42 U.S.C. § 6991b — Release detection, prevention, and cor-

Page 7024 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6991b (iii) the size, type and location of the tank, and (iv) the type and quantity of substances left stored in such tank on the date taken out of operation. (3) Any owner which brings into use an under- ground storage tank after the initial notifica- tion period specified under paragraph (1), shall notify the designated State or local agency or department within thirty days of the existence of such tank, specifying the age, size, type, loca- tion and uses of such tank. (4) Paragraphs (1) through (3) of this sub- section shall not apply to tanks for which notice was given pursuant to section 9603(c) of this title. (5) Beginning thirty days after the Adminis- trator prescribes the form of notice pursuant to subsection (b)(2) and for eighteen months there- after, any person who deposits regulated sub- stances in an underground storage tank shall reasonably notify the owner or operator of such tank of the owner’s notification requirements pursuant to this subsection. (6) Beginning thirty days after the Adminis- trator issues new tank performance standards pursuant to section 6991b(c) of this title, any person who sells a tank intended to be used as an underground storage tank shall notify the purchaser of such tank of the owner’s notifica- tion requirements pursuant to this subsection. (b) Agency designation (1) Within one hundred and eighty days after November 8, 1984, the Governors of each State shall designate the appropriate State agency or department or local agencies or departments to receive the notifications under subsection (a)(1), (2), or (3). (2) Within twelve months after November 8, 1984, the Administrator, in consultation with State and local officials designated pursuant to subsection (b)(1), and after notice and oppor- tunity for public comment, shall prescribe the form of the notice and the information to be in- cluded in the notifications under subsection (a)(1), (2), or (3). In prescribing the form of such notice, the Administrator shall take into ac- count the effect on small businesses and other owners and operators. (c) State inventories Each State shall make 2 separate inventories of all underground storage tanks in such State containing regulated substances. One inventory shall be made with respect to petroleum and one with respect to other regulated substances. In making such inventories, the State shall utilize and aggregate the data in the notification forms submitted pursuant to subsections (a) and (b) of this section. Each State shall submit such ag- gregated data to the Administrator not later than 270 days after October 17, 1986. (d) Public record (1) In general The Administrator shall require each State that receives Federal funds to carry out this subchapter to maintain, update at least annu- ally, and make available to the public, in such manner and form as the Administrator shall prescribe (after consultation with States), a record of underground storage tanks regulated under this subchapter. (2) Considerations To the maximum extent practicable, the public record of a State, respectively, shall in- clude, for each year— (A) the number, sources, and causes of un- derground storage tank releases in the State; (B) the record of compliance by under- ground storage tanks in the State with— (i) this subchapter; or (ii) an applicable State program ap- proved under section 6991c of this title; and (C) data on the number of underground storage tank equipment failures in the State. (Pub. L. 89–272, title II, § 9002, as added Pub. L. 98–616, title VI, § 601(a), Nov. 8, 1984, 98 Stat. 3278; amended Pub. L. 99–499, title II, § 205(b), Oct. 17, 1986, 100 Stat. 1696; Pub. L. 109–58, title XV, § 1526(c), Aug. 8, 2005, 119 Stat. 1098.) Editorial Notes AMENDMENTS 2005—Subsec. (d). Pub. L. 109–58 added subsec. (d). 1986—Subsec. (c). Pub. L. 99–499 added subsec. (c). § 6991b. Release detection, prevention, and cor- rection regulations (a) Regulations The Administrator, after notice and oppor- tunity for public comment, and at least three months before the effective dates specified in subsection (f), shall promulgate release detec- tion, prevention, and correction regulations ap- plicable to all owners and operators of under- ground storage tanks, as may be necessary to protect human health and the environment. (b) Distinctions in regulations In promulgating regulations under this sec- tion, the Administrator may distinguish be- tween types, classes, and ages of underground storage tanks. In making such distinctions, the Administrator may take into consideration fac- tors, 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 under- ground storage tanks— (1) requirements for maintaining a leak de- tection 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; Page 