§ 10904 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 7090

§ 10904. Annual report by States; contents; manner of payments pursuant to grants

(a) Reporting

Each State receiving grants under this chapter shall annually submit to the Secretary information on the number of eligible individuals assisted under the grant program, and their positions and salaries before and after receiving the

Child Development Associate credential.

(b) Payments

Payments pursuant to grants made under this

chapter may be made in installments, and in advance or by way of reimbursement, with necessary adjustments on account of overpayments

or underpayments, as the Secretary may determine.

(Pub. L. 99–425, title VI, §605, Sept. 30, 1986, 100

Stat. 977.)

§ 10905. Authorization of appropriations

There are authorized to be appropriated to

carry out this chapter such sums as may be necessary for fiscal year 1995.

(Pub. L. 99–425, title VI, §606, Sept. 30, 1986, 100

Stat. 977; Pub. L. 101–501, title V, §503, Nov. 3,

1990, 104 Stat. 1256; Pub. L. 103–252, title I, §124,

May 18, 1994, 108 Stat. 650.)

AMENDMENTS

1994—Pub. L. 103–252 substituted ‘‘to carry out this

chapter such sums as may be necessary for fiscal year

1995’’ for ‘‘$1,500,000 for fiscal year 1990, $3,000,000 for fiscal year 1991, and such sums as may be necessary for

fiscal years 1992, 1993, and 1994 for carrying out this

chapter’’.

1990—Pub. L. 101–501 substituted ‘‘are authorized’’ for

‘‘is authorized’’, inserted ‘‘, $3,000,000 for fiscal year

1991, and such sums as may be necessary for fiscal years

1992, 1993, and 1994’’ after ‘‘1990’’, and directed the substitution of ‘‘fiscal year’’ for ‘‘each of the fiscal years

1987, 1988, and 1989, and’’, which was executed by making the substitution for ‘‘each of the fiscal years 1987,

1988, 1989, and’’ to reflect the probable intent of Congress.

EFFECTIVE DATE OF 1994 AMENDMENT

Amendment by Pub. L. 103–252 effective May 18, 1994,

but not applicable to Head Start agencies and other recipients of financial assistance under the Head Start

Act (42 U.S.C. 9831 et seq.) until Oct. 1, 1994, see section

127 of Pub. L. 103–252, set out as a note under section

9832 of this title.

EFFECTIVE DATE OF 1990 AMENDMENT

Amendment by Pub. L. 101–501 effective Oct. 1, 1990,

see section 1001(a) of Pub. L. 101–501, set out as a note

under section 8621 of this title.

CHAPTER 116—EMERGENCY PLANNING AND

COMMUNITY RIGHT-TO-KNOW

SUBCHAPTER I—EMERGENCY PLANNING AND

NOTIFICATION

Sec.

11001. Establishment of State commissions, planning districts, and local committees.

11002. Substances and facilities covered and notification.

11003. Comprehensive emergency response plans.

11004. Emergency notification.

11005. Emergency training and review of emergency

systems.

Sec.

SUBCHAPTER II—REPORTING REQUIREMENTS

11021. Material safety data sheets.

11022. Emergency and hazardous chemical inventory

forms.

11023. Toxic chemical release forms.

SUBCHAPTER III—GENERAL PROVISIONS

11041. Relationship to other law.

11042. Trade secrets.

11043. Provision of information to health professionals, doctors, and nurses.

11044. Public availability of plans, data sheets,

forms, and followup notices.

11045. Enforcement.

11046. Civil actions.

11047. Exemption.

11048. Regulations.

11049. Definitions.

11050. Authorization of appropriations.

SUBCHAPTER I—EMERGENCY PLANNING

AND NOTIFICATION

§ 11001. Establishment of State commissions,

planning districts, and local committees

(a) Establishment of State emergency response

commissions

Not later than six months after October 17,

1986, the Governor of each State shall appoint a

State emergency response commission. The Governor may designate as the State emergency response commission one or more existing emergency response organizations that are Statesponsored or appointed. The Governor shall, to

the extent practicable, appoint persons to the

State emergency response commission who have

technical expertise in the emergency response

field. The State emergency response commission

shall appoint local emergency planning committees under subsection (c) of this section and

shall supervise and coordinate the activities of

such committees. The State emergency response

commission shall establish procedures for receiving and processing requests from the public

for information under section 11044 of this title,

including tier II information under section 11022

of this title. Such procedures shall include the

designation of an official to serve as coordinator

for information. If the Governor of any State

does not designate a State emergency response

commission within such period, the Governor

shall operate as the State emergency response

commission until the Governor makes such designation.

(b) Establishment of emergency planning districts

Not later than nine months after October 17,

1986, the State emergency response commission

shall designate emergency planning districts in

order to facilitate preparation and implementation of emergency plans. Where appropriate, the

State emergency response commission may designate existing political subdivisions or multijurisdictional planning organizations as such

districts. In emergency planning areas that involve more than one State, the State emergency

response commissions of all potentially affected

States may designate emergency planning districts and local emergency planning committees

by agreement. In making such designation, the

State emergency response commission shall in-
Page 7091 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11002

dicate which facilities subject to the requirements of this subchapter are within such emergency planning district.

(c) Establishment of local emergency planning

committees

Not later than 30 days after designation of

emergency planning districts or 10 months after

October 17, 1986, whichever is earlier, the State

emergency response commission shall appoint

members of a local emergency planning committee for each emergency planning district. Each

committee shall include, at a minimum, representatives from each of the following groups

or organizations: elected State and local officials; law enforcement, civil defense, firefighting, first aid, health, local environmental, hospital, and transportation personnel; broadcast

and print media; community groups; and owners

and operators of facilities subject to the requirements of this subchapter. Such committee shall

appoint a chairperson and shall establish rules

by which the committee shall function. Such

rules shall include provisions for public notification of committee activities, public meetings to

discuss the emergency plan, public comments,

response to such comments by the committee,

and distribution of the emergency plan. The

local emergency planning committee shall establish procedures for receiving and processing

requests from the public for information under

section 11044 of this title, including tier II information under section 11022 of this title. Such

procedures shall include the designation of an

official to serve as coordinator for information.

(d) Revisions

A State emergency response commission may

revise its designations and appointments under

subsections (b) and (c) of this section as it deems

appropriate. Interested persons may petition the

State emergency response commission to modify

the membership of a local emergency planning

committee.

(Pub. L. 99–499, title III, §301, Oct. 17, 1986, 100

Stat. 1729.)

EFFECTIVE DATE

Chapter effective Oct. 17, 1986, see section 4 of Pub. L.

99–499, set out as an Effective Date of 1986 Amendment

note under section 9601 of this title.

SHORT TITLE

Section 300(a) of title III of Pub. L. 99–499 provided

that: ‘‘This title [enacting this chapter] may be cited

as the ‘Emergency Planning and Community Right-ToKnow Act of 1986’.’’

EXECUTIVE ORDER NO. 12856

Ex. Ord. No. 12856, Aug. 3, 1993, 58 F.R. 41981, which

provided for Federal compliance with right-to-know

laws and pollution prevention requirements, was revoked by Ex. Ord. No. 13148, §901, Apr. 21, 2000, 65 F.R.

24604, formerly set out as a note under section 4321 of

this title.

§ 11002. Substances and facilities covered and notification

(a) Substances covered

(1) In general

A substance is subject to the requirements

of this subchapter if the substance is on the

list published under paragraph (2).

(2) List of extremely hazardous substances

Within 30 days after October 17, 1986, the Administrator shall publish a list of extremely

hazardous substances. The list shall be the

same as the list of substances published in November 1985 by the Administrator in Appendix

A of the ‘‘Chemical Emergency Preparedness

Program Interim Guidance’’.

(3) Thresholds

(A) At the time the list referred to in paragraph (2) is published the Administrator

shall—

(i) publish an interim final regulation establishing a threshold planning quantity for

each substance on the list, taking into account the criteria described in paragraph (4),

and

(ii) initiate a rulemaking in order to publish final regulations establishing a threshold planning quantity for each substance on

the list.

(B) The threshold planning quantities may,

at the Administrator’s discretion, be based on

classes of chemicals or categories of facilities.

