwise liable who can establish by a preponderance of the 
evidence that the release or threat of release of a hazardous substance 
and the damages resulting therefrom were caused solely by--
        (1) an act of God;
        (2) an act of war;
        (3) an act or omission of a third party other than an employee 
    or agent of the defendant, or than one whose act or omission occurs 
    in connection with a contractual relationship, existing directly or 
    indirectly, with the defendant (except where the sole contractual 
    arrangement arises from a published tariff and acceptance for 
    carriage by a common carrier by rail), if the defendant establishes 
    by a preponderance of the evidence that (a) he exercised due care 
    with respect to the hazardous substance concerned, taking into 
    consideration the characteristics of such hazardous substance, in 
    light of all relevant facts and circumstances, and (b) he took 
    precautions against foreseeable acts or omissions of any such third 
    party and the consequences that could foreseeably result from such 
    acts or omissions; or
        (4) any combination of the foregoing paragraphs.

(c) Determination of amounts

    (1) Except as provided in paragraph (2) of this subsection, the 
liability under this section of an owner or operator or other 
responsible person for each release of a hazardous substance or incident 
involving release of a hazardous substance shall not exceed--
        (A) for any vessel, other than an incineration vessel, which 
    carries any hazardous substance as cargo or residue, $300 per gross 
    ton, or $5,000,000, whichever is greater;
        (B) for any other vessel, other than an incineration vessel, 
    $300 per gross ton, or $500,000, whichever is greater;
        (C) for any motor vehicle, aircraft, hazardous liquid pipeline 
    facility (as defined in section 60101(a) of title 49), or rolling 
    stock, $50,000,000 or such lesser amount as the President shall 
    establish by regulation, but in no event less than $5,000,000 (or, 
    for releases of hazardous substances as defined in section 
    9601(14)(A) of this title into the navigable waters, $8,000,000). 
    Such regulations shall take into account the size, type, location, 
    storage, and handling capacity and other matters relating to the 
    likelihood of release in each such class and to the economic impact 
    of such limits on each such class; or
        (D) for any incineration vessel or any facility other than those 
    specified in subparagraph (C) of this paragraph, the total of all 
    costs of response plus $50,000,000 for any damages under this 
    subchapter.

    (2) Notwithstanding the limitations in paragraph (1) of this 
subsection, the liability of an owner or operator or other responsible 
person under this section shall be the full and total costs of response 
and damages, if (A)(i) the release or threat of release of a hazardous 
substance was the result of willful misconduct or willful negligence 
within the privity or knowledge of such person, or (ii) the primary 
cause of the release was a violation (within the privity or knowledge of 
such person) of applicable safety, construction, or operating standards 
or regulations; or (B) such person fails or refuses to provide all 
reasonable cooperation and assistance requested by a responsible public 
official in connection with response activities under the national 
contingency plan with respect to regulated carriers subject to the 
provisions of title 49 or vessels subject to the provisions of title 33, 
46, or 46 Appendix, subparagraph (A)(ii) of this paragraph shall be 
deemed to refer to Federal standards or regulations.
    (3) If any person who is liable for a release or threat of release 
of a hazardous substance fails without sufficient cause to properly 
provide removal or remedial action upon order of the President pursuant 
to section 9604 or 9606 of this title, such person may be liable to the 
United States for punitive damages in an amount at least equal to, and 
not more than three times, the amount of any costs incurred by the Fund 
as a result of such failure to take proper action. The President is 
authorized to commence a civil action against any such person to recover 
the punitive damages, which shall be in addition to any costs recovered 
from such person pursuant to section 9612(c) of this title. Any moneys 
received by the United States pursuant to this subsection shall be 
deposited in the Fund.

(d) Rendering care or advice

                           (1) In general

        Except as provided in paragraph (2), no person shall be liable 
    under this subchapter for costs or damages as a result of actions 
    taken or omitted in the course of rendering care, assistance, or 
    advice in accordance with the National Contingency Plan (``NCP'') or 
    at the direction of an onscene coordinator appointed under such 
    plan, with respect to an incident creating a danger to public health 
    or welfare or the environment as a result of any releases of a 
    hazardous substance or the threat thereof. This paragraph shall not 
    preclude liability for costs or damages as the result of negligence 
    on the part of such person.

                   (2) State and local governments

        No State or local government shall be liable under this 
    subchapter for costs or damages as a result of actions taken in 
    response to an emergency created by the release or threatened 
    release of a hazardous substance generated by or from a facility 
    owned by another person. This paragraph shall not preclude liability 
    for costs or damages as a result of gross negligence or intentional 
    misconduct by the State or local government. For the purpose of the 
    preceding sentence, reckless, willful, or wanton misconduct shall 
    constitute gross negligence.

                        (3) Savings provision

        This subsection shall not alter the liability of any person 
    covered by the provisions of paragraph (1), (2), (3), or (4) of 
    subsection (a) of this section with respect to the release or 
    threatened release concerned.