7025 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6991b (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 sub- stances into the environment; and (6) requirements for maintaining evidence of financial responsibility for taking corrective action and compensating third parties for bod- ily injury and property damage caused by sud- den 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 Adminis- trator 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 Adminis- trator. In promulgating requirements under this subsection, the Administrator is authorized to specify policy or other contractual terms, condi- tions, or defenses which are necessary or are un- acceptable in establishing such evidence of fi- nancial 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 aris- ing from conduct for which evidence of financial responsibility must be provided under this sub- section may be asserted directly against the guarantor providing such evidence of financial responsibility. In the case of any action pursu- ant to this paragraph such guarantor shall be entitled to invoke all rights and defenses which would have been available to the owner or oper- ator 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 includ- ing, 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 con- strued 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 fi- nancial responsibility regulations under this section, may establish an amount of coverage for particular classes or categories of under- ground storage tanks containing petroleum which shall satisfy such regulations and which shall not be less than $1,000,000 for each occur- rence with an appropriate aggregate require- ment. (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 sub- stantial 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 han- dling capacity of underground storage tanks in the class or category and the volume of pe- troleum handled by such tanks. (ii) The likelihood of release and the poten- tial extent of damage from any release from underground storage tanks in the class or cat- egory. (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 enforce- ment of the financial responsibility require- ments for a particular class or category of un- derground storage tanks or in a particular State, if the Administrator makes a determina- tion 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 re- tention 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 unwill- ing 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 Page 7026 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6991b subsection (f), 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 lim- ited to, design, construction, installation, re- lease detection, and compatibility standards. (f) Effective dates (1) Regulations issued pursuant to subsections (c) and (d), and standards issued pursuant to subsection (e) of this section, for underground storage tanks containing regulated substances defined in section 6991(7)(B) of this title (petro- leum, including crude oil or any fraction thereof which is liquid at standard conditions of tem- perature and pressure) shall be effective not later than thirty months after November 8, 1984. (2) Standards issued pursuant to subsection (e) of this section (entitled ‘‘New Tank Perform- ance Standards’’) for underground storage tanks containing regulated substances defined in sec- tion 6991(7)(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 Responsi- bility’’) for underground storage tanks con- taining regulated substances defined in section 6991(7)(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 sub- section (e) and after one hundred and eighty days after November 8, 1984, no person may in- stall an underground storage tank for the pur- pose of storing regulated substances unless such tank (whether of single or double wall construc- tion)— (A) will prevent releases due to corrosion or structural failure for the operational life of the tank; (B) is cathodically protected against corro- sion, constructed of noncorrosive material, steel clad with a noncorrosive material, or de- signed 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 sub- stance to be stored. (2) Notwithstanding paragraph (1), if soil tests conducted in accordance with ASTM Standard G57–78, or another standard approved by the Ad- ministrator, show that soil resistivity in an in- stallation location is 12,000 ohm/cm or more (un- less a more stringent standard is prescribed by the Administrator by rule), a storage tank with- out 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), the Administrator (or a State pursuant to paragraph (7)) is authorized to— (A) require the owner or operator of an un- derground storage tank to undertake correc- tive action with respect to any release of pe- troleum when the Administrator (or the State) determines that such