(C) If the Administrator fails to publish an

interim final regulation establishing a threshold planning quantity for a substance within

30 days after October 17, 1986, the threshold

planning quantity for the substance shall be 2

pounds until such time as the Administrator

publishes regulations establishing a threshold

for the substance.

(4) Revisions

The Administrator may revise the list and

thresholds under paragraphs (2) and (3) from

time to time. Any revisions to the list shall

take into account the toxicity, reactivity, volatility, dispersability, combustability, or

flammability of a substance. For purposes of

the preceding sentence, the term ‘‘toxicity’’

shall include any short- or long-term health

effect which may result from a short-term exposure to the substance.

(b) Facilities covered

(1) Except as provided in section 11004 of this

title, a facility is subject to the requirements of

this subchapter if a substance on the list referred to in subsection (a) of this section is

present at the facility in an amount in excess of

the threshold planning quantity established for

such substance.

(2) For purposes of emergency planning, a Governor or a State emergency response commission may designate additional facilities which

shall be subject to the requirements of this subchapter, if such designation is made after public

notice and opportunity for comment. The Governor or State emergency response commission

shall notify the facility concerned of any facility designation under this paragraph.

(c) Emergency planning notification

Not later than seven months after October 17,

1986, the owner or operator of each facility subject to the requirements of this subchapter by

reason of subsection (b)(1) of this section shall

notify the State emergency response commission for the State in which such facility is located that such facility is subject to the require-
§ 11003 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 7092

ments of this subchapter. Thereafter, if a substance on the list of extremely hazardous substances referred to in subsection (a) of this section first becomes present at such facility in excess of the threshold planning quantity established for such substance, or if there is a revision of such list and the facility has present a

substance on the revised list in excess of the

threshold planning quantity established for such

substance, the owner or operator of the facility

shall notify the State emergency response commission and the local emergency planning committee within 60 days after such acquisition or

revision that such facility is subject to the requirements of this subchapter.

(d) Notification of Administrator

The State emergency response commission

shall notify the Administrator of facilities subject to the requirements of this subchapter by

notifying the Administrator of—

(1) each notification received from a facility

under subsection (c) of this section, and

(2) each facility designated by the Governor

or State emergency response commission

under subsection (b)(2) of this section.

(Pub. L. 99–499, title III, §302, Oct. 17, 1986, 100

Stat. 1730.)

§ 11003. Comprehensive emergency response

plans

(a) Plan required

Each local emergency planning committee

shall complete preparation of an emergency plan

in accordance with this section not later than

two years after October 17, 1986. The committee

shall review such plan once a year, or more frequently as changed circumstances in the community or at any facility may require.

(b) Resources

Each local emergency planning committee

shall evaluate the need for resources necessary

to develop, implement, and exercise the emergency plan, and shall make recommendations

with respect to additional resources that may be

required and the means for providing such additional resources.

(c) Plan provisions

Each emergency plan shall include (but is not

limited to) each of the following:

(1) Identification of facilities subject to the

requirements of this subchapter that are within the emergency planning district, identification of routes likely to be used for the transportation of substances on the list of extremely hazardous substances referred to in

section 11002(a) of this title, and identification

of additional facilities contributing or subjected to additional risk due to their proximity to facilities subject to the requirements of

this subchapter, such as hospitals or natural

gas facilities.

(2) Methods and procedures to be followed by

facility owners and operators and local emergency and medical personnel to respond to any

release of such substances.

(3) Designation of a community emergency

coordinator and facility emergency coordinators, who shall make determinations necessary to implement the plan.

(4) Procedures providing reliable, effective,

and timely notification by the facility emergency coordinators and the community emergency coordinator to persons designated in the

emergency plan, and to the public, that a release has occurred (consistent with the emergency notification requirements of section

11004 of this title).

(5) Methods for determining the occurrence

of a release, and the area or population likely

to be affected by such release.

(6) A description of emergency equipment

and facilities in the community and at each

facility in the community subject to the requirements of this subchapter, and an identification of the persons responsible for such

equipment and facilities.

(7) Evacuation plans, including provisions

for a precautionary evacuation and alternative traffic routes.

(8) Training programs, including schedules

for training of local emergency response and

medical personnel.

(9) Methods and schedules for exercising the

emergency plan.

(d) Providing of information

For each facility subject to the requirements

of this subchapter:

(1) Within 30 days after establishment of a

local emergency planning committee for the

emergency planning district in which such facility is located, or within 11 months after October 17, 1986, whichever is earlier, the owner

or operator of the facility shall notify the

emergency planning committee (or the Governor if there is no committee) of a facility

representative who will participate in the

emergency planning process as a facility emergency coordinator.

(2) The owner or operator of the facility

shall promptly inform the emergency planning

committee of any relevant changes occurring

at such facility as such changes occur or are

expected to occur.

(3) Upon request from the emergency planning committee, the owner or operator of the

facility shall promptly provide information to

such committee necessary for developing and

implementing the emergency plan.

(e) Review by State emergency response commission

After completion of an emergency plan under

subsection (a) of this section for an emergency

planning district, the local emergency planning

committee shall submit a copy of the plan to

the State emergency response commission of

each State in which such district is located. The

commission shall review the plan and make recommendations to the committee on revisions of

the plan that may be necessary to ensure coordination of such plan with emergency response

plans of other emergency planning districts. To

the maximum extent practicable, such review

shall not delay implementation of such plan.

(f) Guidance documents

The national response team, as established

pursuant to the National Contingency Plan as

established under section 9605 of this title, shall

publish guidance documents for preparation and
Page 7093 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11004

implementation of emergency plans. Such documents shall be published not later than five

months after October 17, 1986.

(g) Review of plans by regional response teams

The regional response teams, as established

pursuant to the National Contingency Plan as

established under section 9605 of this title, may

review and comment upon an emergency plan or

other issues related to preparation, implementation, or exercise of such a plan upon request of

a local emergency planning committee. Such review shall not delay implementation of the plan.

(Pub. L. 99–499, title III, §303, Oct. 17, 1986, 100

Stat. 1731.)

§ 11004. Emergency notification

(a) Types of releases

(1) 11002(a) substance which requires CERCLA

notice

If a release of an extremely hazardous substance referred to in section 11002(a) of this

title occurs from a facility at which a hazardous chemical is produced, used, or stored, and

such release requires a notification under section 103(a) of the Comprehensive Environmental Response, Compensation, and Liability

Act of 1980 [42 U.S.C. 9603(a)] (hereafter in this

section referred to as ‘‘CERCLA’’) (42 U.S.C.

9601 et seq.), the owner or operator of the facility shall immediately provide notice as described in subsection (b) of this section.

(2) Other 11002(a) substance

If a release of an extremely hazardous substance referred to in section 11002(a) of this

title occurs from a facility at which a hazardous chemical is produced, used, or stored, and

such release is not subject to the notification

requirements under section 103(a) of CERCLA

[42 U.S.C. 9603(a)], the owner or operator of the

facility shall immediately provide notice as

described in subsection (b) of this section, but

only if the release—

(A) is not a federally permitted release as

defined in section 101(10) of CERCLA [42

U.S.C. 9601(10)],

(B) is in an amount in excess of a quantity

which the Administrator has determined (by

regulation) requires notice, and

(C) occurs in a manner which would require notification under section 103(a) of

CERCLA [42 U.S.C. 9603(a)].

Unless and until superseded by regulations establishing a quantity for an extremely hazardous substance described in this paragraph, a

quantity of 1 pound shall be deemed that quantity the release of which requires notice as described in subsection (b) of this section.

(3) Non-11002(a) substance which requires

CERCLA notice

If a release of a substance which is not on

the list referred to in section 11002(a) of this

title occurs at a facility at which a hazardous

chemical is produced, used, or stored, and such

release requires notification under section

103(a) of CERCLA [42 U.S.C. 9603(a)], the owner

or operator shall provide notice as follows:

(A) If the substance is one for which a reportable quantity has been established under

section 102(a) of CERCLA [42 U.S.C. 9602(a)],

the owner or operator shall provide notice as

described in subsection (b) of this section.

(B) If the substance is one for which a reportable quantity has not been established

under section 102(a) of CERCLA [42 U.S.C.