(e) Indemnification, hold harmless, etc., agreements or conveyances; 
        subrogation rights

    (1) No indemnification, hold harmless, or similar agreement or 
conveyance shall be effective to transfer from the owner or operator of 
any vessel or facility or from any person who may be liable for a 
release or threat of release under this section, to any other person the 
liability imposed under this section. 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.
    (2) Nothing in this subchapter, including the provisions of 
paragraph (1) of this subsection, 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.

(f) Natural resources liability; designation of public trustees of 
        natural resources

                   (1) Natural resources liability

        In the case of an injury to, destruction of, or loss of natural 
    resources under subparagraph (C) of subsection (a) of this section 
    liability shall be to the United States Government and to any State 
    for natural resources within the State or belonging to, managed by, 
    controlled by, or appertaining to such State and to any Indian tribe 
    for natural resources belonging to, managed by, controlled by, or 
    appertaining to such tribe, or held in trust for the benefit of such 
    tribe, or belonging to a member of such tribe if such resources are 
    subject to a trust restriction on alienation: Provided, however, 
    That no liability to the United States or State or Indian tribe 
    shall be imposed under subparagraph (C) of subsection (a) of this 
    section, where the party sought to be charged has demonstrated that 
    the damages to natural resources complained of were specifically 
    identified as an irreversible and irretrievable commitment of 
    natural resources in an environmental impact statement, or other 
    comparable environment analysis, and the decision to grant a permit 
    or license authorizes such commitment of natural resources, and the 
    facility or project was otherwise operating within the terms of its 
    permit or license, so long as, in the case of damages to an Indian 
    tribe occurring pursuant to a Federal permit or license, the 
    issuance of that permit or license was not inconsistent with the 
    fiduciary duty of the United States with respect to such Indian 
    tribe. The President, or the authorized representative of any State, 
    shall act on behalf of the public as trustee of such natural 
    resources to recover for such damages. Sums recovered by the United 
    States Government as trustee under this subsection shall be retained 
    by the trustee, without further appropriation, for use only to 
    restore, replace, or acquire the equivalent of such natural 
    resources. Sums recovered by a State as trustee under this 
    subsection shall be available for use only to restore, replace, or 
    acquire the equivalent of such natural resources by the State. The 
    measure of damages in any action under subparagraph (C) of 
    subsection (a) of this section shall not be limited by the sums 
    which can be used to restore or replace such resources. There shall 
    be no double recovery under this chapter for natural resource 
    damages, including the costs of damage assessment or restoration, 
    rehabilitation, or acquisition for the same release and natural 
    resource. There shall be no recovery under the authority of 
    subparagraph (C) of subsection (a) of this section where such 
    damages and the release of a hazardous substance from which such 
    damages resulted have occurred wholly before December 11, 1980.

           (2) Designation of Federal and State officials

        (A) Federal

            The President shall designate in the National Contingency 
        Plan published under section 9605 of this title the Federal 
        officials who shall act on behalf of the public as trustees for 
        natural resources under this chapter and section 1321 of title 
        33. Such officials shall assess damages for injury to, 
        destruction of, or loss of natural resources for purposes of 
        this chapter and such section 1321 of title 33 for those 
        resources under their trusteeship and may, upon request of and 
        reimbursement from a State and at the Federal officials' 
        discretion, assess damages for those natural resources under the 
        State's trusteeship.

        (B) State

            The Governor of each State shall designate State officials 
        who may act on behalf of the public as trustees for natural 
        resources under this chapter and section 1321 of title 33 and 
        shall notify the President of such designations. Such State 
        officials shall assess damages to natural resources for the 
        purposes of this chapter and such section 1321 of title 33 for 
        those natural resources under their trusteeship.

        (C) Rebuttable presumption

            Any determination or assessment of damages to natural 
        resources for the purposes of this chapter and section 1321 of 
        title 33 made by a Federal or State trustee in accordance with 
        the regulations promulgated under section 9651(c) of this title 
        shall have the force and effect of a rebuttable presumption on 
        behalf of the trustee in any administrative or judicial 
        proceeding under this chapter or section 1321 of title 33.

(g) Federal agencies

    For provisions relating to Federal agencies, see section 9620 of 
this title.

(h) Owner or operator of vessel

    The owner or operator of a vessel shall be liable in accordance with 
this section, under maritime tort law, and as provided under section 
9614 of this title notwithstanding any provision of the Act of March 3, 
1851 (46 U.S.C. 183ff) [46 App. U.S.C. 182, 183, 184-188] or the absence 
of any physical damage to the proprietary interest of the claimant.

(i) Application of a registered pesticide product

    No person (including the United States or any State or Indian tribe) 
may recover under the authority of this section for any response costs 
or damages resulting from the application of a pesticide product 
registered under the Federal Insecticide, Fungicide, and Rodenticide Act 
[7 U.S.C. 136 et seq.]. Nothing in this paragraph shall affect or modify 
in any way the obligations or liability of any person under any other 
provision of State or Federal law, including common law, for damages, 
injury, or loss resulting from a release of any hazardous substance or 
for removal or remedial action or the costs of removal or remedial 
action of such hazardous substance.

