42 U.S.C. § 9608 : US Code - Section 9608: Financial responsibility

Search 42 U.S.C. § 9608 : US Code - Section 9608: Financial responsibility

(a) Establishment and maintenance by owner or operator of vessel;
amount; failure to obtain certification of compliance
(1) The owner or operator of each vessel (except a nonself-
propelled barge that does not carry hazardous substances as cargo)
over three hundred gross tons that uses any port or place in the
United States or the navigable waters or any offshore facility,
shall establish and maintain, in accordance with regulations
promulgated by the President, evidence of financial responsibility
of $300 per gross ton (or for a vessel carrying hazardous
substances as cargo, or $5,000,000, whichever is greater) to cover
the liability prescribed under paragraph (1) of section 9607(a) of
this title. Financial responsibility may be established by any one,
or any combination, of the following: insurance, guarantee, surety
bond, or qualification as a self-insurer. Any bond filed shall be
issued by a bonding company authorized to do business in the United
States. In cases where an owner or operator owns, operates, or
charters more than one vessel subject to this subsection, evidence
of financial responsibility need be established only to meet the
maximum liability applicable to the largest of such vessels.
(2) The Secretary of the Treasury shall withhold or revoke the
clearance required by section 91 of title 46, Appendix, of any
vessel subject to this subsection that does not have certification
furnished by the President that the financial responsibility
provisions of paragraph (1) of this subsection have been complied
with.
(3) The Secretary of Transportation, in accordance with
regulations issued by him, shall (A) deny entry to any port or
place in the United States or navigable waters to, and (B) detain
at the port or place in the United States from which it is about to
depart for any other port or place in the United States, any vessel
subject to this subsection that, upon request, does not produce
certification furnished by the President that the financial
responsibility provisions of paragraph (1) of this subsection have
been complied with.
(4) In addition to the financial responsibility provisions of
paragraph (1) of this subsection, the President shall require
additional evidence of financial responsibility for incineration
vessels in such amounts, and to cover such liabilities recognized
by law, as the President deems appropriate, taking into account the
potential risks posed by incineration and transport for
incineration, and any other factors deemed relevant.
(b) Establishment and maintenance by owner or operator of
production, etc., facilities; amount; adjustment; consolidated
form of responsibility; coverage of motor carriers
(1) Beginning not earlier than five years after December 11,
1980, the President shall promulgate requirements (for facilities
in addition to those under subtitle C of the Solid Waste Disposal
Act [42 U.S.C. 6921 et seq.] and other Federal law) that classes of
facilities establish and maintain evidence of financial
responsibility consistent with the degree and duration of risk
associated with the production, transportation, treatment, storage,
or disposal of hazardous substances. Not later than three years
after December 11, 1980, the President shall identify those classes
for which requirements will be first developed and publish notice
of such identification in the Federal Register. Priority in the
development of such requirements shall be accorded to those classes
of facilities, owners, and operators which the President determines
present the highest level of risk of injury.
(2) The level of financial responsibility shall be initially
established, and, when necessary, adjusted to protect against the
level of risk which the President in his discretion believes is
appropriate based on the payment experience of the Fund, commercial
insurers, courts settlements and judgments, and voluntary claims
satisfaction. To the maximum extent practicable, the President
shall cooperate with and seek the advice of the commercial
insurance industry in developing financial responsibility
requirements. Financial responsibility may be established by any
one, or any combination, of the following: insurance, guarantee,
surety bond, letter of credit, or qualification as a self-insurer.
In promulgating requirements under this section, the President is
authorized to specify policy or other contractual terms,
conditions, or defenses which are necessary, or which are
unacceptable, in establishing such evidence of financial
responsibility in order to effectuate the purposes of this chapter.
(3) Regulations promulgated under this subsection shall
incrementally impose financial responsibility requirements as
quickly as can reasonably be achieved but in no event more than 4
years after the date of promulgation. Where possible, the level of
financial responsibility which the President believes appropriate
as a final requirement shall be achieved through incremental,
annual increases in the requirements.
(4) Where a facility is owned or operated by more than one
person, evidence of financial responsibility covering the facility
may be established and maintained by one of the owners or
operators, or, in consolidated form, by or on behalf of two or more
owners or operators. When evidence of financial responsibility is
established in a consolidated form, the proportional share of each
participant shall be shown. The evidence shall be accompanied by a
statement authorizing the applicant to act for and in behalf of
each participant in submitting and maintaining the evidence of
financial responsibility.
(5) The requirements for evidence of financial responsibility for
motor carriers covered by this chapter shall be determined under
section 31139 of title 49.
(c) Direct action
(1) Releases from vessels
In the case of a release or threatened release from a vessel,
any claim authorized by section 9607 or 9611 of this title may be
asserted directly against any guarantor providing evidence of
financial responsibility for such vessel under subsection (a) of
this section. In defending such a claim, the guarantor may invoke
all rights and defenses which would be available to the owner or
operator under this subchapter. The guarantor may also invoke the
defense that the incident was caused by the willful misconduct of
the owner or operator, but the guarantor may not invoke any other
defense that the guarantor might have been entitled to invoke in
a proceeding brought by the owner or operator against him.
(2) Releases from facilities
In the case of a release or threatened release from a facility,
any claim authorized by section 9607 or 9611 of this title may be
asserted directly against any guarantor providing evidence of
financial responsibility for such facility under subsection (b)
of this section, if the person liable under section 9607 of this
title is in bankruptcy, reorganization, or arrangement pursuant
to the Federal Bankruptcy Code, or if, with reasonable diligence,
jurisdiction in the Federal courts cannot be obtained over a
person liable under section 9607 of this title who is likely to
be solvent at the time of judgment. In the case of any action
pursuant to this paragraph, the guarantor shall be entitled to
invoke all rights and defenses which would have been available to
the person liable under section 9607 of this title if any action
had been brought against such person by the claimant and all
rights and defenses which would have been available to the
guarantor if an action had been brought against the guarantor by
such person.
(d) Limitation of guarantor liability
(1) Total liability
The total liability of any guarantor in a direct action suit
brought under this section shall be limited to the aggregate
amount of the monetary limits of the policy of insurance,
guarantee, surety bond, letter of credit, or similar instrument
obtained from the guarantor by the person subject to liability
under section 9607 of this title for the purpose of satisfying
the requirement for evidence of financial responsibility.
(2) Other liability
Nothing in this subsection shall be construed to limit any
other State or Federal statutory, contractual, or common law
liability of a guarantor, 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, interpreted, or applied to
diminish the liability of any person under section 9607 of this
title or other applicable law.