9602(a)]—

(i) Until April 30, 1988, the owner or operator shall provide, for releases of one

pound or more of the substance, the same

notice to the community emergency coordinator for the local emergency planning

committee, at the same time and in the

same form, as notice is provided to the National Response Center under section

103(a) of CERCLA [42 U.S.C. 9603(a)].

(ii) On and after April 30, 1988, the owner

or operator shall provide, for releases of

one pound or more of the substance, the

notice as described in subsection (b) of this

section.

(4) Exempted releases

This section does not apply to any release

which results in exposure to persons solely

within the site or sites on which a facility is

located.

(b) Notification

(1) Recipients of notice

Notice required under subsection (a) of this

section shall be given immediately after the

release by the owner or operator of a facility

(by such means as telephone, radio, or in person) to the community emergency coordinator

for the local emergency planning committees,

if established pursuant to section 11001(c) of

this title, for any area likely to be affected by

the release and to the State emergency planning commission of any State likely to be affected by the release. With respect to transportation of a substance subject to the requirements of this section, or storage incident

to such transportation, the notice requirements of this section with respect to a release

shall be satisfied by dialing 911 or, in the absence of a 911 emergency telephone number,

calling the operator.

(2) Contents

Notice required under subsection (a) of this

section shall include each of the following (to

the extent known at the time of the notice and

so long as no delay in responding to the emergency results):

(A) The chemical name or identity of any

substance involved in the release.

(B) An indication of whether the substance

is on the list referred to in section 11002(a) of

this title.

(C) An estimate of the quantity of any

such substance that was released into the

environment.

(D) The time and duration of the release.

(E) The medium or media into which the

release occurred.

(F) Any known or anticipated acute or

chronic health risks associated with the

emergency and, where appropriate, advice

regarding medical attention necessary for

exposed individuals.

(G) Proper precautions to take as a result

of the release, including evacuation (unless
§ 11005 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 7094

such information is readily available to the

community emergency coordinator pursuant

to the emergency plan).

(H) The name and telephone number of the

person or persons to be contacted for further

information.

(c) Followup emergency notice

As soon as practicable after a release which

requires notice under subsection (a) of this section, such owner or operator shall provide a

written followup emergency notice (or notices,

as more information becomes available) setting

forth and updating the information required

under subsection (b) of this section, and including additional information with respect to—

(1) actions taken to respond to and contain

the release,

(2) any known or anticipated acute or chronic health risks associated with the release, and

(3) where appropriate, advice regarding medical attention necessary for exposed individuals.

(d) Transportation exemption not applicable

The exemption provided in section 11047 of this

title (relating to transportation) does not apply

to this section.

(Pub. L. 99–499, title III, §304, Oct. 17, 1986, 100

Stat. 1733.)

REFERENCES IN TEXT

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and CERCLA, referred to in subsec. (a)(1), (3), is Pub. L. 96–510, Dec. 11,

1980, 94 Stat. 2767, as amended, which is classified principally to chapter 103 (§9601 et seq.) of this title. For

complete classification of this Act to the Code, see

Short Title note set out under section 9601 of this title

and Tables.

§ 11005. Emergency training and review of emergency systems

(a) Emergency training

(1) Programs

Officials of the United States Government

carrying out existing Federal programs for

emergency training are authorized to specifically provide training and education programs

for Federal, State, and local personnel in hazard mitigation, emergency preparedness, fire

prevention and control, disaster response,

long-term disaster recovery, national security,

technological and natural hazards, and emergency processes. Such programs shall provide

special emphasis for such training and education with respect to hazardous chemicals.

(2) State and local program support

There is authorized to be appropriated to the

Federal Emergency Management Agency for

each of the fiscal years 1987, 1988, 1989, and

1990, $5,000,000 for making grants to support

programs of State and local governments, and

to support university-sponsored programs,

which are designed to improve emergency

planning, preparedness, mitigation, response,

and recovery capabilities. Such programs shall

provide special emphasis with respect to emergencies associated with hazardous chemicals.

Such grants may not exceed 80 percent of the

cost of any such program. The remaining 20

percent of such costs shall be funded from nonFederal sources.

(3) Other programs

Nothing in this section shall affect the

availability of appropriations to the Federal

Emergency Management Agency for any programs carried out by such agency other than

the programs referred to in paragraph (2).

(b) Review of emergency systems

(1) Review

The Administrator shall initiate, not later

than 30 days after October 17, 1986, a review of

emergency systems for monitoring, detecting,

and preventing releases of extremely hazardous substances at representative domestic facilities that produce, use, or store extremely

hazardous substances. The Administrator may

select representative extremely hazardous

substances from the substances on the list referred to in section 11002(a) of this title for the

purposes of this review. The Administrator

shall report interim findings to the Congress

not later than seven months after October 17,

1986, and issue a final report of findings and

recommendations to the Congress not later

than 18 months after October 17, 1986. Such report shall be prepared in consultation with the

States and appropriate Federal agencies.

(2) Report

The report required by this subsection shall

include the Administrator’s findings regarding

each of the following:

(A) The status of current technological capabilities to (i) monitor, detect, and prevent,

in a timely manner, significant releases of

extremely hazardous substances, (ii) determine the magnitude and direction of the

hazard posed by each release, (iii) identify

specific substances, (iv) provide data on the

specific chemical composition of such releases, and (v) determine the relative concentrations of the constituent substances.

(B) The status of public emergency alert

devices or systems for providing timely and

effective public warning of an accidental release of extremely hazardous substances into

the environment, including releases into the

atmosphere, surface water, or groundwater

from facilities that produce, store, or use

significant quantities of such extremely hazardous substances.

(C) The technical and economic feasibility

of establishing, maintaining, and operating

perimeter alert systems for detecting releases of such extremely hazardous substances into the atmosphere, surface water,

or groundwater, at facilities that manufacture, use, or store significant quantities of

such substances.

(3) Recommendations

The report required by this subsection shall

also include the Administrator’s recommendations for—

(A) initiatives to support the development

of new or improved technologies or systems

that would facilitate the timely monitoring,

detection, and prevention of releases of extremely hazardous substances, and
Page 7095 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11021

(B) improving devices or systems for effectively alerting the public in a timely manner, in the event of an accidental release of

such extremely hazardous substances.

(Pub. L. 99–499, title III, §305, Oct. 17, 1986, 100

Stat. 1735.)

TRANSFER OF FUNCTIONS

For transfer of all functions, personnel, assets, components, authorities, grant programs, and liabilities of

the Federal Emergency Management Agency, including

the functions of the Under Secretary for Federal Emergency Management relating thereto, to the Federal

Emergency Management Agency, see section 315(a)(1)

of Title 6, Domestic Security.

For transfer of functions, personnel, assets, and liabilities of the Federal Emergency Management Agency, including the functions of the Director of the Federal Emergency Management Agency relating thereto,

to the Secretary of Homeland Security, and for treatment of related references, see former section 313(1) and

sections 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set

out as a note under section 542 of Title 6.

SUBCHAPTER II—REPORTING

REQUIREMENTS

§ 11021. Material safety data sheets

(a) Basic requirement

(1) Submission of MSDS or list

The owner or operator of any facility which

is required to prepare or have available a material safety data sheet for a hazardous chemical under the Occupational Safety and Health

Act of 1970 [29 U.S.C. 651 et seq.] and regulations promulgated under that Act shall submit

a material safety data sheet for each such

chemical, or a list of such chemicals as described in paragraph (2), to each of the following:

(A) The appropriate local emergency planning committee.

(B) The State emergency response commission.

(C) The fire department with jurisdiction

over the facility.

(2) Contents of list

(A) The list of chemicals referred to in paragraph (1) shall include each of the following:

(i) A list of the hazardous chemicals for

which a material safety data sheet is required under the Occupational Safety and

Health Act of 1970 [29 U.S.C. 651 et seq.] and

regulations promulgated under that Act,

grouped in categories of health and physical

hazards as set forth under such Act and regulations promulgated under such Act, or in

such other categories as the Administrator

may prescribe under subparagraph (B).

(ii) The chemical name or the common

name of each such chemical as provided on

the material safety data sheet.

(iii) Any hazardous component of each

such chemical as provided on the material

safety data sheet.