(j) Obligations or liability pursuant to federally permitted release

    Recovery by any person (including the United States or any State or 
Indian tribe) for response costs or damages resulting from a federally 
permitted release shall be pursuant to existing law in lieu of this 
section. Nothing in this paragraph shall affect or modify in any way the 
obligations or liability of any person under any other provision of 
State or Federal law, including common law, for damages, injury, or loss 
resulting from a release of any hazardous substance or for removal or 
remedial action or the costs of removal or remedial action of such 
hazardous substance. In addition, costs of response incurred by the 
Federal Government in connection with a discharge specified in section 
9601(10)(B) or (C) of this title shall be recoverable in an action 
brought under section 1319(b) of title 33.

(k) Transfer to, and assumption by, Post-Closure Liability Fund of 
        liability of owner or operator of hazardous waste disposal 
        facility in receipt of permit under applicable solid waste 
        disposal law; time, criteria applicable, procedures, etc.; 
        monitoring costs; reports

    (1) The liability established by this section or any other law for 
the owner or operator of a hazardous waste disposal facility which has 
received a permit under subtitle C of the Solid Waste Disposal Act [42 
U.S.C. 6921 et seq.], shall be transferred to and assumed by the Post-
closure Liability Fund established by section 9641 \1\ of this title 
when--
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    \1\See References in Text note below.
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        (A) such facility and the owner and operator thereof has 
    complied with the requirements of subtitle C of the Solid Waste 
    Disposal Act [42 U.S.C. 6921 et seq.] and regulations issued 
    thereunder, which may affect the performance of such facility after 
    closure; and
        (B) such facility has been closed in accordance with such 
    regulations and the conditions of such permit, and such facility and 
    the surrounding area have been monitored as required by such 
    regulations and permit conditions for a period not to exceed five 
    years after closure to demonstrate that there is no substantial 
    likelihood that any migration offsite or release from confinement of 
    any hazardous substance or other risk to public health or welfare 
    will occur.

    (2) Such transfer of liability shall be effective ninety days after 
the owner or operator of such facility notifies the Administrator of the 
Environmental Protection Agency (and the State where it has an 
authorized program under section 3006(b) of the Solid Waste Disposal Act 
[42 U.S.C. 6926(b)]) that the conditions imposed by this subsection have 
been satisfied. If within such ninety-day period the Administrator of 
the Environmental Protection Agency or such State determines that any 
such facility has not complied with all the conditions imposed by this 
subsection or that insufficient information has been provided to 
demonstrate such compliance, the Administrator or such State shall so 
notify the owner and operator of such facility and the administrator of 
the Fund established by section 9641 \1\ of this title, and the owner 
and operator of such facility shall continue to be liable with respect 
to such facility under this section and other law until such time as the 
Administrator and such State determines that such facility has complied 
with all conditions imposed by this subsection. A determination by the 
Administrator or such State that a facility has not complied with all 
conditions imposed by this subsection or that insufficient information 
has been supplied to demonstrate compliance, shall be a final 
administrative action for purposes of judicial review. A request for 
additional information shall state in specific terms the data required.
    (3) In addition to the assumption of liability of owners and 
operators under paragraph (1) of this subsection, the Post-closure 
Liability Fund established by section 9641 \1\ of this title may be used 
to pay costs of monitoring and care and maintenance of a site incurred 
by other persons after the period of monitoring required by regulations 
under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et 
seq.] for hazardous waste disposal facilities meeting the conditions of 
paragraph (1) of this subsection.
    (4)(A) Not later than one year after December 11, 1980, the 
Secretary of the Treasury shall conduct a study and shall submit a 
report thereon to the Congress on the feasibility of establishing or 
qualifying an optional system of private insurance for postclosure 
financial responsibility for hazardous waste disposal facilities to 
which this subsection applies. Such study shall include a specification 
of adequate and realistic minimum standards to assure that any such 
privately placed insurance will carry out the purposes of this 
subsection in a reliable, enforceable, and practical manner. Such a 
study shall include an examination of the public and private incentives, 
programs, and actions necessary to make privately placed insurance a 
practical and effective option to the financing system for the Post-
closure Liability Fund provided in subchapter II \1\ of this chapter.
    (B) Not later than eighteen months after December 11, 1980, and 
after a public hearing, the President shall by rule determine whether or 
not it is feasible to establish or qualify an optional system of private 
insurance for postclosure financial responsibility for hazardous waste 
disposal facilities to which this subsection applies. If the President 
determines the establishment or qualification of such a system would be 
infeasible, he shall promptly publish an explanation of the reasons for 
such a determination. If the President determines the establishment or 
qualification of such a system would be feasible, he shall promptly 
publish notice of such determination. Not later than six months after an 
affirmative determination under the preceding sentence and after a 
public hearing, the President shall by rule promulgate adequate and 
realistic minimum standards which must be met by any such privately 
placed insurance, taking into account the purposes of this chapter and 
this subsection. Such rules shall also specify reasonably expeditious 
procedures by which privately placed insurance plans can qualify as 
meeting such minimum standards.
    (C) In the event any privately placed insurance plan qualifies under 
subparagraph (B), any person enrolled in, and complying with the terms 
of, such plan shall be excluded from the provisions of paragraphs (1), 
(2), and (3) of this subsection and exempt from the requirements to pay 
any tax or fee to the Post-closure Liability Fund under subchapter II 
\1\ of this chapter.
    (D) The President may issue such rules and take such other actions 
as are necessary to effectuate the purposes of this paragraph.
    (5) Suspension of liability transfer.--Notwithstanding paragraphs 
(1), (2), (3), and (4) of this subsection and subsection (j) of section 
9611 of this title, no liability shall be transferred to or assumed by 
the Post-Closure Liability Trust Fund established by section 9641 \1\ of 
this title prior to completion of the study required under paragraph (6) 
of this subsection, transmission of a report of such study to both 
Houses of Congress, and authorization of such a transfer or assumption 
by Act of Congress following receipt of such study and report.
    (6) Study of options for post-closure program.--
        (A) Study.--The Comptroller General shall conduct a study of 
    options for a program for the management of the liabilities 
    associated with hazardous waste treatment, storage, and disposal 
    sites after their closure which complements the policies set forth 
    in the Hazardous and Solid Waste Amendments of 1984 and assures the 
    protection of human health and the environment.
        (B) Program elements.--The program referred to in subparagraph 
    (A) shall be designed to assure each of the following:
            (i) Incentives are created and maintained for the safe 
        management and disposal of hazardous wastes so as to assure 
        protection of human health and the environment.
            (ii) Members of the public will have reasonable confidence 
        that hazardous wastes will be managed and disposed of safely and 
        that resources will be available to address any problems that 
        may arise and to cover costs of long-term monitoring, care, and 
        maintenance of such sites.
            (iii) Persons who are or seek to become owners and operators 
        of hazardous waste disposal facilities will be able to manage 
        their potential future liabilities and to attract the investment 
        capital necessary to build, operate, and close such facilities 
        in a manner which assures protection of human health and the 
        environment.

