- United States Code
- TITLE 33 - NAVIGATION AND NAVIGABLE WATERS
- CHAPTER 26 - WATER POLLUTION PREVENTION AND CONTROL
- SUBCHAPTER III - STANDARDS AND ENFORCEMENT
Sec. 1319. Enforcement
- (a)
State enforcement; compliance orders
- (1)
Whenever, on the basis of any information available to him,
the Administrator finds that any person is in violation of any
condition or limitation which implements section 1311, 1312, 1316,
1317, 1318, 1328, or 1345 of this title in a permit issued by a
State under an approved permit program under section 1342 or 1344
of this title he shall proceed under his authority in paragraph (3)
of this subsection or he shall notify the person in alleged
violation and such State of such finding. If beyond the thirtieth
day after the Administrator's notification the State has not
commenced appropriate enforcement action, the Administrator shall
issue an order requiring such person to comply with such condition
or limitation or shall bring a civil action in accordance with
subsection (b) of this section.
- (2)
Whenever, on the basis of information available to him, the
Administrator finds that violations of permit conditions or
limitations as set forth in paragraph (1) of this subsection are so
widespread that such violations appear to result from a failure of
the State to enforce such permit conditions or limitations
effectively, he shall so notify the State. If the Administrator
finds such failure extends beyond the thirtieth day after such
notice, he shall give public notice of such finding. During the
period beginning with such public notice and ending when such State
satisfies the Administrator that it will enforce such conditions
and limitations (hereafter referred to in this section as the
period of ''federally assumed enforcement''), except where an
extension has been granted under paragraph (5)(B) of this
subsection, the Administrator shall enforce any permit condition or
limitation with respect to any person -
- (A)
by issuing an order to comply with such condition or
limitation, or
- (B)
by bringing a civil action under subsection (b) of this
section.
- (3)
Whenever on the basis of any information available to him the
Administrator finds that any person is in violation of section
1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this title, or is in
violation of any permit condition or limitation implementing any of
such sections in a permit issued under section 1342 of this title
by him or by a State or in a permit issued under section 1344 of
this title by a State, he shall issue an order requiring such
person to comply with such section or requirement, or he shall
bring a civil action in accordance with subsection (b) of this
section.
- (4)
A copy of any order issued under this subsection shall be
sent immediately by the Administrator to the State in which the
violation occurs and other affected States. In any case in which an
order under this subsection (or notice to a violator under
paragraph (1) of this subsection) is issued to a corporation, a
copy of such order (or notice) shall be served on any appropriate
corporate officers. An order issued under this subsection relating
to a violation of section 1318 of this title shall not take effect
until the person to whom it is issued has had an opportunity to
confer with the Administrator concerning the alleged violation.
- (5)
- (A)
Any order issued under this subsection shall be by
personal service, shall state with reasonable specificity the
nature of the violation, and shall specify a time for compliance
not to exceed thirty days in the case of a violation of an interim
compliance schedule or operation and maintenance requirement and
not to exceed a time the Administrator determines to be reasonable
in the case of a violation of a final deadline, taking into account
the seriousness of the violation and any good faith efforts to
comply with applicable requirements.
- (B)
The Administrator may, if he determines (i) that any person
who is a violator of, or any person who is otherwise not in
compliance with, the time requirements under this chapter or in any
permit issued under this chapter, has acted in good faith, and has
made a commitment (in the form of contracts or other securities) of
necessary resources to achieve compliance by the earliest possible
date after July 1, 1977, but not later than April 1, 1979; (ii)
that any extension under this provision will not result in the
imposition of any additional controls on any other point or
nonpoint source; (iii) that an application for a permit under
section 1342 of this title was filed for such person prior to
December 31, 1974; and (iv) that the facilities necessary for
compliance with such requirements are under construction, grant an
extension of the date referred to in section 1311(b)(1)(A) of this
title to a date which will achieve compliance at the earliest time
possible but not later than April 1, 1979.