(B) For purposes of the list under this paragraph, the Administrator may modify the categories of health and physical hazards as set

forth under the Occupational Safety and

Health Act of 1970 [29 U.S.C. 651 et seq.] and

regulations promulgated under that Act by requiring information to be reported in terms of

groups of hazardous chemicals which present

similar hazards in an emergency.

(3) Treatment of mixtures

An owner or operator may meet the requirements of this section with respect to a hazardous chemical which is a mixture by doing one

of the following:

(A) Submitting a material safety data

sheet for, or identifying on a list, each element or compound in the mixture which is a

hazardous chemical. If more than one mixture has the same element or compound,

only one material safety data sheet, or one

listing, of the element or compound is necessary.

(B) Submitting a material safety data

sheet for, or identifying on a list, the mixture itself.

(b) Thresholds

The Administrator may establish threshold

quantities for hazardous chemicals below which

no facility shall be subject to the provisions of

this section. The threshold quantities may, in

the Administrator’s discretion, be based on

classes of chemicals or categories of facilities.

(c) Availability of MSDS on request

(1) To local emergency planning committee

If an owner or operator of a facility submits

a list of chemicals under subsection (a)(1) of

this section, the owner or operator, upon request by the local emergency planning committee, shall submit the material safety data

sheet for any chemical on the list to such

committee.

(2) To public

A local emergency planning committee,

upon request by any person, shall make available a material safety data sheet to the person

in accordance with section 11044 of this title.

If the local emergency planning committee

does not have the requested material safety

data sheet, the committee shall request the

sheet from the facility owner or operator and

then make the sheet available to the person in

accordance with section 11044 of this title.

(d) Initial submission and updating

(1) The initial material safety data sheet or

list required under this section with respect to a

hazardous chemical shall be provided before the

later of—

(A) 12 months after October 17, 1986, or

(B) 3 months after the owner or operator of

a facility is required to prepare or have available a material safety data sheet for the chemical under the Occupational Safety and Health

Act of 1970 [29 U.S.C. 651 et seq.] and regulations promulgated under that Act.

(2) Within 3 months following discovery by an

owner or operator of significant new information concerning an aspect of a hazardous chemical for which a material safety data sheet was

previously submitted to the local emergency

planning committee under subsection (a) of this

section, a revised sheet shall be provided to such

person.
§ 11022 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 7096

(e) ‘‘Hazardous chemical’’ defined

For purposes of this section, the term ‘‘hazardous chemical’’ has the meaning given such term

by section 1910.1200(c) of title 29 of the Code of

Federal Regulations, except that such term does

not include the following:

(1) Any food, food additive, color additive,

drug, or cosmetic regulated by the Food and

Drug Administration.

(2) Any substance present as a solid in any

manufactured item to the extent exposure to

the substance does not occur under normal

conditions of use.

(3) Any substance to the extent it is used for

personal, family, or household purposes, or is

present in the same form and concentration as

a product packaged for distribution and use by

the general public.

(4) Any substance to the extent it is used in

a research laboratory or a hospital or other

medical facility under the direct supervision

of a technically qualified individual.

(5) Any substance to the extent it is used in

routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer.

(Pub. L. 99–499, title III, §311, Oct. 17, 1986, 100

Stat. 1736.)

REFERENCES IN TEXT

The Occupational Safety and Health Act of 1970, referred to in subsecs. (a)(1), (2)(A)(i), (B) and (d)(1)(B), is

Pub. L. 91–596, Dec. 29, 1970, 84 Stat. 1590, as amended,

which is classified principally to chapter 15 (§651 et

seq.) of Title 29, Labor. For complete classification of

this Act to the Code, see Short Title note set out under

section 651 of Title 29 and Tables.

§ 11022. Emergency and hazardous chemical

inventory forms

(a) Basic requirement

(1) The owner or operator of any facility which

is required to prepare or have available a material safety data sheet for a hazardous chemical

under the Occupational Safety and Health Act

of 1970 [29 U.S.C. 651 et seq.] and regulations promulgated under that Act shall prepare and submit an emergency and hazardous chemical inventory form (hereafter in this chapter referred

to as an ‘‘inventory form’’) to each of the following:

(A) The appropriate local emergency planning committee.

(B) The State emergency response commission.

(C) The fire department with jurisdiction

over the facility.

(2) The inventory form containing tier I information (as described in subsection (d)(1) of this

section) shall be submitted on or before March 1,

1988, and annually thereafter on March 1, and

shall contain data with respect to the preceding

calendar year. The preceding sentence does not

apply if an owner or operator provides, by the

same deadline and with respect to the same calendar year, tier II information (as described in

subsection (d)(2) of this section) to the recipients described in paragraph (1).

(3) An owner or operator may meet the requirements of this section with respect to a hazardous chemical which is a mixture by doing one

of the following:

(A) Providing information on the inventory

form on each element or compound in the mixture which is a hazardous chemical. If more

than one mixture has the same element or

compound, only one listing on the inventory

form for the element or compound at the facility is necessary.

(B) Providing information on the inventory

form on the mixture itself.

(b) Thresholds

The Administrator may establish threshold

quantities for hazardous chemicals covered by

this section below which no facility shall be subject to the provisions of this section. The

threshold quantities may, in the Administrator’s discretion, be based on classes of chemicals

or categories of facilities.

(c) Hazardous chemicals covered

A hazardous chemical subject to the requirements of this section is any hazardous chemical

for which a material safety data sheet or a listing is required under section 11021 of this title.

(d) Contents of form

(1) Tier I information

(A) Aggregate information by category

An inventory form shall provide the information described in subparagraph (B) in aggregate terms for hazardous chemicals in

categories of health and physical hazards as

set forth under the Occupational Safety and

Health Act of 1970 [29 U.S.C. 651 et seq.] and

regulations promulgated under that Act.

(B) Required information

The information referred to in subparagraph (A) is the following:

(i) An estimate (in ranges) of the maximum amount of hazardous chemicals in

each category present at the facility at

any time during the preceding calendar

year.

(ii) An estimate (in ranges) of the average daily amount of hazardous chemicals

in each category present at the facility

during the preceding calendar year.

(iii) The general location of hazardous

chemicals in each category.

(C) Modifications

For purposes of reporting information

under this paragraph, the Administrator

may—

(i) modify the categories of health and

physical hazards as set forth under the Occupational Safety and Health Act of 1970

[29 U.S.C. 651 et seq.] and regulations promulgated under that Act by requiring information to be reported in terms of

groups of hazardous chemicals which

present similar hazards in an emergency,

or

(ii) require reporting on individual hazardous chemicals of special concern to

emergency response personnel.

(2) Tier II information

An inventory form shall provide the following additional information for each hazardous
Page 7097 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11022

chemical present at the facility, but only upon

request and in accordance with subsection (e)

of this section:

(A) The chemical name or the common

name of the chemical as provided on the material safety data sheet.

(B) An estimate (in ranges) of the maximum amount of the hazardous chemical

present at the facility at any time during

the preceding calendar year.

(C) An estimate (in ranges) of the average

daily amount of the hazardous chemical

present at the facility during the preceding

calendar year.

(D) A brief description of the manner of

storage of the hazardous chemical.

(E) The location at the facility of the hazardous chemical.

(F) An indication of whether the owner

elects to withhold location information of a

specific hazardous chemical from disclosure

to the public under section 11044 of this title.

(e) Availability of tier II information

(1) Availability to State commissions, local

committees, and fire departments

Upon request by a State emergency planning

commission, a local emergency planning committee, or a fire department with jurisdiction

over the facility, the owner or operator of a facility shall provide tier II information, as described in subsection (d) of this section, to the

person making the request. Any such request

shall be with respect to a specific facility.

(2) Availability to other State and local officials

A State or local official acting in his or her

official capacity may have access to tier II information by submitting a request to the

State emergency response commission or the

local emergency planning committee. Upon receipt of a request for tier II information, the

State commission or local committee shall,

pursuant to paragraph (1), request the facility

owner or operator for the tier II information

and make available such information to the

official.

(3) Availability to public

(A) In general

Any person may request a State emergency response commission or local emergency planning committee for tier II information relating to the preceding calendar

year with respect to a facility. Any such request shall be in writing and shall be with

respect to a specific facility.

