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

§ 10904. Annual report by States; contents; man

ner of payments pursuant to grants

(a) Reporting

Each State receiving grants under this chap

ter shall annually submit to the Secretary infor

mation on the number of eligible individuals as

sisted under the grant program, and their posi

tions 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 ad

vance or by way of reimbursement, with nec

essary adjustments on account of overpayments
or underpayments, as the Secretary may deter

mine.

(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 nec

essary 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.)

A MENDMENTS

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 fis

cal 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 sub

stitution of ‘‘fiscal year’’ for ‘‘each of the fiscal years
1987, 1988, and 1989, and’’, which was executed by mak

ing the substitution for ‘‘each of the fiscal years 1987,
1988, 1989, and’’ to reflect the probable intent of Con

gress.

E FFECTIVE D ATE OF 1994 A MENDMENT

Amendment by Pub. L. 103–252 effective May 18, 1994,
but not applicable to Head Start agencies and other re

cipients 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.

E FFECTIVE D ATE OF 1990 A MENDMENT

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, plan

ning districts, and local committees.

11002. Substances and facilities covered and notifi

cation.

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 profes

sionals, 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 Gov

ernor may designate as the State emergency re

sponse commission one or more existing emer

gency 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 commit

tees 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 re

ceiving 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 des

ignation.

(b) Establishment of emergency planning dis

tricts

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 implementa

tion of emergency plans. Where appropriate, the
State emergency response commission may des

ignate existing political subdivisions or multi

jurisdictional planning organizations as such
districts. In emergency planning areas that in

volve more than one State, the State emergency
response commissions of all potentially affected
States may designate emergency planning dis

tricts 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 require

ments of this subchapter are within such emer

gency 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 commit

tee for each emergency planning district. Each
committee shall include, at a minimum, rep

resentatives from each of the following groups
or organizations: elected State and local offi

cials; law enforcement, civil defense, firefight

ing, first aid, health, local environmental, hos

pital, and transportation personnel; broadcast
and print media; community groups; and owners
and operators of facilities subject to the require

ments 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 notifica

tion 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 es

tablish procedures for receiving and processing
requests from the public for information under
section 11044 of this title, including tier II infor

mation 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.)

E FFECTIVE D ATE

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.

S HORT T ITLE

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’.’’

E XECUTIVE O RDER N O . 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 re

voked 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 no

tification

(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 Ad

ministrator shall publish a list of extremely

hazardous substances. The list shall be the
same as the list of substances published in No

vember 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 para

graph (2) is published the Administrator

shall—
(i) publish an interim final regulation es

tablishing a threshold planning quantity for
each substance on the list, taking into ac

count the criteria described in paragraph (4),

and
(ii) initiate a rulemaking in order to pub

lish final regulations establishing a thresh

old 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 thresh

old 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, vol

atility, 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 ex

posure 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 re

ferred 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 Gov

ernor or a State emergency response commis

sion may designate additional facilities which
shall be subject to the requirements of this sub

chapter, if such designation is made after public
notice and opportunity for comment. The Gov

ernor or State emergency response commission
shall notify the facility concerned of any facil

ity designation under this paragraph.

(c) Emergency planning notification

Not later than seven months after October 17,
1986, the owner or operator of each facility sub

ject to the requirements of this subchapter by
reason of subsection (b)(1) of this section shall
notify the State emergency response commis

sion for the State in which such facility is lo

cated that such facility is subject to the require

-Page 7092 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11003

ments of this subchapter. Thereafter, if a sub

stance on the list of extremely hazardous sub

stances referred to in subsection (a) of this sec

tion first becomes present at such facility in ex

cess of the threshold planning quantity estab

lished for such substance, or if there is a revi

sion 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 com

mission and the local emergency planning com

mittee within 60 days after such acquisition or
revision that such facility is subject to the re

quirements of this subchapter.