- (6)
Whenever, on the basis of information available to him, the
Administrator finds (A) that any person is in violation of section
1311(b)(1)(A) or (C) of this title, (B) that such person cannot
meet the requirements for a time extension under section 1311(i)(2)
of this title, and (C) that the most expeditious and appropriate
means of compliance with this chapter by such person is to
discharge into a publicly owned treatment works, then, upon request
of such person, the Administrator may issue an order requiring such
person to comply with this chapter at the earliest date
practicable, but not later than July 1, 1983, by discharging into a
publicly owned treatment works if such works concur with such
order. Such order shall include a schedule of compliance.
- (b)
Civil actions
The Administrator is authorized to commence a civil action for
appropriate relief, including a permanent or temporary injunction,
for any violation for which he is authorized to issue a compliance
order under subsection (a) of this section. Any action under this
subsection may be brought in the district court of the United
States for the district in which the defendant is located or
resides or is doing business, and such court shall have
jurisdiction to restrain such violation and to require compliance.
Notice of the commencement of such action shall be given
immediately to the appropriate State.
- (c)
Criminal penalties
- (1)
Negligent violations
Any person who -
- (A)
negligently violates section 1311, 1312, 1316, 1317,
1318, 1321(b)(3), 1328, or 1345 of this title, or any permit
condition or limitation implementing any of such sections in a
permit issued under section 1342 of this title by the
Administrator or by a State, or any requirement imposed in a
pretreatment program approved under section 1342(a)(3) or
1342(b)(8) of this title or in a permit issued under section
1344 of this title by the Secretary of the Army or by a State;
or
- (B)
negligently introduces into a sewer system or into a
publicly owned treatment works any pollutant or hazardous
substance which such person knew or reasonably should have
known could cause personal injury or property damage or, other
than in compliance with all applicable Federal, State, or local
requirements or permits, which causes such treatment works to
violate any effluent limitation or condition in any permit
issued to the treatment works under section 1342 of this title
by the Administrator or a State;
shall be punished by a fine of not less than $2,500 nor more than
$25,000 per day of violation, or by imprisonment for not more
than 1 year, or by both. If a conviction of a person is for a
violation committed after a first conviction of such person under
this paragraph, punishment shall be by a fine of not more than
$50,000 per day of violation, or by imprisonment of not more than
2 years, or by both.
- (2)
Knowing violations
Any person who -
- (A)
knowingly violates section 1311, 1312, 1316, 1317, 1318,
1321(b)(3), 1328, or 1345 of this title, or any permit
condition or limitation implementing any of such sections in a
permit issued under section 1342 of this title by the
Administrator or by a State, or any requirement imposed in a
pretreatment program approved under section 1342(a)(3) or
1342(b)(8) of this title or in a permit issued under section
1344 of this title by the Secretary of the Army or by a State;
or
- (B)
knowingly introduces into a sewer system or into a
publicly owned treatment works any pollutant or hazardous
substance which such person knew or reasonably should have
known could cause personal injury or property damage or, other
than in compliance with all applicable Federal, State, or local
requirements or permits, which causes such treatment works to
violate any effluent limitation or condition in a permit issued
to the treatment works under section 1342 of this title by the
Administrator or a State;
shall be punished by a fine of not less than $5,000 nor more than
$50,000 per day of violation, or by imprisonment for not more
than 3 years, or by both. If a conviction of a person is for a
violation committed after a first conviction of such person under
this paragraph, punishment shall be by a fine of not more than
$100,000 per day of violation, or by imprisonment of not more
than 6 years, or by both.
- (3)
Knowing endangerment
- (A)
General rule
Any person who knowingly violates section 1311, 1312, 1313,
1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of this title, or
any permit condition or limitation implementing any of such
sections in a permit issued under section 1342 of this title by
the Administrator or by a State, or in a permit issued under
section 1344 of this title by the Secretary of the Army or by a
State, and who knows at that time that he thereby places
another person in imminent danger of death or serious bodily
injury, shall, upon conviction, be subject to a fine of not
more than $250,000 or imprisonment of not more than 15 years,
or both. A person which is an organization shall, upon
conviction of violating this subparagraph, be subject to a fine
of not more than $1,000,000. If a conviction of a person is for
a violation committed after a first conviction of such person
under this paragraph, the maximum punishment shall be doubled
with respect to both fine and imprisonment.