corrective ac- tion 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 re- spect to any release of petroleum into the environment from an underground storage tank if such action is necessary, in the judg- ment 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 en- vironment. The Administrator shall use funds in the Trust Fund for payment of costs in- curred for corrective action under subpara- graph (B), enforcement action under subpara- graph (A), and cost recovery under paragraph (6) of this subsection. Subject to the priority requirements of paragraph (3), the Adminis- trator (or the State) shall give priority in un- dertaking such actions under subparagraph (B) to cases where the Administrator (or the State) cannot identify a solvent owner or op- erator of the tank who will undertake action properly. (2) After regulations Following the effective date of regulations under subsection (c), 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 un- dertake 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 Ad- ministrator (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 environ- ment, who is— (i) an owner or operator of the tank con- cerned, (ii) subject to such corrective action reg- ulations, and (iii) capable of carrying out such correc- tive 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 ex- ceed 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 under- ground storage tank from which the release occurred, expenditures from the Trust Fund are necessary to assure an effective correc- tive action. Page 7027 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6991b (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 under- taking corrective actions under this sub- section, and in issuing orders requiring owners or operators to undertake such actions, to re- leases 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 or- ders to the owner or operator of an under- ground storage tank to carry out subpara- graph (A) of paragraph (1) or to carry out regu- lations issued under subsection (c)(4). A State acting pursuant to paragraph (7) of this sub- section is authorized to carry out subpara- graph (A) of paragraph (1) only until the State’s program is approved by the Adminis- trator 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 para- graph (7)) under paragraph (1) or (2) may in- clude temporary or permanent relocation of residents and alternative household water sup- plies. In connection with the performance of any corrective action under paragraph (1) or (2), the Administrator may undertake an expo- sure assessment as defined in paragraph (10) of this subsection or provide for such an assess- ment 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 ac- tion or enforcement action with respect to the release of petroleum from an under- ground storage tank, the owner or operator of such tank shall be liable to the Adminis- trator or the State for such costs. The liabil- ity 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 con- sider 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). (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 op- erator of any underground storage tank or from any person who may be liable for a release or threat of release under this sub- section, 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 subpara- graph, shall bar a cause of action that an owner or operator or any other person sub- ject to liability under this section, or a guarantor, has or would have, by reason of subrogation or otherwise against any per- son. (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). (E) Inability or limited ability to pay (i) In general In determining the level of recovery ef- fort, or amount that should be recovered, the Administrator (or the State pursuant to paragraph (7)) shall consider the owner or operator’s ability to pay. An inability or limited ability to pay corrective action costs must be demonstrated to the Admin- istrator (or the State pursuant to para- graph (7)) by the owner or operator. (ii) Considerations In determining whether or not a dem- onstration is made under clause (i), the Administrator (or the State pursuant to paragraph (7)) shall take into consider- ation the ability of the owner or operator to pay corrective action costs and still maintain its basic business operations, in- cluding consideration of the overall finan- cial condition of the owner or operator and demonstrable constraints on the ability of the owner or operator to raise revenues. (iii) Information An owner or operator requesting consid- eration under this subparagraph shall promptly provide the Administrator (or the State pursuant to paragraph (7)) with all relevant information needed to deter- mine the ability of the owner or operator to pay corrective action costs. (iv) Alternative payment methods The Administrator (or the State pursu- ant to