(d) Notification of Administrator

The State emergency response commission
shall notify the Administrator of facilities sub

ject 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 fre

quently as changed circumstances in the com

munity 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 emer

gency plan, and shall make recommendations
with respect to additional resources that may be
required and the means for providing such addi

tional 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 with

in the emergency planning district, identifica

tion of routes likely to be used for the trans

portation of substances on the list of ex

tremely hazardous substances referred to in
section 11002(a) of this title, and identification
of additional facilities contributing or sub

jected to additional risk due to their proxim

ity 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 emer

gency and medical personnel to respond to any

release of such substances. (3) Designation of a community emergency
coordinator and facility emergency coordina

tors, who shall make determinations nec

essary to implement the plan. (4) Procedures providing reliable, effective,
and timely notification by the facility emer

gency coordinators and the community emer

gency coordinator to persons designated in the
emergency plan, and to the public, that a re

lease has occurred (consistent with the emer

gency 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 re

quirements of this subchapter, and an identi

fication of the persons responsible for such
equipment and facilities.
(7) Evacuation plans, including provisions
for a precautionary evacuation and alter

native 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 fa

cility is located, or within 11 months after Oc

tober 17, 1986, whichever is earlier, the owner
or operator of the facility shall notify the
emergency planning committee (or the Gov

ernor if there is no committee) of a facility
representative who will participate in the
emergency planning process as a facility emer

gency 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 plan

ning 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 commis

sion

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 rec

ommendations to the committee on revisions of
the plan that may be necessary to ensure coordi

nation 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 andPage 7093 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11004

implementation of emergency plans. Such docu

ments 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, implementa

tion, or exercise of such a plan upon request of
a local emergency planning committee. Such re

view 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 sub

stance referred to in section 11002(a) of this
title occurs from a facility at which a hazard

ous chemical is produced, used, or stored, and
such release requires a notification under sec

tion 103(a) of the Comprehensive Environ

mental 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 facil

ity shall immediately provide notice as de

scribed in subsection (b) of this section.

(2) Other 11002(a) substance

If a release of an extremely hazardous sub

stance referred to in section 11002(a) of this
title occurs from a facility at which a hazard

ous 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 re

quire notification under section 103(a) of
CERCLA [42 U.S.C. 9603(a)].

Unless and until superseded by regulations es

tablishing a quantity for an extremely hazard

ous substance described in this paragraph, a
quantity of 1 pound shall be deemed that quan

tity the release of which requires notice as de

scribed 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 re

portable 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 re

portable 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 oper

ator shall provide, for releases of one
pound or more of the substance, the same
notice to the community emergency co

ordinator for the local emergency planning
committee, at the same time and in the
same form, as notice is provided to the Na

tional 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 per

son) 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 plan

ning commission of any State likely to be af

fected by the release. With respect to trans

portation of a substance subject to the re

quirements of this section, or storage incident
to such transportation, the notice require

ments of this section with respect to a release
shall be satisfied by dialing 911 or, in the ab

sence 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 emer

gency 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 (unlessPage 7094 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11005

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 sec

tion, 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 includ

ing additional information with respect to—
(1) actions taken to respond to and contain
the release,
(2) any known or anticipated acute or chron

ic health risks associated with the release, and
(3) where appropriate, advice regarding med

ical attention necessary for exposed individ

uals.

(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.)

R EFERENCES IN T EXT

The Comprehensive Environmental Response, Com

pensation, and Liability Act of 1980, and CERCLA, re

ferred to in subsec. (a)(1), (3), is Pub. L. 96–510, Dec. 11,
1980, 94 Stat. 2767, as amended, which is classified prin

cipally 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 emer

gency systems

(a) Emergency training

(1) Programs

Officials of the United States Government
carrying out existing Federal programs for
emergency training are authorized to specifi

cally provide training and education programs
for Federal, State, and local personnel in haz

ard mitigation, emergency preparedness, fire
prevention and control, disaster response,
long-term disaster recovery, national security,
technological and natural hazards, and emer

gency processes. Such programs shall provide
special emphasis for such training and edu

cation 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 emer

gencies 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 pro

grams 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 hazard

ous substances at representative domestic fa

cilities that produce, use, or store extremely
hazardous substances. The Administrator may
select representative extremely hazardous

substances from the substances on the list re

ferred 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 re

port 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 ca

pabilities to (i) monitor, detect, and prevent,
in a timely manner, significant releases of
extremely hazardous substances, (ii) deter

mine 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 re

leases, and (v) determine the relative con

centrations of the constituent substances. (B) The status of public emergency alert
devices or systems for providing timely and
effective public warning of an accidental re

lease 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 haz

ardous substances. (C) The technical and economic feasibility
of establishing, maintaining, and operating
perimeter alert systems for detecting re

leases of such extremely hazardous sub

stances into the atmosphere, surface water,
or groundwater, at facilities that manufac

ture, use, or store significant quantities of

such substances.

