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(continued) r or operator
disclosing such information may require a written confidentiality
agreement in accordance with subsection (d) of this section and a
statement setting forth the items listed in paragraphs (1) through
(3) as soon as circumstances permit.
(c) Preventive measures by local health professionals
(1) Provision of information
An owner or operator of a facility subject to the requirements
of section 11021, 11022, or 11023 of this title shall provide the
specific chemical identity, if known, of a hazardous chemical, an
extremely hazardous substance, or a toxic chemical to any health
professional (such as a physician, toxicologist, or
epidemiologist) -
(A) who is a local government employee or a person under
contract with the local government, and
(B) who requests such information in writing and provides a
written statement of need under paragraph (2) and a written
confidentiality agreement under subsection (d) of this section.
Following such a written request, the owner or operator to whom
such request is made shall promptly provide the requested
information to the local health professional. The authority to
withhold the specific chemical identity of a chemical under
section 11042 of this title when such information is a trade
secret shall not apply to information required to be provided
under this subsection, subject to the provisions of subsection
(d) of this section.
(2) Written statement of need
The written statement of need shall be a statement that
describes with reasonable detail one or more of the following
health needs for the information:
(A) To assess exposure of persons living in a local community
to the hazards of the chemical concerned.
(B) To conduct or assess sampling to determine exposure
levels of various population groups.
(C) To conduct periodic medical surveillance of exposed
population groups.
(D) To provide medical treatment to exposed individuals or
population groups.
(E) To conduct studies to determine the health effects of
exposure.
(F) To conduct studies to aid in the identification of a
chemical that may reasonably be anticipated to cause an
observed health effect.
(d) Confidentiality agreement
Any person obtaining information under subsection (a) or (c) of
this section shall, in accordance with such subsection (a) or (c)
of this section, be required to agree in a written confidentiality
agreement that he will not use the information for any purpose
other than the health needs asserted in the statement of need,
except as may otherwise be authorized by the terms of the agreement
or by the person providing such information. Nothing in this
subsection shall preclude the parties to a confidentiality
agreement from pursuing any remedies to the extent permitted by
law.
(e) Regulations
As soon as practicable after October 17, 1986, the Administrator
shall promulgate regulations describing criteria and parameters for
the statement of need under subsection )1(! (a) and (c) of this
section and the confidentiality agreement under subsection (d) of
this section.
-SOURCE-
(Pub. L. 99-499, title III, Sec. 323, Oct. 17, 1986, 100 Stat.
1750.)
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 11042, 11045 of this
title.
-FOOTNOTE-
)1(! So in original. Probably should be "subsections".
-End-
-CITE-
42 USC Sec. 11044 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 116 - EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW
SUBCHAPTER III - GENERAL PROVISIONS
-HEAD-
Sec. 11044. Public availability of plans, data sheets, forms, and
followup notices
-STATUTE-
(a) Availability to public
Each emergency response plan, material safety data sheet, list
described in section 11021(a)(2) of this title, inventory form,
toxic chemical release form, and followup emergency notice shall be
made available to the general public, consistent with section 11042
of this title, during normal working hours at the location or
locations designated by the Administrator, Governor, State
emergency response commission, or local emergency planning
committee, as appropriate. Upon request by an owner or operator of
a facility subject to the requirements of section 11022 of this
title, the State emergency response commission and the appropriate
local emergency planning committee shall withhold from disclosure
under this section the location of any specific chemical required
by section 11022(d)(2) of this title to be contained in an
inventory form as tier II information.
(b) Notice of public availability
Each local emergency planning committee shall annually publish a
notice in local newspapers that the emergency response plan,
material safety data sheets, and inventory forms have been
submitted under this section. The notice shall state that followup
emergency notices may subsequently be issued. Such notice shall
announce that members of the public who wish to review any such
plan, sheet, form, or followup notice may do so at the location
designated under subsection (a) of this section.
-SOURCE-
(Pub. L. 99-499, title III, Sec. 324, Oct. 17, 1986, 100 Stat.
1752.)