- (B)
Additional provisions
For the purpose of subparagraph (A) of this paragraph -
- (i)
in determining whether a defendant who is an individual
knew that his conduct placed another person in imminent
danger of death or serious bodily injury -
- (I)
the person is responsible only for actual awareness
or actual belief that he possessed; and
- (II)
knowledge possessed by a person other than the
defendant but not by the defendant himself may not be
attributed to the defendant;
except that in proving the defendant's possession of actual
knowledge, circumstantial evidence may be used, including
evidence that the defendant took affirmative steps to shield
himself from relevant information;
- (ii)
it is an affirmative defense to prosecution that the
conduct charged was consented to by the person endangered and
that the danger and conduct charged were reasonably
foreseeable hazards of -
- (I)
an occupation, a business, or a profession; or
- (II)
medical treatment or medical or scientific
experimentation conducted by professionally approved
methods and such other person had been made aware of the
risks involved prior to giving consent;
and such defense may be established under this subparagraph by
a preponderance of the evidence;
- (iii)
the term ''organization'' means a legal entity, other
than a government, established or organized for any purpose,
and such term includes a corporation, company, association,
firm, partnership, joint stock company, foundation,
institution, trust, society, union, or any other association
of persons; and
- (iv)
the term ''serious bodily injury'' means bodily injury
which involves a substantial risk of death, unconsciousness,
extreme physical pain, protracted and obvious disfigurement,
or protracted loss or impairment of the function of a bodily
member, organ, or mental faculty.
- (4)
False statements
Any person who knowingly makes any false material statement,
representation, or certification in any application, record,
report, plan, or other document filed or required to be
maintained under this chapter or who knowingly falsifies, tampers
with, or renders inaccurate any monitoring device or method
required to be maintained under this chapter, shall upon
conviction, be punished by a fine of not more than $10,000, or by
imprisonment for not more than 2 years, or by both. If a
conviction of a person is for a violation committed after a first
conviction of such person under this paragraph, punishment shall
be by a fine of not more than $20,000 per day of violation, or by
imprisonment of not more than 4 years, or by both.
- (5)
Treatment of single operational upset
For purposes of this subsection, a single operational upset
which leads to simultaneous violations of more than one pollutant
parameter shall be treated as a single violation.
- (6)
Responsible corporate officer as ''person''
For the purpose of this subsection, the term ''person'' means,
in addition to the definition contained in section 1362(5) of
this title, any responsible corporate officer.
- (7)
Hazardous substance defined
For the purpose of this subsection, the term ''hazardous
substance'' means (A) any substance designated pursuant to
section 1321(b)(2)(A) of this title, (B) any element, compound,
mixture, solution, or substance designated pursuant to section
9602 of title 42, (C) any hazardous waste having the
characteristics identified under or listed pursuant to section
3001 of the Solid Waste Disposal Act (42 U.S.C. 6921) (but not
including any waste the regulation of which under the Solid Waste
Disposal Act (42 U.S.C. 6901 et seq.) has been suspended by Act
of Congress), (D) any toxic pollutant listed under section
1317(a) of this title, and (E) any imminently hazardous chemical
substance or mixture with respect to which the Administrator has
taken action pursuant to section 2606 of title 15.
- (d)
Civil penalties; factors considered in determining amount
Any person who violates section 1311, 1312, 1316, 1317, 1318,
1328, or 1345 of this title, or any permit condition or limitation
implementing any of such sections in a permit issued under section
1342 of this title by the Administrator, or by a State, or in a
permit issued under section 1344 of this title by a State,,
[1] or any requirement imposed in a pretreatment program
approved under section 1342(a)(3) or 1342(b)(8) of this title, and
any person who violates any order issued by the Administrator under
subsection (a) of this section, shall be subject to a civil penalty
not to exceed $25,000 per day for each violation. In determining
the amount of a civil penalty the court shall consider the
seriousness of the violation or violations, the economic benefit
(if any) resulting from the violation, any history of such
violations, any good-faith efforts to comply with the applicable
requirements, the economic impact of the penalty on the violator,
and such other matters as justice may require. For purposes of
this subsection, a single operational upset which leads to
simultaneous violations of more than one pollutant parameter shall
be treated as a single violation.
- (e)
State liability for judgments and expenses
Whenever a municipality is a party to a civil action brought by
the United States under this section, the State in which such
municipality is located shall be joined as a party. Such State
shall be liable for payment of any judgment, or any expenses
incurred as a result of complying with any judgment, entered
against the municipality in such action to the extent that the laws
of that State prevent the municipality from raising revenues needed
to comply with such judgment.