(3) Recommendations

The report required by this subsection shall

also include the Administrator’s recommenda

tions 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 ex

tremely hazardous substances, andPage 7095 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11021

(B) improving devices or systems for effec

tively alerting the public in a timely man

ner, 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.)

T RANSFER OF F UNCTIONS

For transfer of all functions, personnel, assets, com

ponents, authorities, grant programs, and liabilities of
the Federal Emergency Management Agency, including
the functions of the Under Secretary for Federal Emer

gency 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 li

abilities of the Federal Emergency Management Agen

cy, including the functions of the Director of the Fed

eral Emergency Management Agency relating thereto,
to the Secretary of Homeland Security, and for treat

ment of related references, see former section 313(1) and
sections 551(d), 552(d), and 557 of Title 6, Domestic Secu

rity, and the Department of Homeland Security Reor

ganization 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 ma

terial safety data sheet for a hazardous chemi

cal under the Occupational Safety and Health
Act of 1970 [29 U.S.C. 651 et seq.] and regula

tions promulgated under that Act shall submit
a material safety data sheet for each such
chemical, or a list of such chemicals as de

scribed in paragraph (2), to each of the follow

ing:
(A) The appropriate local emergency plan

ning committee.
(B) The State emergency response commis

sion.
(C) The fire department with jurisdiction
over the facility.

(2) Contents of list

(A) The list of chemicals referred to in para

graph (1) shall include each of the following:
(i) A list of the hazardous chemicals for
which a material safety data sheet is re

quired 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 reg

ulations 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 para

graph, the Administrator may modify the cat

egories 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 re

quiring 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 require

ments of this section with respect to a hazard

ous 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 ele

ment or compound in the mixture which is a

hazardous chemical. If more than one mix

ture has the same element or compound,
only one material safety data sheet, or one
listing, of the element or compound is nec

essary. (B) Submitting a material safety data
sheet for, or identifying on a list, the mix

ture 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 re

quest by the local emergency planning com

mittee, 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 avail

able 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 avail

able a material safety data sheet for the chem

ical under the Occupational Safety and Health
Act of 1970 [29 U.S.C. 651 et seq.] and regula

tions promulgated under that Act.

(2) Within 3 months following discovery by an
owner or operator of significant new informa

tion concerning an aspect of a hazardous chemi

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

(e) ‘‘Hazardous chemical’’ defined

For purposes of this section, the term ‘‘hazard

ous 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 fer

tilizer held for sale by a retailer to the ulti

mate customer.

(Pub. L. 99–499, title III, §311, Oct. 17, 1986, 100
Stat. 1736.)

R EFERENCES IN T EXT

The Occupational Safety and Health Act of 1970, re

ferred 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 mate

rial 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 pro

mulgated under that Act shall prepare and sub

mit an emergency and hazardous chemical in

ventory form (hereafter in this chapter referred
to as an ‘‘inventory form’’) to each of the follow

ing:
(A) The appropriate local emergency plan

ning committee.
(B) The State emergency response commis

sion.
(C) The fire department with jurisdiction
over the facility.

(2) The inventory form containing tier I infor

mation (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 cal

endar year, tier II information (as described in
subsection (d)(2) of this section) to the recipi

ents described in paragraph (1).
(3) An owner or operator may meet the re

quirements of this section with respect to a haz

ardous 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 mix

ture 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 facil

ity 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 sub

ject to the provisions of this section. The
threshold quantities may, in the Administra

tor’s discretion, be based on classes of chemicals
or categories of facilities.

(c) Hazardous chemicals covered

A hazardous chemical subject to the require

ments of this section is any hazardous chemical
for which a material safety data sheet or a list

ing 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 infor

mation described in subparagraph (B) in ag

gregate 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 subpara

graph (A) is the following:
(i) An estimate (in ranges) of the maxi

mum 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 aver

age 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 Oc

cupational Safety and Health Act of 1970
[29 U.S.C. 651 et seq.] and regulations pro

mulgated under that Act by requiring in

formation to be reported in terms of
groups of hazardous chemicals which
present similar hazards in an emergency,

or (ii) require reporting on individual haz

ardous chemicals of special concern to
emergency response personnel.