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 11001, 11021, 11022,
11023, 11046 of this title.
-End-
-CITE-
42 USC Sec. 11045 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 116 - EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW
SUBCHAPTER III - GENERAL PROVISIONS
-HEAD-
Sec. 11045. Enforcement
-STATUTE-
(a) Civil penalties for emergency planning
The Administrator may order a facility owner or operator (except
an owner or operator of a facility designated under section
11002(b)(2) of this title) to comply with section 11002(c) of this
title and section 11003(d) of this title. The United States
district court for the district in which the facility is located
shall have jurisdiction to enforce the order, and any person who
violates or fails to obey such an order shall be liable to the
United States for a civil penalty of not more than $25,000 for each
day in which such violation occurs or such failure to comply
continues.
(b) Civil, administrative, and criminal penalties for emergency
notification
(1) Class I administrative penalty
(A) A civil penalty of not more than $25,000 per violation may
be assessed by the Administrator in the case of a violation of
the requirements of section 11004 of this title.
(B) No civil penalty may be assessed under this subsection
unless the person accused of the violation is given notice and
opportunity for a hearing with respect to the violation.
(C) In determining the amount of any penalty assessed pursuant
to this subsection, the Administrator shall take into account the
nature, circumstances, extent and gravity of the violation or
violations and, with respect to the violator, ability to pay, any
prior history of such violations, the degree of culpability,
economic benefit or savings (if any) resulting from the
violation, and such other matters as justice may require.
(2) Class II administrative penalty
A civil penalty of not more than $25,000 per day for each day
during which the violation continues may be assessed by the
Administrator in the case of a violation of the requirements of
section 11004 of this title. In the case of a second or
subsequent violation the amount of such penalty may be not more
than $75,000 for each day during which the violation continues.
Any civil penalty under this subsection shall be assessed and
collected in the same manner, and subject to the same provisions,
as in the case of civil penalties assessed and collected under
section 2615 of title 15. In any proceeding for the assessment of
a civil penalty under this subsection the Administrator may issue
subpoenas for the attendance and testimony of witnesses and the
production of relevant papers, books, and documents and may
promulgate rules for discovery procedures.
(3) Judicial assessment
The Administrator may bring an action in the United States
District )1(! court for the appropriate district to assess and
collect a penalty of not more than $25,000 per day for each day
during which the violation continues in the case of a violation
of the requirements of section 11004 of this title. In the case
of a second or subsequent violation, the amount of such penalty
may be not more than $75,000 for each day during which the
violation continues.
(4) Criminal penalties
Any person who knowingly and willfully fails to provide notice
in accordance with section 11004 of this title shall, upon
conviction, be fined not more than $25,000 or imprisoned for not
more than two years, or both (or in the case of a second or
subsequent conviction, shall be fined not more than $50,000 or
imprisoned for not more than five years, or both).
(c) Civil and administrative penalties for reporting requirements
(1) Any person (other than a governmental entity) who violates
any requirement of section 11022 or 11023 of this title shall be
liable to the United States for a civil penalty in an amount not to
exceed $25,000 for each such violation.
(2) Any person (other than a governmental entity) who violates
any requirement of section 11021 or 11043(b) of this title, and any
person who fails to furnish to the Administrator information
required under section 11042(a)(2) of this title shall be liable to
the United States for a civil penalty in an amount not to exceed
$10,000 for each such violation.
(3) Each day a violation described in paragraph (1) or (2)
continues shall, for purposes of this subsection, constitute a
separate violation.
(4) The Administrator may assess any civil penalty for which a
person is liable under this subsection by administrative order or
may bring an action to assess and collect the penalty in the United
States district court for the district in which the person from
whom the penalty is sought resides or in which such person's
principal place of business is located.