        (C) Assessments.--The study under this paragraph shall include 
    assessments of treatment, storage, and disposal facilities which 
    have been or are likely to be issued a permit under section 3005 of 
    the Solid Waste Disposal Act [42 U.S.C. 6925] and the likelihood of 
    future insolvency on the part of owners and operators of such 
    facilities. Separate assessments shall be made for different classes 
    of facilities and for different classes of land disposal facilities 
    and shall include but not be limited to--
            (i) the current and future financial capabilities of 
        facility owners and operators;
            (ii) the current and future costs associated with 
        facilities, including the costs of routine monitoring and 
        maintenance, compliance monitoring, corrective action, natural 
        resource damages, and liability for damages to third parties; 
        and
            (iii) the availability of mechanisms by which owners and 
        operators of such facilities can assure that current and future 
        costs, including post-closure costs, will be financed.

        (D) Procedures.--In carrying out the responsibilities of this 
    paragraph, the Comptroller General shall consult with the 
    Administrator, the Secretary of Commerce, the Secretary of the 
    Treasury, and the heads of other appropriate Federal agencies.
        (E) Consideration of options.--In conducting the study under 
    this paragraph, the Comptroller General shall consider various 
    mechanisms and combinations of mechanisms to complement the policies 
    set forth in the Hazardous and Solid Waste Amendments of 1984 to 
    serve the purposes set forth in subparagraph (B) and to assure that 
    the current and future costs associated with hazardous waste 
    facilities, including post-closure costs, will be adequately 
    financed and, to the greatest extent possible, borne by the owners 
    and operators of such facilities. Mechanisms to be considered 
    include, but are not limited to--
            (i) revisions to closure, post-closure, and financial 
        responsibility requirements under subtitles C and I of the Solid 
        Waste Disposal Act [42 U.S.C. 6921 et seq., 6991 et seq.];
            (ii) voluntary risk pooling by owners and operators;
            (iii) legislation to require risk pooling by owners and 
        operators;
            (iv) modification of the Post-Closure Liability Trust Fund 
        previously established by section 9641 \2\ of this title, and 
        the conditions for transfer of liability under this subsection, 
        including limiting the transfer of some or all liability under 
        this subsection only in the case of insolvency of owners and 
        operators;
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            (v) private insurance;
            (vi) insurance provided by the Federal Government;
            (vii) coinsurance, reinsurance, or pooled-risk insurance, 
        whether provided by the private sector or provided or assisted 
        by the Federal Government; and
            (viii) creation of a new program to be administered by a new 
        or existing Federal agency or by a federally chartered 
        corporation.