(B) Automatic provision of information to

public

Any tier II information which a State

emergency response commission or local

emergency planning committee has in its

possession shall be made available to a person making a request under this paragraph

in accordance with section 11044 of this title.

If the State emergency response commission

or local emergency planning committee does

not have the tier II information in its possession, upon a request for tier II information the State emergency response commission or local emergency planning committee

shall, pursuant to paragraph (1), request the

facility owner or operator for tier II information with respect to a hazardous chemical

which a facility has stored in an amount in

excess of 10,000 pounds present at the facility

at any time during the preceding calendar

year and make such information available in

accordance with section 11044 of this title to

the person making the request.

(C) Discretionary provision of information to

public

In the case of tier II information which is

not in the possession of a State emergency

response commission or local emergency

planning committee and which is with respect to a hazardous chemical which a facility has stored in an amount less than 10,000

pounds present at the facility at any time

during the preceding calendar year, a request from a person must include the general need for the information. The State

emergency response commission or local

emergency planning committee may, pursuant to paragraph (1), request the facility

owner or operator for the tier II information

on behalf of the person making the request.

Upon receipt of any information requested

on behalf of such person, the State emergency response commission or local emergency planning committee shall make the

information available in accordance with

section 11044 of this title to the person.

(D) Response in 45 days

A State emergency response commission

or local emergency planning committee

shall respond to a request for tier II information under this paragraph no later than 45

days after the date of receipt of the request.

(f) Fire department access

Upon request to an owner or operator of a facility which files an inventory form under this

section by the fire department with jurisdiction

over the facility, the owner or operator of the

facility shall allow the fire department to conduct an on-site inspection of the facility and

shall provide to the fire department specific location information on hazardous chemicals at

the facility.

(g) Format of forms

The Administrator shall publish a uniform format for inventory forms within three months

after October 17, 1986. If the Administrator does

not publish such forms, owners and operators of

facilities subject to the requirements of this section shall provide the information required

under this section by letter.

(Pub. L. 99–499, title III, §312, Oct. 17, 1986, 100

Stat. 1738.)

REFERENCES IN TEXT

The Occupational Safety and Health Act of 1970, referred to in subsecs. (a)(1) and (d)(1)(A), (C)(i), is Pub.

L. 91–596, Dec. 29, 1970, 84 Stat. 1590, as amended, which

is classified principally to chapter 15 (§651 et seq.) of

Title 29, Labor. For complete classification of this Act

to the Code, see Short Title note set out under section

651 of Title 29 and Tables.
§ 11023 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 7098

§ 11023. Toxic chemical release forms

(a) Basic requirement

The owner or operator of a facility subject to

the requirements of this section shall complete

a toxic chemical release form as published under

subsection (g) of this section for each toxic

chemical listed under subsection (c) of this section that was manufactured, processed, or otherwise used in quantities exceeding the toxic

chemical threshold quantity established by subsection (f) of this section during the preceding

calendar year at such facility. Such form shall

be submitted to the Administrator and to an official or officials of the State designated by the

Governor on or before July 1, 1988, and annually

thereafter on July 1 and shall contain data reflecting releases during the preceding calendar

year.

(b) Covered owners and operators of facilities

(1) In general

(A) The requirements of this section shall

apply to owners and operators of facilities

that have 10 or more full-time employees and

that are in Standard Industrial Classification

Codes 20 through 39 (as in effect on July 1,

1985) and that manufactured, processed, or

otherwise used a toxic chemical listed under

subsection (c) of this section in excess of the

quantity of that toxic chemical established

under subsection (f) of this section during the

calendar year for which a release form is required under this section.

(B) The Administrator may add or delete

Standard Industrial Classification Codes for

purposes of subparagraph (A), but only to the

extent necessary to provide that each Standard Industrial Code to which this section applies is relevant to the purposes of this section.

(C) For purposes of this section—

(i) The term ‘‘manufacture’’ means to

produce, prepare, import, or compound a

toxic chemical.

(ii) The term ‘‘process’’ means the preparation of a toxic chemical, after its manufacture, for distribution in commerce—

(I) in the same form or physical state as,

or in a different form or physical state

from, that in which it was received by the

person so preparing such chemical, or

(II) as part of an article containing the

toxic chemical.

(2) Discretionary application to additional facilities

The Administrator, on his own motion or at

the request of a Governor of a State (with regard to facilities located in that State), may

apply the requirements of this section to the

owners and operators of any particular facility

that manufactures, processes, or otherwise

uses a toxic chemical listed under subsection

(c) of this section if the Administrator determines that such action is warranted on the

basis of toxicity of the toxic chemical, proximity to other facilities that release the toxic

chemical or to population centers, the history

of releases of such chemical at such facility,

or such other factors as the Administrator

deems appropriate.

(c) Toxic chemicals covered

The toxic chemicals subject to the requirements of this section are those chemicals on the

list in Committee Print Number 99–169 of the

Senate Committee on Environment and Public

Works, titled ‘‘Toxic Chemicals Subject to Section 313 of the Emergency Planning and Community Right-To-Know Act of 1986’’ [42 U.S.C. 11023]

(including any revised version of the list as may

be made pursuant to subsection (d) or (e) of this

section).

(d) Revisions by Administrator

(1) In general

The Administrator may by rule add or delete

a chemical from the list described in subsection (c) of this section at any time.

(2) Additions

A chemical may be added if the Administrator determines, in his judgment, that there

is sufficient evidence to establish any one of

the following:

(A) The chemical is known to cause or can

reasonably be anticipated to cause significant adverse acute human health effects at

concentration levels that are reasonably

likely to exist beyond facility site boundaries as a result of continuous, or frequently

recurring, releases.

(B) The chemical is known to cause or can

reasonably be anticipated to cause in humans—

(i) cancer or teratogenic effects, or

(ii) serious or irreversible—

(I) reproductive dysfunctions,

(II) neurological disorders,

(III) heritable genetic mutations, or

(IV) other chronic health effects.

(C) The chemical is known to cause or can

reasonably be anticipated to cause, because

of—

(i) its toxicity,

(ii) its toxicity and persistence in the environment, or

(iii) its toxicity and tendency to bioaccumulate in the environment,

a significant adverse effect on the environment of sufficient seriousness, in the judgment of the Administrator, to warrant reporting under this section. The number of

chemicals included on the list described in

subsection (c) of this section on the basis of

the preceding sentence may constitute in

the aggregate no more than 25 percent of the

total number of chemicals on the list.

A determination under this paragraph shall be

based on generally accepted scientific principles or laboratory tests, or appropriately designed and conducted epidemiological or other

population studies, available to the Administrator.

(3) Deletions

A chemical may be deleted if the Administrator determines there is not sufficient evidence to establish any of the criteria described

in paragraph (2).

(4) Effective date

Any revision made on or after January 1 and

before December 1 of any calendar year shall
Page 7099 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11023

1So in original. Probably should be ‘‘calendar’’.

take effect beginning with the next calendar

year. Any revision made on or after December

1 of any calendar year and before January 1 of

the next calender 1 year shall take effect beginning with the calendar year following such

next calendar year.

(e) Petitions

(1) In general

Any person may petition the Administrator

to add or delete a chemical from the list described in subsection (c) of this section on the

basis of the criteria in subparagraph (A) or (B)

of subsection (d)(2) of this section. Within 180

days after receipt of a petition, the Administrator shall take one of the following actions:

(A) Initiate a rulemaking to add or delete

the chemical to the list, in accordance with

subsection (d)(2) or (d)(3) of this section.

(B) Publish an explanation of why the petition is denied.

(2) Governor petitions

A State Governor may petition the Administrator to add or delete a chemical from the

list described in subsection (c) of this section

on the basis of the criteria in subparagraph

(A), (B), or (C) of subsection (d)(2) of this section. In the case of such a petition from a

State Governor to delete a chemical, the petition shall be treated in the same manner as a

petition received under paragraph (1) to delete

a chemical. In the case of such a petition from

a State Governor to add a chemical, the chemical will be added to the list within 180 days

after receipt of the petition, unless the Administrator—

(A) initiates a rulemaking to add the

chemical to the list, in accordance with subsection (d)(2) of this section, or

(B) publishes an explanation of why the

Administrator believes the petition does not

meet the requirements of subsection (d)(2) of

this section for adding a chemical to the

list.