(d) Civil, administrative, and criminal penalties with respect to
trade secrets
(1) Civil and administrative penalty for frivolous claims
If the Administrator determines -
(A)(i) under section 11042(d)(4) of this title that an
explanation submitted by a trade secret claimant presents
insufficient assertions to support a finding that a specific
chemical identity is a trade secret, or (ii) after receiving
supplemental supporting detailed information under section
11042(d)(3)(A) of this title, that the specific chemical
identity is not a trade secret; and
(B) that the trade secret claim is frivolous,
the trade secret claimant is liable for a penalty of $25,000 per
claim. The Administrator may assess the penalty by administrative
order or may bring an action in the appropriate district court of
the United States to assess and collect the penalty.
(2) Criminal penalty for disclosure of trade secret information
Any person who knowingly and willfully divulges or discloses
any information entitled to protection under section 11042 of
this title shall, upon conviction, be subject to a fine of not
more than $20,000 or to imprisonment not to exceed one year, or
both.
(e) Special enforcement provisions for section 11043
Whenever any facility owner or operator required to provide
information under section 11043 of this title to a health
professional who has requested such information fails or refuses to
provide such information in accordance with such section, such
health professional may bring an action in the appropriate United
States district court to require such facility owner or operator to
provide the information. Such court shall have jurisdiction to
issue such orders and take such other action as may be necessary to
enforce the requirements of section 11043 of this title.
(f) Procedures for administrative penalties
(1) Any person against whom a civil penalty is assessed under
this section may obtain review thereof in the appropriate district
court of the United States by filing a notice of appeal in such
court within 30 days after the date of such order and by
simultaneously sending a copy of such notice by certified mail to
the Administrator. The Administrator shall promptly file in such
court a certified copy of the record upon which such violation was
found or such penalty imposed. If any person fails to pay an
assessment of a civil penalty after it has become a final and
unappealable order or after the appropriate court has entered final
judgment in favor of the United States, the Administrator may
request the Attorney General of the United States to institute a
civil action in an appropriate district court of the United States
to collect the penalty, and such court shall have jurisdiction to
hear and decide any such action. In hearing such action, the court
shall have authority to review the violation and the assessment of
the civil penalty on the record.
(2) The Administrator may issue subpoenas for the attendance and
testimony of witnesses and the production of relevant papers,
books, or documents in connection with hearings under this section.
In case of contumacy or refusal to obey a subpoena issued pursuant
to this paragraph and served upon any person, the district court of
the United States for any district in which such person is found,
resides, or transacts business, upon application by the United
States and after notice to such person, shall have jurisdiction to
issue an order requiring such person to appear and give testimony
before the administrative law judge or to appear and produce
documents before the administrative law judge, or both, and any
failure to obey such order of the court may be punished by such
court as a contempt thereof.
-SOURCE-
(Pub. L. 99-499, title III, Sec. 325, Oct. 17, 1986, 100 Stat.
1753.)
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 13106 of this title.
-FOOTNOTE-
)1(! So in original. Probably should not be capitalized.
-End-
-CITE-
42 USC Sec. 11046 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 116 - EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW
SUBCHAPTER III - GENERAL PROVISIONS
-HEAD-
Sec. 11046. Civil actions
-STATUTE-
(a) Authority to bring civil actions
(1) Citizen suits
Except as provided in subsection (e) of this section, any
person may commence a civil action on his own behalf against the
following:
(A) An owner or operator of a facility for failure to do any
of the following:
(i) Submit a followup emergency notice under section
11004(c) of this title.
(ii) Submit a material safety data sheet or a list under
section 11021(a) of this title.
(iii) Complete and submit an inventory form under section
11022(a) of this title containing tier I information as
described in section 11022(d)(1) of this title unless such
requirement does not apply by reason of the second sentence
of section 11022(a)(2) of this title.
(iv) Complete and submit a toxic chemical release form
under section 11023(a) of this title.
(B) The Administrator for failure to do any of the following:
(i) Publish inventory forms under section 11022(g) of this
title.
(ii) Respond to a petition to add or delete a chemical
under section 11023(e)(1) of this title within 180 days after
receipt of the petition.
(iii) Publish a toxic chemical release form under 11023(g)
)1(! of this title.
(iv) Establish a computer database in accordance with
section 11023(j) of this title.
(v) Promulgate trade secret regulations under section
11042(c) of this title.