(2) Tier II information

An inventory form shall provide the follow

ing additional information for each hazardousPage 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 ma

terial safety data sheet.
(B) An estimate (in ranges) of the maxi

mum 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 haz

ardous 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 com

mittee, or a fire department with jurisdiction
over the facility, the owner or operator of a fa

cility shall provide tier II information, as de

scribed 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 offi

cials

A State or local official acting in his or her
official capacity may have access to tier II in

formation by submitting a request to the
State emergency response commission or the
local emergency planning committee. Upon re

ceipt 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 emer

gency response commission or local emer

gency planning committee for tier II infor

mation relating to the preceding calendar
year with respect to a facility. Any such re

quest 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 per

son 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 pos

session, upon a request for tier II informa

tion the State emergency response commis

sion or local emergency planning committee
shall, pursuant to paragraph (1), request the
facility owner or operator for tier II infor

mation 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 re

spect to a hazardous chemical which a facil

ity has stored in an amount less than 10,000
pounds present at the facility at any time
during the preceding calendar year, a re

quest from a person must include the gen

eral need for the information. The State
emergency response commission or local
emergency planning committee may, pursu

ant 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 emer

gency response commission or local emer

gency 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 infor

mation 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 fa

cility 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 con

duct an on-site inspection of the facility and
shall provide to the fire department specific lo

cation information on hazardous chemicals at
the facility.

(g) Format of forms

The Administrator shall publish a uniform for

mat 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 sec

tion shall provide the information required
under this section by letter.

(Pub. L. 99–499, title III, §312, Oct. 17, 1986, 100
Stat. 1738.)

R EFERENCES IN T EXT

The Occupational Safety and Health Act of 1970, re

ferred 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.Page 7098 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11023

§ 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 sec

tion that was manufactured, processed, or other

wise used in quantities exceeding the toxic
chemical threshold quantity established by sub

section (f) of this section during the preceding
calendar year at such facility. Such form shall

be submitted to the Administrator and to an of

ficial 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 re

flecting 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 re

quired 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 Stand

ard Industrial Code to which this section ap

plies is relevant to the purposes of this sec

tion.
(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 prepara

tion of a toxic chemical, after its manufac

ture, 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 fa

cilities

The Administrator, on his own motion or at
the request of a Governor of a State (with re

gard 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 deter

mines that such action is warranted on the
basis of toxicity of the toxic chemical, proxim

ity 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 require

ments 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 Sec

tion 313 of the Emergency Planning and Commu

nity 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 sub

section (c) of this section at any time.

(2) Additions

A chemical may be added if the Adminis

trator 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 signifi

cant adverse acute human health effects at
concentration levels that are reasonably
likely to exist beyond facility site bound

aries as a result of continuous, or frequently
recurring, releases. (B) The chemical is known to cause or can
reasonably be anticipated to cause in hu

mans— (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 en

vironment, or (iii) its toxicity and tendency to bio

accumulate in the environment,

a significant adverse effect on the environ

ment of sufficient seriousness, in the judg

ment of the Administrator, to warrant re

porting 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 prin

ciples or laboratory tests, or appropriately de

signed and conducted epidemiological or other
population studies, available to the Adminis

trator.

(3) Deletions

A chemical may be deleted if the Adminis

trator determines there is not sufficient evi

dence 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 shallPage 7099 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11023

1 So 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 be

ginning 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 de

scribed 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 Adminis

trator 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 peti

tion is denied.

(2) Governor petitions

A State Governor may petition the Adminis

trator 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 sec

tion. In the case of such a petition from a
State Governor to delete a chemical, the peti

tion 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 chem

ical will be added to the list within 180 days
after receipt of the petition, unless the Admin

istrator— (A) initiates a rulemaking to add the
chemical to the list, in accordance with sub

section (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 re

porting 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 chem

ical per year. (B) With respect to a toxic chemical manu

factured or processed at a facility— (i) For the toxic chemical release form
required to be submitted under this sec

tion on or before July 1, 1988, 75,000 pounds
of the toxic chemical per year. (ii) For the form required to be submit

ted on or before July 1, 1989, 50,000 pounds
of the toxic chemical per year. (iii) For the form required to be submit

ted 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 thresh

old 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 re

quirements of this section. The amounts es

tablished 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 Adminis

trator shall publish a uniform toxic chemical
release form for facilities covered by this sec

tion. 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 be

fore 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 fa

cility;
(B) include an appropriate certification,
signed by a senior official with management
responsibility for the person or persons com

pleting 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 list

ed toxic chemical known to be present at the
facility:
(i) Whether the toxic chemical at the fa

cility 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 effi

ciency typically achieved by such methods

for that wastestream.
(iv) The annual quantity of the toxic
chemical entering each environmental me

dium.

