33 U.S.C. § 2703 : US Code - Section 2703: Defenses to liability

Search 33 U.S.C. § 2703 : US Code - Section 2703: Defenses to liability

(a) Complete defenses
A responsible party is not liable for removal costs or damages
under section 2702 of this title if the responsible party
establishes, by a preponderance of the evidence, that the discharge
or substantial threat of a discharge of oil and the resulting
damages or removal costs 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 responsible party or a third party whose act or
omission occurs in connection with any contractual relationship
with the responsible party (except where the sole contractual
arrangement arises in connection with carriage by a common
carrier by rail), if the responsible party establishes, by a
preponderance of the evidence, that the responsible party -
(A) exercised due care with respect to the oil concerned,
taking into consideration the characteristics of the oil and in
light of all relevant facts and circumstances; and
(B) took precautions against foreseeable acts or omissions of
any such third party and the foreseeable consequences of those
acts or omissions; or
(4) any combination of paragraphs (1), (2), and (3).
(b) Defenses as to particular claimants
A responsible party is not liable under section 2702 of this
title to a claimant, to the extent that the incident is caused by
the gross negligence or willful misconduct of the claimant.
(c) Limitation on complete defense
Subsection (a) of this section does not apply with respect to a
responsible party who fails or refuses -
(1) to report the incident as required by law if the
responsible party knows or has reason to know of the incident;
(2) to provide all reasonable cooperation and assistance
requested by a responsible official in connection with removal
activities; or
(3) without sufficient cause, to comply with an order issued
under subsection (c) or (e) of section 1321 of this title or the
Intervention on the High Seas Act (33 U.S.C. 1471 et seq.).
(d) Definition of contractual relationship
(1) In general
For purposes of subsection (a)(3) of this section the term
"contractual relationship" includes, but is not limited to, land
contracts, deeds, easements, leases, or other instruments
transferring title or possession, unless -
(A) the real property on which the facility concerned is
located was acquired by the responsible party after the
placement of the oil on, in, or at the real property on which
the facility concerned is located;
(B) one or more of the circumstances described in
subparagraph (A), (B), or (C) of paragraph (2) is established
by the responsible party by a preponderance of the evidence;
and
(C) the responsible party complies with paragraph (3).
(2) Required circumstance
The circumstances referred to in paragraph (1)(B) are the
following:
(A) At the time the responsible party acquired the real
property on which the facility is located the responsible party
did not know and had no reason to know that oil that is the
subject of the discharge or substantial threat of discharge was
located on, in, or at the facility.
(B) The responsible party is a government entity that
acquired the facility -
(i) by escheat;
(ii) through any other involuntary transfer or acquisition;
or
(iii) through the exercise of eminent domain authority by
purchase or condemnation.
(C) The responsible party acquired the facility by
inheritance or bequest.
(3) Additional requirements
For purposes of paragraph (1)(C), the responsible party must
establish by a preponderance of the evidence that the responsible
party -
(A) has satisfied the requirements of subsection (a)(3)(A)
and (B) of this section;
(B) has provided full cooperation, assistance, and facility
access to the persons that are authorized to conduct removal
actions, including the cooperation and access necessary for the
installation, integrity, operation, and maintenance of any
complete or partial removal action;
(C) is in compliance with any land use restrictions
established or relied on in connection with the removal action;
and
(D) has not impeded the effectiveness or integrity of any
institutional control employed in connection with the removal
action.
(4) Reason to know
(A) Appropriate inquiries
To establish that the responsible party had no reason to know
of the matter described in paragraph (2)(A), the responsible
party must demonstrate to a court that -
(i) on or before the date on which the responsible party
acquired the real property on which the facility is located,
the responsible party carried out all appropriate inquiries,
as provided in subparagraphs (B) and (D), into the previous
ownership and uses of the real property on which the facility
is located in accordance with generally accepted good
commercial and customary standards and practices; and
(ii) the responsible party took reasonable steps to -
(I) stop any continuing discharge;
(II) prevent any substantial threat of discharge; and
(III) prevent or limit any human, environmental, or
natural resource exposure to any previously discharged oil.
(B) Regulations establishing standards and practices
Not later than 2 years after August 9, 2004, the Secretary,
in consultation with the Administrator of the Environmental
Protection Agency, shall by regulation establish standards and
practices for the purpose of satisfying the requirement to
carry out all appropriate inquiries under subparagraph (A).
(C) Criteria
In promulgating regulations that establish the standards and
practices referred to in subparagraph (B), the Secretary shall
include in such standards and practices provisions regarding
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 and the real property on which
the facility is located for the purpose of gathering
information regarding the potential for oil at the facility
and on the real property on which the facility is located.
(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 on which the facility is
located since the property was first developed.
(iv) Searches for recorded environmental cleanup liens
against the facility and the real property on which the
facility is located 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 waste handling, generation, treatment, disposal,
and spill records, concerning oil at or near the facility and
on the real property on which the facility is located.
(vi) Visual inspections of the facility, the real property
on which the facility is located, and adjoining properties.
(vii) Specialized knowledge or experience on the part of
the responsible party.
(viii) The relationship of the purchase price to the value
of the facility and the real property on which the facility
is located, if oil was not at the facility or on the real
property.
(ix) Commonly known or reasonably ascertainable information
about the facility and the real property on which the
facility is located.
(x) The degree of obviousness of the presence or likely
presence of oil at the facility and on the real property on
which the facility is located, and the ability to detect the
oil by appropriate investigation.
(D) Interim standards and practices
(i) Real property purchased before May 31, 1997
With respect to real property purchased before May 31,
1997, in making a determination with respect to a responsible
party described in subparagraph (A), a court shall take into
account -
(I) any specialized knowledge or experience on the part
of the responsible party;
(II) the relationship of the purchase price to the value
of the facility and the real property on which the facility
is located, if the oil was not at the facility or on the
real property;
(III) commonly known or reasonably ascertainable
information about the facility and the real property on
which the facility is located;
(IV) the obviousness of the presence or likely presence
of oil at the facility and on the real property on which
the facility is located; and
(V) the ability of the responsible party to detect oil by
appropriate inspection.
(ii) Real property purchased on or after May 31, 1997
With respect to real property purchased on or after May 31,
1997, until the Secretary 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 I Environmental Site
Assessment Process", shall satisfy the requirements in
subparagraph (A).
(E) Site inspection and title search
In the case of real property for residential use or other
similar use purchased by a nongovernmental or noncommercial
entity, inspection and title search of the facility and the
real property on which the facility is located that reveal no
basis for further investigation shall be considered to satisfy
the requirements of this paragraph.
(5) Previous owner or operator
Nothing in this paragraph or in subsection (a)(3) of this
section shall diminish the liability of any previous owner or
operator of such facility who would otherwise be liable under
this Act. Notwithstanding this paragraph, if a responsible party
obtained actual knowledge of the discharge or substantial threat
of discharge of oil at such facility when the responsible party
owned the facility and then subsequently transferred ownership of
the facility or the real property on which the facility is
located to another person without disclosing such knowledge, the
responsible party shall be treated as liable under 2702(a) (!1)
of this title and no defense under subsection (a) of this section
shall be available to such responsible party.
(6) Limitation on defense
Nothing in this paragraph shall affect the liability under this
Act of a responsible party who, by any act or omission, caused or
contributed to the discharge or substantial threat of discharge
of oil which is the subject of the action relating to the
facility.