        (F) Recommendations.--The Comptroller General shall consider 
    options for funding any program under this section and shall, to the 
    extent necessary, make recommendations to the appropriate committees 
    of Congress for additional authority to implement such program.

(l) Federal lien

                           (1) In general

        All costs and damages for which a person is liable to the United 
    States under subsection (a) of this section (other than the owner or 
    operator of a vessel under paragraph (1) of subsection (a) of this 
    section) shall constitute a lien in favor of the United States upon 
    all real property and rights to such property which--
            (A) belong to such person; and
            (B) are subject to or affected by a removal or remedial 
        action.

                            (2) Duration

        The lien imposed by this subsection shall arise at the later of 
    the following:
            (A) The time costs are first incurred by the United States 
        with respect to a response action under this chapter.
            (B) The time that the person referred to in paragraph (1) is 
        provided (by certified or registered mail) written notice of 
        potential liability.

    Such lien shall continue until the liability for the costs (or a 
    judgment against the person arising out of such liability) is 
    satisfied or becomes unenforceable through operation of the statute 
    of limitations provided in section 9613 of this title.

                       (3) Notice and validity

        The lien imposed by this subsection shall be subject to the 
    rights of any purchaser, holder of a security interest, or judgment 
    lien creditor whose interest is perfected under applicable State law 
    before notice of the lien has been filed in the appropriate office 
    within the State (or county or other governmental subdivision), as 
    designated by State law, in which the real property subject to the 
    lien is located. Any such purchaser, holder of a security interest, 
    or judgment lien creditor shall be afforded the same protections 
    against the lien imposed by this subsection as are afforded under 
    State law against a judgment lien which arises out of an unsecured 
    obligation and which arises as of the time of the filing of the 
    notice of the lien imposed by this subsection. If the State has not 
    by law designated one office for the receipt of such notices of 
    liens, the notice shall be filed in the office of the clerk of the 
    United States district court for the district in which the real 
    property is located. For purposes of this subsection, the terms 
    ``purchaser'' and ``security interest'' shall have the definitions 
    provided under section 6323(h) of title 26.

                          (4) Action in rem

        The costs constituting the lien may be recovered in an action in 
    rem in the United States district court for the district in which 
    the removal or remedial action is occurring or has occurred. Nothing 
    in this subsection shall affect the right of the United States to 
    bring an action against any person to recover all costs and damages 
    for which such person is liable under subsection (a) of this 
    section.

(m) Maritime lien

    All costs and damages for which the owner or operator of a vessel is 
liable under subsection (a)(1) of this section with respect to a release 
or threatened release from such vessel shall constitute a maritime lien 
in favor of the United States on such vessel. Such costs may be 
recovered in an action in rem in the district court of the United States 
for the district in which the vessel may be found. Nothing in this 
subsection shall affect the right of the United States to bring an 
action against the owner or operator of such vessel in any court of 
competent jurisdiction to recover such costs.

(n) Liability of fiduciaries

                           (1) In general

        The liability of a fiduciary under any provision of this chapter 
    for the release or threatened release of a hazardous substance at, 
    from, or in connection with a vessel or facility held in a fiduciary 
    capacity shall not exceed the assets held in the fiduciary capacity.

                            (2) Exclusion

        Paragraph (1) does not apply to the extent that a person is 
    liable under this chapter independently of the person's ownership of 
    a vessel or facility as a fiduciary or actions taken in a fiduciary 
    capacity.

                           (3) Limitation

        Paragraphs (1) and (4) do not limit the liability pertaining to 
    a release or threatened release of a hazardous substance if 
    negligence of a fiduciary causes or contributes to the release or 
    threatened release.

                           (4) Safe harbor

        A fiduciary shall not be liable in its personal capacity under 
    this chapter for--
            (A) undertaking or directing another person to undertake a 
        response action under subsection (d)(1) of this section or under 
        the direction of an on scene coordinator designated under the 
        National Contingency Plan;
            (B) undertaking or directing another person to undertake any 
        other lawful means of addressing a hazardous substance in 
        connection with the vessel or facility;
            (C) terminating the fiduciary relationship;
            (D) including in the terms of the fiduciary agreement a 
        covenant, warranty, or other term or condition that relates to 
        compliance with an environmental law, or monitoring, modifying 
        or enforcing the term or condition;
            (E) monitoring or undertaking 1 or more inspections of the 
        vessel or facility;
            (F) providing financial or other advice or counseling to 
        other parties to the fiduciary relationship, including the 
        settlor or beneficiary;
            (G) restructuring, renegotiating, or otherwise altering the 
        terms and conditions of the fiduciary relationship;
            (H) administering, as a fiduciary, a vessel or facility that 
        was contaminated before the fiduciary relationship began; or
            (I) declining to take any of the actions described in 
        subparagraphs (B) through (H).