(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 (in

cluding 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 sec

tion requires the monitoring or measurement
of the quantities, concentration, or frequency
of any toxic chemical released into the envi

ronment beyond that monitoring and meas

urement required under other provisions of
law or regulation. In order to assure consist

ency, 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 Fed

eral, State, and local governments and the pub

lic, including citizens of communities surround

-Page 7100 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11023

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 govern

mental agencies, researchers, and other persons
in the conduct of research and data gathering;
to aid in the development of appropriate regula

tions, guidelines, and standards; and for other
similar purposes.

(i) Modifications in reporting frequency

(1) In general

The Administrator may modify the fre

quency of submitting a report under this sec

tion, but the Administrator may not modify
the frequency to be any more often than annu

ally. A modification may apply, either nation

ally or in a specific geographic area, to the fol

lowing:
(A) All toxic chemical release forms re

quired under this section.
(B) A class of toxic chemicals or a cat

egory of facilities.
(C) A specific toxic chemical.
(D) A specific facility.

(2) Requirements

A modification may be made under para

graph (1) only if the Administrator—
(A) makes a finding that the modification
is consistent with the provisions of sub

section (h) of this section, based on—
(i) experience from previously submitted
toxic chemical release forms, and
(ii) determinations made under para

graph (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 relat

ing 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 pro

grams, and (ii) provided to the Adminis

trator 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 sub

section shall be reviewed at least once every 5
years. Such review shall examine the modi

fication and ensure that the requirements of
paragraphs (2) and (3) still justify continu

ation of the modification. Any change to a
modification reviewed under this paragraph

shall be made in accordance with this sub

section. (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 sub

section, a court may hold unlawful and set
aside agency action, findings, and conclusions
found to be unsupported by substantial evi

dence.

(7) Applicability

A modification under this subsection may
apply to a calendar year or other reporting pe

riod 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 cal

endar 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 follow

ing such next calendar year.

(j) EPA management of data

The Administrator shall establish and main

tain in a computer data base a national toxic
chemical inventory based on data submitted to

the Administrator under this section. The Ad

ministrator 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 op

tions for modifications to the requirements of
this section for the purpose of making infor

mation collected under this section more use

ful.

( l ) Mass balance study

(1) In general

The Administrator shall arrange for a mass
balance study to be carried out by the Na

tional Academy of Sciences using mass bal

ance information collected by the Adminis

trator under paragraph (3). The AdministratorPage 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 in

formation 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 facili

ties, including the effectiveness of toxic
chemical regulations promulgated under
laws other than this chapter.
(C) To assess the utility of such informa

tion for evaluating toxic chemical manage

ment 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 informa

tion collection carried out by the Adminis

trator under paragraph (3), including impli

cations 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 avail

able 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 re

lease 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 sec

tion shall be available to the public, except
that upon a showing satisfactory to the Ad

ministrator by any person that the informa

tion (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 enti

tled 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, em

ployees, or authorized representatives of the
United States concerned with carrying out

this section.
(C) The Administrator may promulgate reg

ulations prescribing procedures for collecting
mass balance information under this para

graph.
(D) For purposes of collecting mass balance
information under subparagraph (A), the Ad

ministrator may require the submission of in

formation 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 trans

ported from a facility as a waste or as a com

mercial product or byproduct or component of
a commercial product or byproduct.

(Pub. L. 99–499, title III, §313, Oct. 17, 1986, 100
Stat. 1741.)

E XPEDITING C OMMUNITY R IGHT

- TO -K NOW I NITIATIVES

Memorandum of President of the United States, Aug.
8, 1995, 60 F.R. 41791, provided:

Memorandum for the Administrator of the Environ

mental 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 protect

ing public health and the environment by ensuring that

communities are informed about the toxic chemicals
being released into the air, land, and water by manu

facturing 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 environ

mental decision making and provide a strong incentive
for businesses to find their own ways of preventing pol

lution.
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 en

hanced wherever possible as appropriate. EPA cur

rently is engaged in an on-going process to address po

tential facility expansion and the collection of use in

formation. 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 ac

complished 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 ap

plicable technical and functional expertise, as nec

essary, to take the following actions:
(a) Continuation on an expedited basis of the public
notice and comment rulemaking proceedings to con

sider whether, as appropriate and consistent with sec

tion 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 Indus

trial Classification Manual’’ published by the Office of
Management and Budget. EPA shall complete the rule

making process on an accelerated schedule.
(b) Development and implementation of an expedited,
open, and transparent process for consideration of re

porting 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 pro

hibited 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 bene

fit, substantive or procedural, enforceable by any party
against the United States, its agencies or instrumen

talities, its officers or employees, or any person.Page 7102 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11041

The Director of the Office of Management and Budget
is authorized and directed to publish this Memorandum
in the Federal Register.