(f) Threshold for reporting

(1) Toxic chemical threshold amount

The threshold amounts for purposes of reporting toxic chemicals under this section are

as follows:

(A) With respect to a toxic chemical used

at a facility, 10,000 pounds of the toxic chemical per year.

(B) With respect to a toxic chemical manufactured or processed at a facility—

(i) For the toxic chemical release form

required to be submitted under this section on or before July 1, 1988, 75,000 pounds

of the toxic chemical per year.

(ii) For the form required to be submitted on or before July 1, 1989, 50,000 pounds

of the toxic chemical per year.

(iii) For the form required to be submitted on or before July 1, 1990, and for each

form thereafter, 25,000 pounds of the toxic

chemical per year.

(2) Revisions

The Administrator may establish a threshold amount for a toxic chemical different from

the amount established by paragraph (1). Such

revised threshold shall obtain reporting on a

substantial majority of total releases of the

chemical at all facilities subject to the requirements of this section. The amounts established under this paragraph may, at the

Administrator’s discretion, be based on classes

of chemicals or categories of facilities.

(g) Form

(1) Information required

Not later than June 1, 1987, the Administrator shall publish a uniform toxic chemical

release form for facilities covered by this section. If the Administrator does not publish

such a form, owners and operators of facilities

subject to the requirements of this section

shall provide the information required under

this subsection by letter postmarked on or before the date on which the form is due. Such

form shall—

(A) provide for the name and location of,

and principal business activities at, the facility;

(B) include an appropriate certification,

signed by a senior official with management

responsibility for the person or persons completing the report, regarding the accuracy

and completeness of the report; and

(C) provide for submission of each of the

following items of information for each listed toxic chemical known to be present at the

facility:

(i) Whether the toxic chemical at the facility is manufactured, processed, or

otherwise used, and the general category

or categories of use of the chemical.

(ii) An estimate of the maximum

amounts (in ranges) of the toxic chemical

present at the facility at any time during

the preceding calendar year.

(iii) For each wastestream, the waste

treatment or disposal methods employed,

and an estimate of the treatment efficiency typically achieved by such methods

for that wastestream.

(iv) The annual quantity of the toxic

chemical entering each environmental medium.

(2) Use of available data

In order to provide the information required

under this section, the owner or operator of a

facility may use readily available data (including monitoring data) collected pursuant

to other provisions of law, or, where such data

are not readily available, reasonable estimates

of the amounts involved. Nothing in this section requires the monitoring or measurement

of the quantities, concentration, or frequency

of any toxic chemical released into the environment beyond that monitoring and measurement required under other provisions of

law or regulation. In order to assure consistency, the Administrator shall require that

data be expressed in common units.

(h) Use of release form

The release forms required under this section

are intended to provide information to the Federal, State, and local governments and the public, including citizens of communities surround-
§ 11023 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 7100

ing covered facilities. The release form shall be

available, consistent with section 11044(a) of this

title, to inform persons about releases of toxic

chemicals to the environment; to assist governmental agencies, researchers, and other persons

in the conduct of research and data gathering;

to aid in the development of appropriate regulations, guidelines, and standards; and for other

similar purposes.

(i) Modifications in reporting frequency

(1) In general

The Administrator may modify the frequency of submitting a report under this section, but the Administrator may not modify

the frequency to be any more often than annually. A modification may apply, either nationally or in a specific geographic area, to the following:

(A) All toxic chemical release forms required under this section.

(B) A class of toxic chemicals or a category of facilities.

(C) A specific toxic chemical.

(D) A specific facility.

(2) Requirements

A modification may be made under paragraph (1) only if the Administrator—

(A) makes a finding that the modification

is consistent with the provisions of subsection (h) of this section, based on—

(i) experience from previously submitted

toxic chemical release forms, and

(ii) determinations made under paragraph (3), and

(B) the finding is made by a rulemaking in

accordance with section 553 of title 5.

(3) Determinations

The Administrator shall make the following

determinations with respect to a proposed

modification before making a modification

under paragraph (1):

(A) The extent to which information relating to the proposed modification provided on

the toxic chemical release forms has been

used by the Administrator or other agencies

of the Federal Government, States, local

governments, health professionals, and the

public.

(B) The extent to which the information is

(i) readily available to potential users from

other sources, such as State reporting programs, and (ii) provided to the Administrator under another Federal law or through

a State program.

(C) The extent to which the modification

would impose additional and unreasonable

burdens on facilities subject to the reporting

requirements under this section.

(4) 5-year review

Any modification made under this subsection shall be reviewed at least once every 5

years. Such review shall examine the modification and ensure that the requirements of

paragraphs (2) and (3) still justify continuation of the modification. Any change to a

modification reviewed under this paragraph

shall be made in accordance with this subsection.

(5) Notification to Congress

The Administrator shall notify Congress of

an intention to initiate a rulemaking for a

modification under this subsection. After such

notification, the Administrator shall delay

initiation of the rulemaking for at least 12

months, but no more than 24 months, after the

date of such notification.

(6) Judicial review

In any judicial review of a rulemaking which

establishes a modification under this subsection, a court may hold unlawful and set

aside agency action, findings, and conclusions

found to be unsupported by substantial evidence.

(7) Applicability

A modification under this subsection may

apply to a calendar year or other reporting period beginning no earlier than January 1, 1993.

(8) Effective date

Any modification made on or after January

1 and before December 1 of any calendar year

shall take effect beginning with the next calendar year. Any modification made on or after

December 1 of any calendar year and before

January 1 of the next calendar year shall take

effect beginning with the calendar year following such next calendar year.

(j) EPA management of data

The Administrator shall establish and maintain in a computer data base a national toxic

chemical inventory based on data submitted to

the Administrator under this section. The Administrator shall make these data accessible by

computer telecommunication and other means

to any person on a cost reimbursable basis.

(k) Report

Not later than June 30, 1991, the Comptroller

General, in consultation with the Administrator

and appropriate officials in the States, shall

submit to the Congress a report including each

of the following:

(1) A description of the steps taken by the

Administrator and the States to implement

the requirements of this section, including

steps taken to make information collected

under this section available to and accessible

by the public.

(2) A description of the extent to which the

information collected under this section has

been used by the Environmental Protection

Agency, other Federal agencies, the States,

and the public, and the purposes for which the

information has been used.

(3) An identification and evaluation of options for modifications to the requirements of

this section for the purpose of making information collected under this section more useful.

(l) Mass balance study

(1) In general

The Administrator shall arrange for a mass

balance study to be carried out by the National Academy of Sciences using mass balance information collected by the Administrator under paragraph (3). The Administrator
Page 7101 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11023

shall submit to Congress a report on such

study no later than 5 years after October 17,

1986.

(2) Purposes

The purposes of the study are as follows:

(A) To assess the value of mass balance

analysis in determining the accuracy of information on toxic chemical releases.

(B) To assess the value of obtaining mass

balance information, or portions thereof, to

determine the waste reduction efficiency of

different facilities, or categories of facilities, including the effectiveness of toxic

chemical regulations promulgated under

laws other than this chapter.

(C) To assess the utility of such information for evaluating toxic chemical management practices at facilities, or categories of

facilities, covered by this section.

(D) To determine the implications of mass

balance information collection on a national

scale similar to the mass balance information collection carried out by the Administrator under paragraph (3), including implications of the use of such collection as part

of a national annual quantity toxic chemical

release program.

(3) Information collection

(A) The Administrator shall acquire available mass balance information from States

which currently conduct (or during the 5 years

after October 17, 1986 initiate) a mass balanceoriented annual quantity toxic chemical release program. If information from such

States provides an inadequate representation

of industry classes and categories to carry out

the purposes of the study, the Administrator

also may acquire mass balance information

necessary for the study from a representative

number of facilities in other States.

(B) Any information acquired under this section shall be available to the public, except

that upon a showing satisfactory to the Administrator by any person that the information (or a particular part thereof) to which the

Administrator or any officer, employee, or

representative has access under this section if

made public would divulge information entitled to protection under section 1905 of title 18,

such information or part shall be considered

confidential in accordance with the purposes

of that section, except that such information

or part may be disclosed to other officers, employees, or authorized representatives of the

United States concerned with carrying out

this section.