- (f)
Wrongful introduction of pollutant into treatment works
Whenever, on the basis of any information available to him, the
Administrator finds that an owner or operator of any source is
introducing a pollutant into a treatment works in violation of
subsection (d) of section 1317 of this title, the Administrator may
notify the owner or operator of such treatment works and the State
of such violation. If the owner or operator of the treatment works
does not commence appropriate enforcement action within 30 days of
the date of such notification, the Administrator may commence a
civil action for appropriate relief, including but not limited to,
a permanent or temporary injunction, against the owner or operator
of such treatment works. In any such civil action the
Administrator shall join the owner or operator of such source as a
party to the action. Such action shall be brought in the district
court of the United States in the district in which the treatment
works is located. Such court shall have jurisdiction to restrain
such violation and to require the owner or operator of the
treatment works and the owner or operator of the source to take
such action as may be necessary to come into compliance with this
chapter. Notice of commencement of any such action shall be given
to the State. Nothing in this subsection shall be construed to
limit or prohibit any other authority the Administrator may have
under this chapter.
- (g)
Administrative penalties
- (1)
Violations
Whenever on the basis of any information available -
- (A)
the Administrator finds that any person has violated
section 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this
title, or has violated any permit condition or limitation
implementing any of such sections in a permit issued under
section 1342 of this title by the Administrator or by a State,
or in a permit issued under section 1344 of this title by a
State, or
- (B)
the Secretary of the Army (hereinafter in this subsection
referred to as the ''Secretary'') finds that any person has
violated any permit condition or limitation in a permit issued
under section 1344 of this title by the Secretary,
the Administrator or Secretary, as the case may be, may, after
consultation with the State in which the violation occurs, assess
a class I civil penalty or a class II civil penalty under this
subsection.
- (2)
Classes of penalties
- (A)
Class I
The amount of a class I civil penalty under paragraph (1) may
not exceed $10,000 per violation, except that the maximum
amount of any class I civil penalty under this subparagraph
shall not exceed $25,000. Before issuing an order assessing a
civil penalty under this subparagraph, the Administrator or the
Secretary, as the case may be, shall give to the person to be
assessed such penalty written notice of the Administrator's or
Secretary's proposal to issue such order and the opportunity to
request, within 30 days of the date the notice is received by
such person, a hearing on the proposed order. Such hearing
shall not be subject to section 554 or 556 of title 5, but
shall provide a reasonable opportunity to be heard and to
present evidence.
- (B)
Class II
The amount of a class II civil penalty under paragraph (1)
may not exceed $10,000 per day for each day during which the
violation continues; except that the maximum amount of any
class II civil penalty under this subparagraph shall not exceed
$125,000. Except as otherwise provided in this subsection, a
class II civil penalty shall be assessed and collected in the
same manner, and subject to the same provisions, as in the case
of civil penalties assessed and collected after notice and
opportunity for a hearing on the record in accordance with
section 554 of title 5. The Administrator and the Secretary may
issue rules for discovery procedures for hearings under this
subparagraph.
- (3)
Determining amount
In determining the amount of any penalty assessed under this
subsection, the Administrator or the Secretary, as the case may
be, shall take into account the nature, circumstances, extent and
gravity of the violation, or violations, and, with respect to the
violator, ability to pay, any prior history of such violations,
the degree of culpability, economic benefit or savings (if any)
resulting from the violation, and such other matters as justice
may require. For purposes of this subsection, a single
operational upset which leads to simultaneous violations of more
than one pollutant parameter shall be treated as a single
violation.
- (4)
Rights of interested persons
- (A)
Public notice
Before issuing an order assessing a civil penalty under this
subsection the Administrator or Secretary, as the case may be,
shall provide public notice of and reasonable opportunity to
comment on the proposed issuance of such order.
- (B)
Presentation of evidence
Any person who comments on a proposed assessment of a penalty
under this subsection shall be given notice of any hearing held
under this subsection and of the order assessing such penalty.
In any hearing held under this subsection, such person shall
have a reasonable opportunity to be heard and to present
evidence.