                           (5) Definitions

        As used in this chapter:

        (A) Fiduciary

            The term ``fiduciary''--
                (i) means a person acting for the benefit of another 
            party as a bona fide--
                    (I) trustee;
                    (II) executor;
                    (III) administrator;
                    (IV) custodian;
                    (V) guardian of estates or guardian ad litem;
                    (VI) receiver;
                    (VII) conservator;
                    (VIII) committee of estates of incapacitated 
                persons;
                    (IX) personal representative;
                    (X) trustee (including a successor to a trustee) 
                under an indenture agreement, trust agreement, lease, or 
                similar financing agreement, for debt securities, 
                certificates of interest or certificates of 
                participation in debt securities, or other forms of 
                indebtedness as to which the trustee is not, in the 
                capacity of trustee, the lender; or
                    (XI) representative in any other capacity that the 
                Administrator, after providing public notice, determines 
                to be similar to the capacities described in subclauses 
                (I) through (X); and

                (ii) does not include--
                    (I) a person that is acting as a fiduciary with 
                respect to a trust or other fiduciary estate that was 
                organized for the primary purpose of, or is engaged in, 
                actively carrying on a trade or business for profit, 
                unless the trust or other fiduciary estate was created 
                as part of, or to facilitate, 1 or more estate plans or 
                because of the incapacity of a natural person; or
                    (II) a person that acquires ownership or control of 
                a vessel or facility with the objective purpose of 
                avoiding liability of the person or of any other person.

        (B) Fiduciary capacity

            The term ``fiduciary capacity'' means the capacity of a 
        person in holding title to a vessel or facility, or otherwise 
        having control of or an interest in the vessel or facility, 
        pursuant to the exercise of the responsibilities of the person 
        as a fiduciary.

                         (6) Savings clause

        Nothing in this subsection--
            (A) affects the rights or immunities or other defenses that 
        are available under this chapter or other law that is applicable 
        to a person subject to this subsection; or
            (B) creates any liability for a person or a private right of 
        action against a fiduciary or any other person.

                  (7) No effect on certain persons

        Nothing in this subsection applies to a person if the person--
            (A)(i) acts in a capacity other than that of a fiduciary or 
        in a beneficiary capacity; and
            (ii) in that capacity, directly or indirectly benefits from 
        a trust or fiduciary relationship; or
            (B)(i) is a beneficiary and a fiduciary with respect to the 
        same fiduciary estate; and
            (ii) as a fiduciary, receives benefits that exceed customary 
        or reasonable compensation, and incidental benefits, permitted 
        under other applicable law.

                           (8) Limitation

        This subsection does not preclude a claim under this chapter 
    against--
            (A) the assets of the estate or trust administered by the 
        fiduciary; or
            (B) a nonemployee agent or independent contractor retained 
        by a fiduciary.

(Pub. L. 96-510, title I, Sec. 107, Dec. 11, 1980, 94 Stat. 2781; Pub. 
L. 99-499, title I, Secs. 107(a)-(d)(2), (e), (f), 127(b), (e), title 
II, Secs. 201, 207(c), Oct. 17, 1986, 100 Stat. 1628-1630, 1692, 1693, 
1705; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 
103-429, Sec. 7(e)(2), Oct. 31, 1994, 108 Stat. 4390; Pub. L. 104-208, 
div. A, title II, Sec. 2502(a), Sept. 30, 1996, 110 Stat. 3009-462; Pub. 
L. 104-287, Sec. 6(j)(2), Oct. 11, 1996, 110 Stat. 3400.)