W ILLIAM J. C LINTON

.

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 obliga

tions 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 mate

rial safety data sheet from facility owners or op

erators shall require that the data sheet be iden

tical in content and format to the data sheet re

quired 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 loca

tion 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 appro

priate.

(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 identifica

tion), 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, ex

tremely hazardous substance, or toxic chemi

cal (as the case may be).

(2) Requirements

(A) A person is entitled to withhold informa

tion under paragraph (1) if such person—
(i) claims that such information is a trade
secret, on the basis of the factors enumer

ated 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 enumer

ated in subsection (b) of this section, includ

ing a specific description of why such factors
apply, and
(iii) submits to the Administrator a copy
of such submittal, and the information with

held 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 man

ner as the Administrator may prescribe by
regulation, the information which such per

son believes is entitled to be withheld under
paragraph (1), and
(ii) submit such designated information
separately from other information submit

ted under this subsection.

(3) Limitation

The authority under this subsection to with

hold information shall not apply to informa

tion which the Administrator has determined,
in accordance with subsection (c) of this sec

tion, is not a trade secret.

(b) Trade secret factors

No person required to provide information
under this chapter may claim that the informa

tion 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 infor

mation to any other person, other than a
member of a local emergency planning com

mittee, an officer or employee of the United
States or a State or local government, an em

ployee 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 informa

tion and intends to continue to take such

measures. (2) The information is not required to be dis

closed, 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 po

sition of such person.
(4) The chemical identity is not readily dis

coverable 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 sub

section (b)(4) of this section, such regulations
shall be equivalent to comparable provisions in
the Occupational Safety and Health Administra

tion Hazard Communication Standard (29 C.F.R.
1910.1200) and any revisions of such standard pre

scribed 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 chemicalPage 7103 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11042

1 So in original. Probably should be ‘‘claimant’’. 2 So in original. Probably should be ‘‘limitation’’. identity of a hazardous chemical, an ex

tremely hazardous substance, or a toxic chem

ical 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 se

cret.

(2) Initial review

Within 30 days after the date of receipt of a
petition under paragraph (1) (or upon the Ad

ministrator’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 expla

nation 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 pursu

ant to paragraph (2) that the explanation pre

sents 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 in

formation to support the assertions.
(B) If the Administrator determines, after
receipt of any supplemental supporting de

tailed 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 ju

dicial review of the determination.
(C) If the Administrator determines, after
receipt of any supplemental supporting de

tailed 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 no

tify the trade secret claimant that the Admin

istrator intends to release the specific chemi

cal identity. The trade secret claimant has 30
days in which he may appeal the Administra

tor’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 pursu

ant to paragraph (2) that the explanation pre

sents insufficient assertions to support a find

ing 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 Adminis

trator, 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 supple

mentary assertions under subparagraph (A),
the Administrator shall so notify the trade se

cret claimant and the trade secret claimant
may seek judicial review of the determination.
(C) If the Administrator reverses his deter

mination under subparagraph (A) after an ap

peal or an examination of any supplementary
assertions under subparagraph (A), the proce

dures 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 re

quired 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 Adminis

trator under subsection (a)(2) of this section or
subsection (d)(3) of this section (except a spe

cific chemical identity) shall be available to the
public, except that upon a showing satisfactory
to the Administrator by any person that the in

formation (or a particular part thereof) to which

the Administrator has access under this section
if made public would divulge information enti

tled 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, employ

ees, 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 sub

section (d)(3) of this section.