(C) The Administrator may promulgate regulations prescribing procedures for collecting

mass balance information under this paragraph.

(D) For purposes of collecting mass balance

information under subparagraph (A), the Administrator may require the submission of information by a State or facility.

(4) Mass balance definition

For purposes of this subsection, the term

‘‘mass balance’’ means an accumulation of the

annual quantities of chemicals transported to

a facility, produced at a facility, consumed at

a facility, used at a facility, accumulated at a

facility, released from a facility, and transported from a facility as a waste or as a commercial product or byproduct or component of

a commercial product or byproduct.

(Pub. L. 99–499, title III, §313, Oct. 17, 1986, 100

Stat. 1741.)

EXPEDITING COMMUNITY RIGHT-TO-KNOW INITIATIVES

Memorandum of President of the United States, Aug.

8, 1995, 60 F.R. 41791, provided:

Memorandum for the Administrator of the Environmental Protection Agency and the Heads of Executive

Departments and Agencies

The Emergency Planning and Community Right-toKnow Act of 1986 (42 U.S.C. 11001–11050) (‘‘EPCRA’’) and

the Pollution Prevention Act of 1990 (42 U.S.C.

13101–13109) provide an innovative approach to protecting public health and the environment by ensuring that

communities are informed about the toxic chemicals

being released into the air, land, and water by manufacturing facilities. I am committed to the effective

implementation of this law, because Community Rightto-Know protections provide a basic informational tool

to encourage informed community-based environmental decision making and provide a strong incentive

for businesses to find their own ways of preventing pollution.

The laws provide the Environmental Protection

Agency with substantial authority to add to the Toxics

Release Inventory under EPCRA: (1) new chemicals; (2)

new classes of industrial facilities; and (3) additional

types of information concerning toxic chemical use at

facilities. Community Right-to-Know should be enhanced wherever possible as appropriate. EPA currently is engaged in an on-going process to address potential facility expansion and the collection of use information. I am committed to a full and open process

on the policy issues posed by EPA’s exercise of these

authorities.

So that consideration of these issues can be fully accomplished during this Administration, I am directing

the Administrator of the Environmental Protection

Agency, in consultation with the Office of Management

and Budget and appropriate Federal agencies with applicable technical and functional expertise, as necessary, to take the following actions:

(a) Continuation on an expedited basis of the public

notice and comment rulemaking proceedings to consider whether, as appropriate and consistent with section 313(b) of EPCRA, 42 U.S.C. 11023(b), to add to the

list of Standard Industrial Classification (‘‘SIC’’) Code

designations of 20 through 39 (as in effect on July 1,

1985). For SIC Code designations, see ‘‘Standard Industrial Classification Manual’’ published by the Office of

Management and Budget. EPA shall complete the rulemaking process on an accelerated schedule.

(b) Development and implementation of an expedited,

open, and transparent process for consideration of reporting under EPCRA on information on the use of

toxic chemicals at facilities, including information on

mass balance, materials accounting, or other chemical

use date [data], pursuant to section 313(b)(1)(A) of

EPCRA, 42 U.S.C. 11023(b)(1)(A). EPA shall report on

the progress of this effort by October 1, 1995, with a

goal of obtaining sufficient information to be able to

make informed judgments concerning implementation

of any appropriate program.

These actions should continue unless specifically prohibited by law. The head of each executive department

or agency shall assist the Environmental Protection

Agency in implementing this directive as quickly as

possible.

This directive is for the internal management of the

executive branch and does not create any right or benefit, substantive or procedural, enforceable by any party

against the United States, its agencies or instrumentalities, its officers or employees, or any person.
§ 11041 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 7102

The Director of the Office of Management and Budget

is authorized and directed to publish this Memorandum

in the Federal Register.

WILLIAM J. CLINTON.

SUBCHAPTER III—GENERAL PROVISIONS

§ 11041. Relationship to other law

(a) In general

Nothing in this chapter shall—

(1) preempt any State or local law,

(2) except as provided in subsection (b) of

this section, otherwise affect any State or

local law or the authority of any State or

local government to adopt or enforce any

State or local law, or

(3) affect or modify in any way the obligations or liabilities of any person under other

Federal law.

(b) Effect on MSDS requirements

Any State or local law enacted after August 1,

1985, which requires the submission of a material safety data sheet from facility owners or operators shall require that the data sheet be identical in content and format to the data sheet required under subsection (a) of section 11021 of

this title. In addition, a State or locality may

require the submission of information which is

supplemental to the information required on the

data sheet (including information on the location and quantity of hazardous chemicals

present at the facility), through additional

sheets attached to the data sheet or such other

means as the State or locality considers appropriate.

(Pub. L. 99–499, title III, §321, Oct. 17, 1986, 100

Stat. 1747.)

§ 11042. Trade secrets

(a) Authority to withhold information

(1) General authority

(A) With regard to a hazardous chemical, an

extremely hazardous substance, or a toxic

chemical, any person required under section

11003(d)(2), 11003(d)(3), 11021, 11022, or 11023 of

this title to submit information to any other

person may withhold from such submittal the

specific chemical identity (including the

chemical name and other specific identification), as defined in regulations prescribed by

the Administrator under subsection (c) of this

section, if the person complies with paragraph

(2).

(B) Any person withholding the specific

chemical identity shall, in the place on the

submittal where the chemical identity would

normally be included, include the generic class

or category of the hazardous chemical, extremely hazardous substance, or toxic chemical (as the case may be).

(2) Requirements

(A) A person is entitled to withhold information under paragraph (1) if such person—

(i) claims that such information is a trade

secret, on the basis of the factors enumerated in subsection (b) of this section,

(ii) includes in the submittal referred to in

paragraph (1) an explanation of the reasons

why such information is claimed to be a

trade secret, based on the factors enumerated in subsection (b) of this section, including a specific description of why such factors

apply, and

(iii) submits to the Administrator a copy

of such submittal, and the information withheld from such submittal.

(B) In submitting to the Administrator the

information required by subparagraph (A)(iii),

a person withholding information under this

subsection may—

(i) designate, in writing and in such manner as the Administrator may prescribe by

regulation, the information which such person believes is entitled to be withheld under

paragraph (1), and

(ii) submit such designated information

separately from other information submitted under this subsection.

(3) Limitation

The authority under this subsection to withhold information shall not apply to information which the Administrator has determined,

in accordance with subsection (c) of this section, is not a trade secret.

(b) Trade secret factors

No person required to provide information

under this chapter may claim that the information is entitled to protection as a trade secret

under subsection (a) of this section unless such

person shows each of the following:

(1) Such person has not disclosed the information to any other person, other than a

member of a local emergency planning committee, an officer or employee of the United

States or a State or local government, an employee of such person, or a person who is

bound by a confidentiality agreement, and

such person has taken reasonable measures to

protect the confidentiality of such information and intends to continue to take such

measures.

(2) The information is not required to be disclosed, or otherwise made available, to the

public under any other Federal or State law.

(3) Disclosure of the information is likely to

cause substantial harm to the competitive position of such person.

(4) The chemical identity is not readily discoverable through reverse engineering.

(c) Trade secret regulations

As soon as practicable after October 17, 1986,

the Administrator shall prescribe regulations to

implement this section. With respect to subsection (b)(4) of this section, such regulations

shall be equivalent to comparable provisions in

the Occupational Safety and Health Administration Hazard Communication Standard (29 C.F.R.

1910.1200) and any revisions of such standard prescribed by the Secretary of Labor in accordance

with the final ruling of the courts of the United

States in United Steelworkers of America,

AFL–CIO–CLC v. Thorne G. Auchter.

(d) Petition for review

(1) In general

Any person may petition the Administrator

for the disclosure of the specific chemical
Page 7103 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11042

1So in original. Probably should be ‘‘claimant’’. 2So in original. Probably should be ‘‘limitation’’.

identity of a hazardous chemical, an extremely hazardous substance, or a toxic chemical which is claimed as a trade secret under

this section. The Administrator may, in the

absence of a petition under this paragraph,

initiate a determination, to be carried out in

accordance with this subsection, as to whether

information withheld constitutes a trade secret.