paragraph (7)) shall consider alter- native payment methods as may be nec- Page 7028 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6991b essary or appropriate if the Administrator (or the State pursuant to paragraph (7)) determines that an owner or operator can- not pay all or a portion of the costs in a lump sum payment. (v) Misrepresentation If an owner or operator provides false in- formation or otherwise misrepresents their financial situation under clause (ii), the Administrator (or the State pursuant to paragraph (7)) shall seek full recovery of the costs of all such actions pursuant to the provisions of subparagraph (A) without consideration of the factors in subpara- graph (B). (7) State authorities (A) General A State may exercise the authorities in paragraphs (1), (2), and (12), subject to the terms and conditions of paragraphs (3), (5), (9), (10), and (11), and the authority under sections 6991j and 6991k of this title and paragraphs (4), (6), and (8), if— (i) the Administrator determines that the State has the capabilities to carry out effective corrective actions and enforce- ment activities; and (ii) the Administrator enters into a coop- erative agreement with the State setting out the actions to be undertaken by the State. The Administrator may provide funds from the Trust Fund for the reasonable costs of the State’s actions under the cooperative agreement. (B) Cost share Following the effective date of the regula- tions 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 coop- erative agreement, except that the Adminis- trator may take corrective action at a facil- ity where immediate action is necessary to respond to an imminent and substantial endangerment to human health or the envi- ronment 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 pro- duction, refining, or marketing, holds indi- cia of ownership primarily to protect the person’s security interest. (B) Security interest holders The provisions regarding holders of secu- rity 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 deter- mining 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 con- strued as modifying or affecting the final rule issued by the Administrator on Sep- tember 7, 1995 (60 Fed. Reg. 46,692), or as lim- iting the authority of the Administrator to amend the final rule, in accordance with ap- plicable law. The final rule in effect on Sep- tember 30, 1996, shall prevail over any incon- sistent provision regarding holders of secu- rity interests in subparagraphs (E) through (G) of section 9601(20) of this title or any in- consistent 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 in- terests in subparagraphs (E) through (G) of section 9601(20) of this title and the provi- sions regarding fiduciaries in section 9607(n) of this title. This subparagraph does not pre- clude 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 ‘‘expo- sure assessment’’ means an assessment to de- termine 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 po- tential for pathways of human exposure (in- cluding ground or surface water contamina- tion, air emissions, and food chain contamina- tion), the size of the community within the likely pathways of exposure, and the compari- son of expected human exposure levels to the short-term and long-term health effects asso- ciated with identified contaminants and any available recommended exposure or tolerance limits for such contaminants. Such assess- ment 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 re- sponsibility 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 re- sult of subsection (d)(5)(B) of this section) for whatever reason the Administrator shall ex- pend no monies from the Trust Fund to clean up releases at such facility pursuant to the provisions of paragraph (1) or (2) of this sub- section. At such facilities the Administrator shall use the authorities provided in subpara- graph (A) of paragraph (1) and paragraph (4) of this subsection and section 6991e of this title to order corrective action to clean up such re- leases. 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 Page 7029 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6991b 1 So in original. corrective action to clean up such releases. Notwithstanding the provisions of this para- graph, 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 para- graph (6)(A) of this subsection and without consideration of the factors in paragraph (6)(B) of this subsection. Nothing in this para- graph shall prevent the Administrator (or a State pursuant to paragraph (7) of this sub- section) from taking corrective action at a fa- cility where there is no solvent owner or oper- ator or where immediate action is necessary to respond to an imminent and substantial endangerment of human health or the environ- ment. (12) Remediation of oxygenated fuel contami- nation (A) In general