(h) Information on adverse effects

(1) In any case in which the identity of a haz

ardous chemical or an extremely hazardous sub

stance is claimed as a trade secret, the Governor
or State emergency response commission estab

lished under section 11001 of this title shall iden

tify the adverse health effects associated with
the hazardous chemical or extremely hazardous

substance and shall assure that such informa

tion is provided to any person requesting infor

mation about such hazardous chemical or ex

tremely hazardous substance.
(2) In any case in which the identity of a toxic
chemical is claimed as a trade secret, the Ad

ministrator shall identify the adverse health

and environmental effects associated with the

toxic chemical and shall assure that such infor

mation is included in the computer database re

quired by section 11023(j) of this title and is pro

vided 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

-Page 7104 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11043

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 com

mittee.

(Pub. L. 99–499, title III, §322, Oct. 17, 1986, 100
Stat. 1747.)

§ 11043. Provision of information to health pro

fessionals, 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 spe

cific 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 con

fidentiality agreement under subsection (d) of

this section. The written statement of need
shall be a statement that the health profes

sional 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 diag

nosed or treated have been exposed to the
chemical concerned, and
(3) knowledge of the specific chemical iden

tity 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 with

hold the specific chemical identity of a chemical

under section 11042 of this title when such infor

mation is a trade secret shall not apply to infor

mation required to be provided under this sub

section, 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, includ

ing the specific chemical identity, if known, of
a hazardous chemical, extremely hazardous sub

stance, or a toxic chemical, to any treating phy

sician 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 as

sist in emergency or first-aid diagnosis or
treatment, and
(3) the individual or individuals being diag

nosed 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 physi

cian 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 re

quired to be provided to a treating physician or

nurse under this subsection. No written con

fidentiality agreement or statement of need
shall be required as a precondition of such dis

closure, but the owner or operator disclosing
such information may require a written con

fidentiality agreement in accordance with sub

section (d) of this section and a statement set

ting forth the items listed in paragraphs (1)
through (3) as soon as circumstances permit.

(c) Preventive measures by local health profes

sionals

(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 epi

demiologist)—
(A) who is a local government employee or
a person under contract with the local gov

ernment, and
(B) who requests such information in writ

ing and provides a written statement of need
under paragraph (2) and a written confiden

tiality 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 provi

sions of subsection (d) of this section.

(2) Written statement of need

The written statement of need shall be a

statement that describes with reasonable de

tail 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 deter

mine exposure levels of various population

groups. (C) To conduct periodic medical surveil

lance of exposed population groups.
(D) To provide medical treatment to ex

posed individuals or population groups.
(E) To conduct studies to determine the
health effects of exposure.
(F) To conduct studies to aid in the identi

fication of a chemical that may reasonably
be anticipated to cause an observed health

effect.

(d) Confidentiality agreement

Any person obtaining information under sub

section (a) or (c) of this section shall, in accord

ance with such subsection (a) or (c) of this sec

tion, be required to agree in a written confiden

-Page 7105 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11045

1 So in original. Probably should be ‘‘subsections’’. 1 So in original. Probably should not be capitalized. tiality agreement that he will not use the infor

mation 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 agree

ment 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 state

ment of need under subsection 1 (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 safe

ty data sheet, list described in section 11021(a)(2)
of this title, inventory form, toxic chemical re

lease form, and followup emergency notice shall
be made available to the general public, consist

ent with section 11042 of this title, during nor

mal 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 facil

ity subject to the requirements of section 11022
of this title, the State emergency response com

mission and the appropriate local emergency
planning committee shall withhold from disclo

sure under this section the location of any spe

cific 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 news

papers that the emergency response plan, mate

rial safety data sheets, and inventory forms

have been submitted under this section. The no

tice 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 fa

cility 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 Adminis

trator in the case of a violation of the require

ments 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 pen

alty assessed pursuant to this subsection, the

Administrator shall take into account the na

ture, 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, eco

nomic 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 Adminis

trator in the case of a violation of the require

ments 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 sub

section shall be assessed and collected in the
same manner, and subject to the same provi

sions, 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 Adminis

trator 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 proce

dures.

(3) Judicial assessment

The Administrator may bring an action in

the United States District 1 court for the ap

propriate district to assess and collect a pen

alty 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 sec

ond or subsequent violation, the amount of
such penalty may be not more than $75,000 for
each day during which the violation con

tinues.

(4) Criminal penalties

Any person who knowingly and willfully
fails to provide notice in accordance with sec

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

shall be fined not more than $50,000 or impris

oned for not more than five years, or both).

(c) Civil and administrative penalties for report

ing requirements

(1) Any person (other than a governmental en

tity) 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 en

tity) who violates any requirement of section
11021 or 11043(b) of this title, and any person who

fails to furnish to the Administrator informa

tion 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 para

graph (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 prin

cipal place of business is located.