                       References in Text

    Such amendments, referred to in the last sentence of subsec. (a), 
probably means the amendments made by Pub. L. 99-499, Oct. 17, 1986, 100 
Stat. 1613, known as the ``Superfund Amendments and Reauthorization Act 
of 1986''. For complete classification of this Act to the Code, see 
Short Title of 1986 Amendment note set out under section 9601 of this 
title and Tables.
    Act of March 3, 1851 (46 U.S.C. 183ff), referred to in subsec. (h), 
is act Mar. 3, 1851, ch. 43, 9 Stat. 635, which was incorporated into 
the Revised Statutes as R.S. Secs. 4282 to 4287 and 4289, and is 
classified to sections 182, 183, and 184 to 188 of Title 46, Appendix, 
Shipping.
    The Federal Insecticide, Fungicide, and Rodenticide Act, referred to 
in subsec. (i), is act June 25, 1947, ch. 125, as amended generally by 
Pub. L. 92-516, Oct. 21, 1972, 86 Stat. 973, which is classified 
generally to subchapter II (Sec. 136 et seq.) of chapter 6 of Title 7, 
Agriculture. For complete classification of this Act to the Code, see 
Short Title note set out under section 136 of Title 7 and Tables.
    The Solid Waste Disposal Act, referred to in subsec. (k)(1), (3), 
(6)(E)(i), is title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, 
as amended generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 
2795. Subtitles C and I of the Solid Waste Disposal Act are classified 
generally to subchapters III (Sec. 6921 et seq.) and IX (Sec. 6991 et 
seq.), respectively, of chapter 82 of this title. For complete 
classification of this Act to the Code, see Short Title note set out 
under section 6901 of this title and Tables.
    Section 9641 of this title, referred to in subsec. (k), was repealed 
by Pub. L. 99-499, title V, Sec. 514(b), Oct. 17, 1986, 100 Stat. 1767.
    Subchapter II of this chapter, referred to in subsec. (k)(4)(A) and 
(C), was in the original ``title II of this Act'', meaning title II of 
Pub. L. 96-510, Dec. 11, 1980, 94 Stat. 2796, known as the Hazardous 
Substance Response Revenue Act of 1980, which enacted subchapter II of 
this chapter and sections 4611, 4612, 4661, 4662, 4681, and 4682 of 
Title 26, Internal Revenue Code. Sections 221 to 223 and 232 of Pub. L. 
96-510, which were classified to sections 9631 to 9633 and 9641 of this 
title, comprising subchapter II of this chapter, were repealed by Pub. 
L. 99-499, title V, Secs. 514(b), 517(c)(1), Oct. 17, 1986, 100 Stat. 
1767, 1774. For complete classification of title II to the Code, see 
Short Title of 1980 Amendment note set out under section 1 of Title 26 
and Tables.
    The Hazardous and Solid Waste Amendments of 1984, referred to in 
subsec. (k)(6)(A), (E), is Pub. L. 98-616, Nov. 8, 1984, 98 Stat. 3221. 
For complete classification of this Act to the Code, see Short Title of 
1984 Amendment note set out under section 6901 of this title and Tables.