The Administrator and the States may use funds made available under section 6991m(2)(B) of this title to carry out correc- tive actions with respect to a release of a fuel containing an oxygenated fuel additive that presents a threat to human health or welfare or the environment. (B) Applicable authority The Administrator or a State shall carry out subparagraph (A) in accordance with paragraph (2), and in the case of a State, in accordance with a cooperative agreement entered into by the Administrator and the State under paragraph (7). (i) Additional measures to protect groundwater from contamination The Administrator shall require each State that receives funding under this subchapter to require one of the following: (1) Tank and piping secondary containment (A) Each new underground storage tank, or piping connected to any such new tank, in- stalled after the effective date of this sub- section, or any existing underground storage tank, or existing piping connected to such ex- isting tank, that is replaced after the effective date of this subsection, shall be secondarily contained and monitored for leaks if the new or replaced underground storage tank or pip- ing is within 1,000 feet of any existing commu- nity water system or any existing potable drinking water well. (B) In the case of a new underground storage tank system consisting of one or more under- ground storage tanks and connected by piping, subparagraph (A) shall apply to all under- ground storage tanks and connected pipes comprising such system. (C) In the case of a replacement of an exist- ing underground storage tank or existing pip- ing connected to the underground storage tank, subparagraph (A) shall apply only to the specific underground storage tank or piping being replaced, not to other underground stor- age tanks and connected pipes comprising such system. (D) Each installation of a new motor fuel dispenser system, after the effective date of this subsection, shall include under-dispenser spill containment if the new dispenser is with- in 1,000 feet of any existing community water system or any existing potable drinking water well. (E) This paragraph shall not apply to repairs to an underground storage tank, piping, or dis- penser that are meant to restore a tank, pipe, or dispenser to operating condition. (F) As used in this subsection: (i) The term ‘‘secondarily contained’’ means a release detection and prevention system that meets the requirements of 40 CFR 280.43(g), but shall not include under- dispenser spill containment or control sys- tems. (ii) The term ‘‘underground storage tank’’ has the meaning given to it in section 6991 of this title, except that such term does not in- clude tank combinations or more than a sin- gle underground pipe connected to a tank. (iii) The term ‘‘installation of a new motor fuel dispenser system’’ means the installa- tion of a new motor fuel dispenser and the equipment necessary to connect the dis- penser to the underground storage tank sys- tem, but does not mean the installation of a motor fuel dispenser installed separately from the equipment need to connect the dis- penser to the underground storage tank sys- tem. (2) Evidence of financial responsibility and certification (A) Manufacturer and installer financial re- sponsibility A person that manufactures an under- ground storage tank or piping for an under- ground storage tank system or that installs an underground storage tank system is re- quired to maintain evidence of financial re- sponsibility under subsection (d) in order to provide for the costs of corrective actions di- rectly related to releases caused by improper manufacture or installation unless the per- son can demonstrate themselves 1 to be al- ready covered as an owner or operator of an underground storage tank under this sec- tion. (B) Installer certification The Administrator and each State that re- ceives funding under this subchapter, as ap- propriate, shall require that a person that installs an underground storage tank system is— (i) certified or licensed by the tank and piping manufacturer; (ii) certified or licensed by the Adminis- trator or a State, as appropriate; (iii) has their 1 underground storage tank system installation certified by a reg- istered professional engineer with edu- cation and experience in underground stor- age tank system installation; (iv) has had their 1 installation of the un- derground storage tank inspected and ap- Page 7030 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6991b 2 So in original. Probably should be ‘‘medium.’’ proved by the Administrator or the State, as appropriate; (v) compliant with a code of practice de- veloped by a nationally recognized associa- tion or independent testing laboratory and in accordance with the manufacturer’s in- structions; or (vi) compliant with another method that is determined by the Administrator or a State, as appropriate, to be no less protec- tive of human health and the environment. (C) Savings clause Nothing in subparagraph (A) alters or af- fects the liability of any owner or operator of an underground storage tank. (j) Government-owned tanks (1) State compliance report (A) Not later than 2 years after August 8, 2005, each State that receives funding under this subchapter shall submit to the Adminis- trator a State compliance report that— (i) lists the location and owner of each un- derground storage tank described in sub- paragraph (B) in the State that, as of the date of submission of the report, is not in compliance with this section; and (ii) specifies the date of the last inspection and describes the actions that have been and will be taken to ensure compliance of the underground storage tank listed under clause (i) with this subchapter. (B) An underground storage tank described in this subparagraph is an underground stor- age tank that is— (i) regulated under this subchapter; and (ii) owned or operated by the Federal, State, or local government. (C) The Administrator shall make each re- port, received under subparagraph (A), avail- able to the public through an appropriate media.2 (2) Financial incentive The Administrator may award to a State that develops a report described in paragraph (1), in addition to any other funds that the State is entitled to receive under this sub- chapter, not more than $50,000, to be used to carry out the report. (3) Not a safe harbor This subsection does not relieve any person from any obligation or requirement under this subchapter. (Pub. L. 89–272, title II, § 9003, as added Pub. L. 98–616, title VI, § 601(a), Nov. 8, 1984, 98 Stat. 3279; amended Pub. L. 99–499, title II, § 205(c), (d), Oct. 17, 1986, 100 Stat. 1697, 1698; Pub. L. 104–208, div. A, title II, § 2503, Sept. 30, 1996, 110 Stat. 3009–468; Pub. L. 109–58, title XV, §§ 1522(c), 1525, 1526(b), 1530(a), 1532(b)(1), (2), 1533(2), Aug. 8, 2005, 119 Stat. 1093, 1096, 1097, 1102, 1105; Pub. L. 109–168, § 1(a)(2), Jan. 10, 2006, 119 Stat. 3580.) Editorial Notes REFERENCES IN TEXT The Federal Bankruptcy Code, referred to in subsec. (d)(2), probably means a reference to Title 11, Bank- ruptcy. The effective date of this subsection, referred to in subsec. (i)(1)(A), (D), is 18 months after Aug. 8, 2005. See Effective Date of 2005 Amendment note set out below. AMENDMENTS 2006—Subsecs. (i), (j). Pub. L. 109–168 redesignated subsec. (i), relating to government-owned tanks, as (j). Subsec. (j) was editorially transferred to the end of the section to reflect the probable intent of Congress. 2005—Subsec. (f)(1). Pub. L. 109–58, § 1533(2), sub- stituted ‘‘subsections (c) and (d)’’ for ‘‘subsection (c) and (d) of this section’’. Pub. L. 109–58, § 1532(b)(1)(A), substituted ‘‘6991(7)(B)’’ for ‘‘6991(2)(B)’’. Subsec. (f)(2), (3). Pub. L. 109–58, § 1532(b)(1)(B), sub- stituted ‘‘6991(7)(A)’’ for ‘‘6991(2)(A)’’. Subsec. (h)(1), (2)(C). Pub. L. 109–58, § 1532(b)(2), sub- stituted ‘‘Trust Fund’’ for ‘‘Leaking Underground Stor- age Tank Trust Fund’’. Subsec. (h)(6)(E). Pub. L. 109–58, § 1522(c), added sub- par. (E). Subsec. (h)(7)(A). Pub. L. 109–58, § 1532(b)(2), sub- stituted ‘‘Trust Fund’’ for ‘‘Leaking Underground Stor- age Tank Trust Fund’’ in concluding provisions. Pub. L. 109–58, § 1525(1), in introductory provisions, substituted ‘‘paragraphs (1), (2), and (12)’’ for ‘‘para- graphs (1) and (2) of this subsection’’ and ‘‘and the au- thority under sections 6991j and 6991k of this title and paragraphs (4), (6), and (8),’’ for ‘‘and including the au- thorities of paragraphs (4), (6), and (8) of this sub- section’’. Subsec. (h)(11). Pub. L. 109–58, § 1532(b)(2), substituted ‘‘Trust Fund’’ for ‘‘Leaking Underground Storage Tank Trust Fund’’. Subsec. (h)(12). Pub. L. 109–58, § 1525(2), added par. (12). Subsec. (i). Pub. L. 109–58, § 1530(a), added subsec. (i) relating to additional measures to protect groundwater from contamination. Pub. L. 109–58, § 1526(b), added subsec. (i) relating to government-owned tanks. 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 par- ticipating in the management of an underground stor- age tank and otherwise not engaged in petroleum pro- duction, refining, and marketing, holds indicia of own- ership primarily to protect the owner’s security inter- est in the tank.’’ 1986—Subsec. (c)(6). Pub. L. 99–499, § 205(c)(1), added par. (6). Subsec. (d)(1). Pub. L. 99–499, § 205(c)(3), which di- rected 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 inser- tion at end of first sentence, rather than at end of par. (1), as the probable intent of Congress, because an ear- lier version of the amending legislation had provided that such amendment be made to first sentence. Pub. L. 99–499, § 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 under- ground storage tank.’’ Subsec. (d)(2) to (5). Pub. L. 99–499, § 205(c)(2), (4), added par. (5) and redesignated pars. (3) to (5) as (2) to (4), respectively. Former par. (2) redesignated (1). Page 7031 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 6991c 1 So in original. The comma probably should not appear. Subsec. (h). Pub. L. 99–499, § 205(d), added subsec. (h). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Pub. L. 109–58, title XV, § 1530(b), Aug. 8, 2005, 119 Stat. 1104, provided that: ‘‘This subsection [probably means this section, which amended this section and section 6991e of this title and enacted provisions set out as notes under this section] shall take effect 18 months after the date of enactment of this subsection [Aug. 8, 2005].’’ EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–208, div. A, title II, § 2505, Sept. 30, 1996, 110 Stat. 3009–468, provided that: ‘‘The amendments made by this subtitle [subtitle E (§§ 2501–2505) of title II of div. A of Pub. L. 104–208, amending this section and sec- tions 9601 and 9607 of this title] shall be applicable with respect to any claim that has not been finally adju- dicated as of the date of enactment of this Act [Sept. 30, 1996].’’ REGULATIONS Pub. L. 109–58, title XV, § 1530(c), Aug. 8, 2005, 119 Stat. 1104, provided that: ‘‘The Administrator shall issue reg- ulations or guidelines implementing the requirements of this subsection [probably means this section, which amended this section and section 6991e of this title and enacted provisions set out as notes under this section], including guidance to differentiate between the terms ‘repair’ and ‘replace’ for the purposes of section 9003(i)(1) of the Solid Waste Disposal Act [42 U.S.C. 6991b(i)(1)].’’ 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 [prob- ably means section 9003(h)(7) of Pub. L. 89–272, 42 U.S.C. 6991b(h)(7)].’’ POLLUTION LIABILITY INSURANCE Pub. L. 99–499, title II, § 205(h), Oct. 17, 1986, 100 Stat. 1702, provided that: ‘‘(1) STUDY.—The Comptroller General shall conduct a study of the availability of pollution liability insur- ance, leak insurance, and contamination insurance for owners and operators of petroleum storage and dis- tribution 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 in- surance 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 sub- section [Oct. 17, 1986]. Such report shall include rec- ommendations for legislative or administrative changes that will enable owners and operators of under- ground storage tanks to maintain financial responsi- bility sufficient to provide all clean-up costs and dam- ages that may result from reasonably foreseeable re- leases and events.’’ § 6991c. Approval of State programs (a) Elements of State program Beginning 30 months after November 8, 1984, any State may,1 submit an underground storage tank release detection, prevention, and correc- tion program for review and approval by the Ad- ministrator. The program may cover tanks used to store regulated substances referred to in sub- paragraph (A) or (B) of section 6991(7) of this title. A State program may be approved by the Administrator under this section only if the State demonstrates that the State program in- cludes the following requirements and standards and provides for adequate enforcement of com- pliance with such requirements and standards— (1) requirements for maintaining a leak de- tection 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 sys- tem; (3) requirements for reporting of any re- leases 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 sub- stances into the environment; (6) requirements for maintaining evidence of financial responsibility for taking corrective action and compensating third parties for bod- ily injury and property damage caused by sud- den and nonsudden accidental releases arising from operating an underground storage tank; (7) standards of performance for new under- ground storage tanks; (8) requirements— (A) for notifying the appropriate State agency or department (or local agency or de- partment) designated according to section 6991a(b)(1) of this title of the existence of any operational or non-operational under- ground storage tank; and (B) for providing the information required on the form issued pursuant to section 6991a(b)(2) of this title; and (9) State-specific training requirements as required by section 6991i of this title. (b) Federal standards (1) A State program submitted under this sec- tion may be approved only if the requirements under paragraphs (1) through (7) of subsection (a) are no less stringent than the corresponding requirements standards promulgated by the Ad- ministrator pursuant to section 6991b(a) of this title. (2)(A) A State program may be approved with- out regard to whether or not the requirements referred to in paragraphs (1), (2), (3), and (5) of subsection (a) are less stringent than the cor-