(d) Civil, administrative, and criminal penalties with respect to trade secrets

(1) Civil and administrative penalty for frivo

lous claims

If the Administrator determines—
(A)(i) under section 11042(d)(4) of this title
that an explanation submitted by a trade se

cret claimant presents insufficient asser

tions to support a finding that a specific
chemical identity is a trade secret, or (ii)
after receiving supplemental supporting de

tailed 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 pen

alty of $25,000 per claim. The Administrator
may assess the penalty by administrative
order or may bring an action in the appro

priate district court of the United States to
assess and collect the penalty.

(2) Criminal penalty for disclosure of trade se

cret information

Any person who knowingly and willfully di

vulges 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 re

quired 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 dis

trict court to require such facility owner or op

erator 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 Adminis

trator. 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 assess

ment of a civil penalty after it has become a
final and unappealable order or after the appro

priate court has entered final judgment in favor
of the United States, the Administrator may re

quest the Attorney General of the United States
to institute a civil action in an appropriate dis

trict 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 doc

uments 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 ac

tion 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 chemi

cal release form under section 11023(a) of

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

1 So in original. Probably should be preceded by ‘‘section’’. (B) The Administrator for failure to do any
of the following:
(i) Publish inventory forms under sec

tion 11022(g) of this title.
(ii) Respond to a petition to add or de

lete 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 ac

cordance 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 peti

tion.

(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 emer

gency response commission for failure to re

spond 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 re

quest.

(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 sec

tion 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 con

taining tier I information unless such re

quirement does not apply by reason of the
second sentence of section 11022(a)(2) of this

title.

(B) Any State emergency response commis

sion 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 pro

vide information to the State under section
11042(g) of this title.

(b) Venue

(1) Any action under subsection (a) of this sec

tion against an owner or operator of a facility
shall be brought in the district court for the dis

trict in which the alleged violation occurred.
(2) Any action under subsection (a) of this sec

tion against the Administrator may be brought

in the United States District Court for the Dis

trict of Columbia. (c) Relief

The district court shall have jurisdiction in
actions brought under subsection (a) of this sec

tion against an owner or operator of a facility to
enforce the requirement concerned and to im

pose 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 sub

section (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 al

leged 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 sub

section (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 Gov

ernor, or State emergency response commission
(as the case may be) that the plaintiff will com

mence the action. Notice under this paragraph
shall be given in such manner as the Adminis

trator shall prescribe by regulation.

(e) Limitation

No action may be commenced under sub

section (a) of this section against an owner or
operator of a facility if the Administrator has
commenced and is diligently pursuing an admin

istrative order or civil action to enforce the re

quirement concerned or to impose a civil pen

alty under this Act with respect to the violation
of the requirement.

(f) Costs

The court, in issuing any final order in any ac

tion brought pursuant to this section, may
award costs of litigation (including reasonable
attorney and expert witness fees) to the prevail

ing or the substantially prevailing party when

ever the court determines such an award is ap

propriate. The court may, if a temporary re

straining 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 ex

pand any right which any person (or class of per

sons) may have under any Federal or State stat

ute or common law to seek enforcement of any
requirement or to seek any other relief (includ

ing 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 suchPage 7108 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11047

person has a direct interest which is or may be
adversely affected by the action and the dis

position of the action may, as a practical mat

ter, 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.)

R EFERENCES IN T EXT

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, Judi

ciary and Judicial Procedure.

§ 11047. Exemption

Except as provided in section 11004 of this
title, this chapter does not apply to the trans

portation, including the storage incident to such
transportation, of any substance or chemical
subject to the requirements of this chapter, in

cluding 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 regula

tions 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 Ad

ministrator 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 sec

tion 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 air

craft. (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), part

nership, association, State, municipality,
commission, political subdivision of a State,
or interstate body.

(8) Release

The term ‘‘release’’ means any spilling,
leaking, pumping, pouring, emitting, emp

tying, discharging, injecting, escaping, leach

ing, dumping, or disposing into the environ

ment (including the abandonment or discard

ing of barrels, containers, and other closed re

ceptacles) of any hazardous chemical, ex

tremely hazardous substance, or toxic chemi

cal.

(9) State

The term ‘‘State’’ means any State of the
United States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, Amer

ican 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 sub

stance 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.