(vi) Render a decision in response to a petition under
section 11042(d) of this title within 9 months after receipt
of the petition.
(C) The Administrator, a State Governor, or a State emergency
response commission, for failure to provide a mechanism for
public availability of information in accordance with section
11044(a) of this title.
(D) A State Governor or a State emergency response commission
for failure to respond to a request for tier II information
under section 11022(e)(3) of this title within 120 days after
the date of receipt of the request.
(2) State or local suits
(A) Any State or local government may commence a civil action
against an owner or operator of a facility for failure to do any
of the following:
(i) Provide notification to the emergency response commission
in the State under section 11002(c) of this title.
(ii) Submit a material safety data sheet or a list under
section 11021(a) of this title.
(iii) Make available information requested under section
11021(c) of this title.
(iv) Complete and submit an inventory form under section
11022(a) of this title containing tier I information unless
such requirement does not apply by reason of the second
sentence of section 11022(a)(2) of this title.
(B) Any State emergency response commission or local emergency
planning committee may commence a civil action against an owner
or operator of a facility for failure to provide information
under section 11003(d) of this title or for failure to submit
tier II information under section 11022(e)(1) of this title.
(C) Any State may commence a civil action against the
Administrator for failure to provide information to the State
under section 11042(g) of this title.
(b) Venue
(1) Any action under subsection (a) of this section against an
owner or operator of a facility shall be brought in the district
court for the district in which the alleged violation occurred.
(2) Any action under subsection (a) of this section against the
Administrator may be brought in the United States District Court
for the District of Columbia.
(c) Relief
The district court shall have jurisdiction in actions brought
under subsection (a) of this section against an owner or operator
of a facility to enforce the requirement concerned and to impose
any civil penalty provided for violation of that requirement. The
district court shall have jurisdiction in actions brought under
subsection (a) of this section against the Administrator to order
the Administrator to perform the act or duty concerned.
(d) Notice
(1) No action may be commenced under subsection (a)(1)(A) of this
section prior to 60 days after the plaintiff has given notice of
the alleged violation to the Administrator, the State in which the
alleged violation occurs, and the alleged violator. Notice under
this paragraph shall be given in such manner as the Administrator
shall prescribe by regulation.
(2) No action may be commenced under subsection (a)(1)(B) or
(a)(1)(C) of this section prior to 60 days after the date on which
the plaintiff gives notice to the Administrator, State Governor, or
State emergency response commission (as the case may be) that the
plaintiff will commence the action. Notice under this paragraph
shall be given in such manner as the Administrator shall prescribe
by regulation.
(e) Limitation
No action may be commenced under subsection (a) of this section
against an owner or operator of a facility if the Administrator has
commenced and is diligently pursuing an administrative order or
civil action to enforce the requirement concerned or to impose a
civil penalty under this Act with respect to the violation of the
requirement.
(f) Costs
The court, in issuing any final order in any action brought
pursuant to this section, may award costs of litigation (including
reasonable attorney and expert witness fees) to the prevailing or
the substantially prevailing party whenever the court determines
such an award is appropriate. The court may, if a temporary
restraining order or preliminary injunction is sought, require the
filing of a bond or equivalent security in accordance with the
Federal Rules of Civil Procedure.
(g) Other rights
Nothing in this section shall restrict or expand any right which
any person (or class of persons) may have under any Federal or
State statute or common law to seek enforcement of any requirement
or to seek any other relief (including relief against the
Administrator or a State agency).
(h) Intervention
(1) By the United States
In any action under this section the United States or the
State, or both, if not a party, may intervene as a matter of
right.
(2) By persons
In any action under this section, any person may intervene as a
matter of right when such person has a direct interest which is
or may be adversely affected by the action and the disposition of
the action may, as a practical matter, impair or impede the
person's ability to protect that interest unless the
Administrator or the State shows that the person's interest is
adequately represented by existing parties in the action.
-SOURCE-
(Pub. L. 99-499, title III, Sec. 326, Oct. 17, 1986, 100 Stat.
1755.)