(2) Initial review

Within 30 days after the date of receipt of a

petition under paragraph (1) (or upon the Administrator’s initiative), the Administrator

shall review the explanation filed by a trade

secret claimant under subsection (a)(2) of this

section and determine whether the explanation presents assertions which, if true, are

sufficient to support a finding that the specific

chemical identity is a trade secret.

(3) Finding of sufficient assertions

(A) If the Administrator determines pursuant to paragraph (2) that the explanation presents sufficient assertions to support a finding

that the specific chemical identity is a trade

secret, the Administrator shall notify the

trade secret claimant that he has 30 days to

supplement the explanation with detailed information to support the assertions.

(B) If the Administrator determines, after

receipt of any supplemental supporting detailed information under subparagraph (A),

that the assertions in the explanation are true

and that the specific chemical identity is a

trade secret, the Administrator shall so notify

the petitioner and the petitioner may seek judicial review of the determination.

(C) If the Administrator determines, after

receipt of any supplemental supporting detailed information under subparagraph (A),

that the assertions in the explanation are not

true and that the specific chemical identity is

not a trade secret, the Administrator shall notify the trade secret claimant that the Administrator intends to release the specific chemical identity. The trade secret claimant has 30

days in which he may appeal the Administrator’s determination under this subparagraph

to the Administrator. If the Administrator

does not reverse his determination under this

subparagraph in such an appeal by the trade

secret claimant, the trade secret claimaint 1

may seek judicial review of the determination.

(4) Finding of insufficient assertions

(A) If the Administrator determines pursuant to paragraph (2) that the explanation presents insufficient assertions to support a finding that the specific chemical identity is a

trade secret, the Administrator shall notify

the trade secret claimant that he has 30 days

to appeal the determination to the Administrator, or, upon a showing of good cause,

amend the original explanation by providing

supplementary assertions to support the trade

secret claim.

(B) If the Administrator does not reverse his

determination under subparagraph (A) after

an appeal or an examination of any supplementary assertions under subparagraph (A),

the Administrator shall so notify the trade secret claimant and the trade secret claimant

may seek judicial review of the determination.

(C) If the Administrator reverses his determination under subparagraph (A) after an appeal or an examination of any supplementary

assertions under subparagraph (A), the procedures under paragraph (3) of this subsection

apply.

(e) Exception for information provided to health

professionals

Nothing in this section, or regulations adopted

pursuant to this section, shall authorize any

person to withhold information which is required to be provided to a health professional, a

doctor, or a nurse in accordance with section

11043 of this title.

(f) Providing information to Administrator;

availability to public

Any information submitted to the Administrator under subsection (a)(2) of this section or

subsection (d)(3) of this section (except a specific chemical identity) shall be available to the

public, except that upon a showing satisfactory

to the Administrator by any person that the information (or a particular part thereof) to which

the Administrator has access under this section

if made public would divulge information entitled to protection under section 1905 of title 18,

such information or part shall be considered

confidential in accordance with the purposes of

that section, except that such information or

part may be disclosed to other officers, employees, or authorized representatives of the United

States concerned with carrying out this chapter.

(g) Information provided to State

Upon request by a State, acting through the

Governor of the State, the Administrator shall

provide to the State any information obtained

under subsection (a)(2) of this section and subsection (d)(3) of this section.

(h) Information on adverse effects

(1) In any case in which the identity of a hazardous chemical or an extremely hazardous substance is claimed as a trade secret, the Governor

or State emergency response commission established under section 11001 of this title shall identify the adverse health effects associated with

the hazardous chemical or extremely hazardous

substance and shall assure that such information is provided to any person requesting information about such hazardous chemical or extremely hazardous substance.

(2) In any case in which the identity of a toxic

chemical is claimed as a trade secret, the Administrator shall identify the adverse health

and environmental effects associated with the

toxic chemical and shall assure that such information is included in the computer database required by section 11023(j) of this title and is provided to any person requesting information

about such toxic chemical.

(i) Information provided to Congress

Notwithstanding any limitatio 2 contained in

this section or any other provision of law, all in-
§ 11043 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 7104

formation reported to or otherwise obtained by

the Administrator (or any representative of the

Administrator) under this chapter shall be made

available to a duly authorized committee of the

Congress upon written request by such a committee.

(Pub. L. 99–499, title III, §322, Oct. 17, 1986, 100

Stat. 1747.)

§ 11043. Provision of information to health professionals, doctors, and nurses

(a) Diagnosis or treatment by health professional

An owner or operator of a facility which is

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, extremely hazardous substance, or a

toxic chemical to any health professional who

requests such information in writing if the

health professional provides a written statement

of need under this subsection and a written confidentiality agreement under subsection (d) of

this section. The written statement of need

shall be a statement that the health professional has a reasonable basis to suspect that—

(1) the information is needed for purposes of

diagnosis or treatment of an individual,

(2) the individual or individuals being diagnosed or treated have been exposed to the

chemical concerned, and

(3) knowledge of the specific chemical identity of such chemical will assist in diagnosis

or treatment.

Following such a written request, the owner or

operator to whom such request is made shall

promptly provide the requested information to

the 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.

(b) Medical emergency

An owner or operator of a facility which is

subject to the requirements of section 11021,

11022, or 11023 of this title shall provide a copy

of a material safety data sheet, an inventory

form, or a toxic chemical release form, including the specific chemical identity, if known, of

a hazardous chemical, extremely hazardous substance, or a toxic chemical, to any treating physician or nurse who requests such information if

such physician or nurse determines that—

(1) a medical emergency exists,

(2) the specific chemical identity of the

chemical concerned is necessary for or will assist in emergency or first-aid diagnosis or

treatment, and

(3) the individual or individuals being diagnosed or treated have been exposed to the

chemical concerned.

Immediately following such a request, the owner

or operator to whom such request is made shall

provide the requested information to the physician or nurse. The authority to withhold the

specific chemical identity of a chemical from a

material safety data sheet, an inventory form,

or a toxic chemical release form under section

11042 of this title when such information is a

trade secret shall not apply to information required to be provided to a treating physician or

nurse under this subsection. No written confidentiality agreement or statement of need

shall be required as a precondition of such disclosure, but the owner 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 confiden-
Page 7105 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11045

1So in original. Probably should be ‘‘subsections’’. 1So in original. Probably should not be capitalized.

tiality 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 subsection1 (a) and (c) of

this section and the confidentiality agreement

under subsection (d) of this section.

(Pub. L. 99–499, title III, §323, Oct. 17, 1986, 100

Stat. 1750.)

§ 11044. Public availability of plans, data sheets,

forms, and followup notices

(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.

(Pub. L. 99–499, title III, §324, Oct. 17, 1986, 100

Stat. 1752.)

§ 11045. Enforcement

(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,
§ 11046 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 7106

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.

(Pub. L. 99–499, title III, §325, Oct. 17, 1986, 100

Stat. 1753.)

§ 11046. Civil actions

(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.
Page 7107 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11046

1So in original. Probably should be preceded by ‘‘section’’.

(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
§ 11047 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 7108

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.

(Pub. L. 99–499, title III, §326, Oct. 17, 1986, 100

Stat. 1755.)

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.

§ 11047. Exemption

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.

(Pub. L. 99–499, title III, §327, Oct. 17, 1986, 100

Stat. 1757.)

§ 11048. Regulations

The Administrator may prescribe such regulations as may be necessary to carry out this

chapter.

(Pub. L. 99–499, title III, §328, Oct. 17, 1986, 100

Stat. 1757.)

§ 11049. Definitions

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.

(Pub. L. 99–499, title III, §329, Oct. 17, 1986, 100

Stat. 1757.)

§ 11050. Authorization of appropriations

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.

(Pub. L. 99–499, title III, §330, Oct. 17, 1986, 100

Stat. 1758.)

CHAPTER 117—ENCOURAGING GOOD FAITH

PROFESSIONAL REVIEW ACTIVITIES

Sec.

11101. Findings.

SUBCHAPTER I—PROMOTION OF PROFESSIONAL

REVIEW ACTIVITIES

11111. Professional review.

11112. Standards for professional review actions.

11113. Payment of reasonable attorneys’ fees and

costs in defense of suit.

11114. Guidelines of Secretary.

11115. Construction.

SUBCHAPTER II—REPORTING OF INFORMATION

11131. Requiring reports on medical malpractice

payments.