                               Amendments

    1996--Subsec. (c)(1)(C). Pub. L. 104-287 substituted ``section 
60101(a) of title 49'' for ``the Hazardous Liquid Pipeline Safety Act of 
1979''.
    Subsec. (n). Pub. L. 104-208 added subsec. (n).
    1994--Subsec. (c)(1)(C). Pub. L. 103-429 substituted ``hazardous 
liquid pipeline facility'' for ``pipeline''.
    1986--Subsec. (a). Pub. L. 99-514, in penultimate sentence, 
substituted ``Internal Revenue Code of 1986'' for ``Internal Revenue 
Code of 1954'', which for purposes of codification was translated as 
``title 26'' thus requiring no change in text.
    Pub. L. 99-499, Sec. 107(b), inserted concluding provisions relating 
to accrual and rate of interest on amounts recoverable under this 
section.
    Subsec. (a)(1). Pub. L. 99-499, Sec. 107(a), struck out ``(otherwise 
subject to the jurisdiction of the United States)'' after ``vessel''.
    Subsec. (a)(3). Pub. L. 99-499, Sec. 127(b)(1), inserted ``or 
incineration vessel'' after ``facility''.
    Subsec. (a)(4). Pub. L. 99-499, Secs. 107(b), 127(b)(2), 207(c)(1), 
in introductory provisions, inserted ``, incineration vessels'' after 
``vessels'', in subpar. (A), inserted ``or an Indian tribe'' after 
``State'', and added subpar. (D).
    Subsec. (c)(1)(A). Pub. L. 99-499, Sec. 127(b)(3), inserted ``, 
other than an incineration vessel,'' after ``vessel''.
    Subsec. (c)(1)(B). Pub. L. 99-499, Sec. 127(b)(4), inserted ``other 
than an incineration vessel,'' after ``other vessel,''.
    Subsec. (c)(1)(D). Pub. L. 99-499, Sec. 127(b)(5), inserted ``any 
incineration vessel or'' before ``any facility''.
    Subsec. (d). Pub. L. 99-499, Sec. 107(c), amended subsec. (d) 
generally. Prior to amendment, subsec. (d) read as follows: ``No person 
shall be liable under this subchapter for damages as a result of actions 
taken or omitted in the course of rendering care, assistance, or advice 
in accordance with the national contingency plan or at the direction of 
an onscene coordinator appointed under such plan, with respect to an 
incident creating a danger to public health or welfare or the 
environment as a result of any release of a hazardous substance or the 
threat thereof. This subsection shall not preclude liability for damages 
as the result of gross negligence or intentional misconduct on the part 
of such person. For the purposes of the preceding sentence, reckless, 
willful, or wanton misconduct shall constitute gross negligence.''
    Subsec. (f)(1). Pub. L. 99-499, Sec. 107(d)(1), designated existing 
provisions as par. (1) and added heading.
    Pub. L. 99-499, Sec. 207(c)(2)(A), inserted ``and to any Indian 
tribe for natural resources belonging to, managed by, controlled by, or 
appertaining to such tribe, or held in trust for the benefit of such 
tribe, or belonging to a member of such tribe if such resources are 
subject to a trust restriction on alienation'' after third reference to 
``State''.
    Pub. L. 99-499, Sec. 207(c)(2)(B), inserted ``or Indian tribe'' 
after fourth reference to ``State''.
    Pub. L. 99-499, Sec. 207(c)(2)(C), inserted in first sentence ``, so 
long as, in the case of damages to an Indian tribe occurring pursuant to 
a Federal permit or license, the issuance of that permit or license was 
not inconsistent with the fiduciary duty of the United States with 
respect to such Indian tribe''.
    Pub. L. 99-499, Sec. 107(d)(2), substituted ``Sums recovered by the 
United States Government as trustee under this subsection shall be 
retained by the trustee, without further appropriation, for use only to 
restore, replace, or acquire the equivalent of such natural resources. 
Sums recovered by a State as trustee under this subsection shall be 
available for use only to restore, replace, or acquire the equivalent of 
such natural resources by the State. The measure of damages in any 
action under subparagraph (C) of subsection (a) of this section shall 
not be limited by the sums which can be used to restore or replace such 
resources. There shall be no double recovery under this chapter for 
natural resource damages, including the costs of damage assessment or 
restoration, rehabilitation, or acquisition for the same release and 
natural resource'' for ``Sums recovered shall be available for use to 
restore, rehabilitate, or acquire the equivalent of such natural 
resources by the appropriate agencies of the Federal Government or the 
State government, but the measure of such damages shall not be limited 
by the sums which can be used to restore or replace such resources''.
    Pub. L. 99-499, Sec. 207(c)(2)(D), which directed the insertion of 
``or the Indian tribe'' after ``State government'', could not be 
executed because the prior amendment by section 107(d)(2) of Pub. L. 99-
499, struck out third sentence referring to ``State government''.
    Subsec. (f)(2). Pub. L. 99-499, Sec. 107(d)(1), added par. (2).
    Subsec. (g). Pub. L. 99-499, Sec. 107(e), amended subsec. (g) 
generally. Prior to amendment, subsec. (g) read as follows: ``Each 
department, agency, or instrumentality of the executive, legislative, 
and judicial branches of the Federal Government shall be subject to, and 
comply with, this chapter in the same manner and to the same extent, 
both procedurally and substantively, as any nongovernmental entity, 
including liability under this section.''
    Subsec. (h). Pub. L. 99-499, Sec. 127(e), inserted ``, under 
maritime tort law,'' after ``with this section'' and inserted ``or the 
absence of any physical damage to the proprietary interest of the 
claimant'' before the period at end.
    Subsec. (i). Pub. L. 99-499, Sec. 207(c)(3), inserted ``or Indian 
tribe'' after ``State''.
    Subsec. (j). Pub. L. 99-499, Sec. 207(c)(4), inserted ``or Indian 
tribe'' after first reference to ``State''.
    Subsec. (k)(5), (6). Pub. L. 99-499, Sec. 201, added pars. (5) and 
(6).
    Subsec. (l), Pub. L. 99-499, Sec. 107(f), added subsec. (l).
    Subsec. (l)(3). Pub. L. 99-514 substituted ``Internal Revenue Code 
of 1986'' for ``Internal Revenue Code of 1954'', which for purposes of 
codification was translated as ``title 26'' thus requiring no change in 
text.
    Subsec. (m). Pub. L. 99-499, Sec. 107(f), added subsec. (m).


                    Effective Date of 1996 Amendment

    Amendment by Pub. L. 104-208 applicable with respect to any claim 
that has not been finally adjudicated as of Sept. 30, 1996, see section 
2505 of Pub. L. 104-208, set out as a note under section 6991b of this 
title.


                            Recovery of Costs

    Pub. L. 104-303, title II, Sec. 209, Oct. 12, 1996, 110 Stat. 3681, 
provided that: ``Amounts recovered under section 107 of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (42 U.S.C. 9607) for any response action taken by the Secretary in 
support of the civil works program of the Department of the Army and any 
other amounts recovered by the Secretary from a contractor, insurer, 
surety, or other person to reimburse the Department of the Army for any 
expenditure for environmental response activities in support of the Army 
civil works program shall be credited to the appropriate trust fund 
account from which the cost of such response action has been paid or 
will be charged.''


            Coordination of Titles I to IV of Pub. L. 99-499

    Any provision of titles I to IV of Pub. L. 99-499, imposing any tax, 
premium, or fee; establishing any trust fund; or authorizing 
expenditures from any trust fund, to have no force or effect, see 
section 531 of Pub. L. 99-499, set out as a note under section 1 of 
Title 26, Internal Revenue Code.

                  Section Referred to in Other Sections

    This section is referred to in sections 6924, 6939a, 6991b, 6991c, 
9601, 9603, 9606, 9608, 9611, 9612, 9613, 9614, 9619, 9620, 9622, 9624, 
9627, 9651, 9656, 9658 of this title; title 14 section 692; title 16 
sections 1437, 1443; title 26 section 9507.