-REFTEXT-
REFERENCES IN TEXT
This Act, referred to in subsec. (e), is Pub. L. 99-499, Oct. 17,
1986, 100 Stat. 1613, as amended, 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.
The Federal Rules of Civil Procedure, referred to in subsec. (f),
are set out in the Appendix to Title 28, Judiciary and Judicial
Procedure.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 13106 of this title.
-FOOTNOTE-
)1(! So in original. Probably should be preceded by "section".
-End-
-CITE-
42 USC Sec. 11047 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 116 - EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW
SUBCHAPTER III - GENERAL PROVISIONS
-HEAD-
Sec. 11047. Exemption
-STATUTE-
Except as provided in section 11004 of this title, this chapter
does not apply to the transportation, including the storage
incident to such transportation, of any substance or chemical
subject to the requirements of this chapter, including the
transportation and distribution of natural gas.
-SOURCE-
(Pub. L. 99-499, title III, Sec. 327, Oct. 17, 1986, 100 Stat.
1757.)
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 11004 of this title.
-End-
-CITE-
42 USC Sec. 11048 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 116 - EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW
SUBCHAPTER III - GENERAL PROVISIONS
-HEAD-
Sec. 11048. Regulations
-STATUTE-
The Administrator may prescribe such regulations as may be
necessary to carry out this chapter.
-SOURCE-
(Pub. L. 99-499, title III, Sec. 328, Oct. 17, 1986, 100 Stat.
1757.)
-End-
-CITE-
42 USC Sec. 11049 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 116 - EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW
SUBCHAPTER III - GENERAL PROVISIONS
-HEAD-
Sec. 11049. Definitions
-STATUTE-
For purposes of this chapter -
(1) Administrator
The term "Administrator" means the Administrator of the
Environmental Protection Agency.
(2) Environment
The term "environment" includes water, air, and land and the
interrelationship which exists among and between water, air, and
land and all living things.
(3) Extremely hazardous substance
The term "extremely hazardous substance" means a substance on
the list described in section 11002(a)(2) of this title.
(4) Facility
The term "facility" means all buildings, equipment, structures,
and other stationary items which are located on a single site or
on contiguous or adjacent sites and which are owned or operated
by the same person (or by any person which controls, is
controlled by, or under common control with, such person). For
purposes of section 11004 of this title, the term includes motor
vehicles, rolling stock, and aircraft.
(5) Hazardous chemical
The term "hazardous chemical" has the meaning given such term
by section 11021(e) of this title.
(6) Material safety data sheet
The term "material safety data sheet" means the sheet required
to be developed under section 1910.1200(g) of title 29 of the
Code of Federal Regulations, as that section may be amended from
time to time.
(7) Person
The term "person" means any individual, trust, firm, joint
stock company, corporation (including a government corporation),
partnership, association, State, municipality, commission,
political subdivision of a State, or interstate body.
(8) Release
The term "release" means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment (including
the abandonment or discarding of barrels, containers, and other
closed receptacles) of any hazardous chemical, extremely
hazardous substance, or toxic chemical.
(9) State
The term "State" means any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam,
American Samoa, the United States Virgin Islands, the Northern
Mariana Islands, and any other territory or possession over which
the United States has jurisdiction.
(10) Toxic chemical
The term "toxic chemical" means a substance on the list
described in section 11023(c) of this title.
-SOURCE-
(Pub. L. 99-499, title III, Sec. 329, Oct. 17, 1986, 100 Stat.
1757.)
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 13102 of this title.
-End-
-CITE-
42 USC Sec. 11050 01/19/04
-EXPCITE-
TITLE 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 116 - EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW
SUBCHAPTER III - GENERAL PROVISIONS
-HEAD-
Sec. 11050. Authorization of appropriations
-STATUTE-
There are authorized to be appropriated for fiscal years
beginning after September 30, 1986, such sums as may be necessary
to carry out this chapter.
-SOURCE-
(Pub. L. 99-499, title III, Sec. 330, Oct. 17, 1986, 100 Stat.
1758.)
-End-