- (C)
Rights of interested persons to a hearing
If no hearing is held under paragraph (2) before issuance of
an order assessing a penalty under this subsection, any person
who commented on the proposed assessment may petition, within
30 days after the issuance of such order, the Administrator or
Secretary, as the case may be, to set aside such order and to
provide a hearing on the penalty. If the evidence presented by
the petitioner in support of the petition is material and was
not considered in the issuance of the order, the Administrator
or Secretary shall immediately set aside such order and provide
a hearing in accordance with paragraph (2)(A) in the case of a
class I civil penalty and paragraph (2)(B) in the case of a
class II civil penalty. If the Administrator or Secretary
denies a hearing under this subparagraph, the Administrator or
Secretary shall provide to the petitioner, and publish in the
Federal Register, notice of and the reasons for such denial.
- (5)
Finality of order
An order issued under this subsection shall become final 30
days after its issuance unless a petition for judicial review is
filed under paragraph (8) or a hearing is requested under
paragraph (4)(C). If such a hearing is denied, such order shall
become final 30 days after such denial.
- (6)
Effect of order
- (A)
Limitation on actions under other sections
Action taken by the Administrator or the Secretary, as the
case may be, under this subsection shall not affect or limit
the Administrator's or Secretary's authority to enforce any
provision of this chapter; except that any violation -
- (i)
with respect to which the Administrator or the
Secretary has commenced and is diligently prosecuting an
action under this subsection,
- (ii)
with respect to which a State has commenced and is
diligently prosecuting an action under a State law comparable
to this subsection, or
- (iii)
for which the Administrator, the Secretary, or the
State has issued a final order not subject to further
judicial review and the violator has paid a penalty assessed
under this subsection, or such comparable State law, as the
case may be,
shall not be the subject of a civil penalty action under
subsection (d) of this section or section 1321(b) of this title
or section 1365 of this title.
- (B)
Applicability of limitation with respect to citizen suits
The limitations contained in subparagraph (A) on civil
penalty actions under section 1365 of this title shall not
apply with respect to any violation for which -
- (i)
a civil action under section 1365(a)(1) of this title
has been filed prior to commencement of an action under this
subsection, or
- (ii)
notice of an alleged violation of section 1365(a)(1)
of this title has been given in accordance with section
1365(b)(1)(A) of this title prior to commencement of an
action under this subsection and an action under section
1365(a)(1) of this title with respect to such alleged
violation is filed before the 120th day after the date on
which such notice is given.
- (7)
Effect of action on compliance
No action by the Administrator or the Secretary under this
subsection shall affect any person's obligation to comply with
any section of this chapter or with the terms and conditions of
any permit issued pursuant to section 1342 or 1344 of this title.
- (8)
Judicial review
Any person against whom a civil penalty is assessed under this
subsection or who commented on the proposed assessment of such
penalty in accordance with paragraph (4) may obtain review of
such assessment -
- (A)
in the case of assessment of a class I civil penalty, in
the United States District Court for the District of Columbia
or in the district in which the violation is alleged to have
occurred, or
- (B)
in the case of assessment of a class II civil penalty, in
United States Court of Appeals for the District of Columbia
Circuit or for any other circuit in which such person resides
or transacts business,
by filing a notice of appeal in such court within the 30-day
period beginning on the date the civil penalty order is issued
and by simultaneously sending a copy of such notice by certified
mail to the Administrator or the Secretary, as the case may be,
and the Attorney General. The Administrator or the Secretary
shall promptly file in such court a certified copy of the record
on which the order was issued. Such court shall not set aside or
remand such order unless there is not substantial evidence in the
record, taken as a whole, to support the finding of a violation
or unless the Administrator's or Secretary's assessment of the
penalty constitutes an abuse of discretion and shall not impose
additional civil penalties for the same violation unless the
Administrator's or Secretary's assessment of the penalty
constitutes an abuse of discretion.
- (9)
Collection
If any person fails to pay an assessment of a civil penalty -
- (A)
after the order making the assessment has become final,
or
- (B)
after a court in an action brought under paragraph (8)
has entered a final judgment in favor of the Administrator or
the Secretary, as the case may be,
the Administrator or the Secretary shall request the Attorney
General to bring a civil action in an appropriate district court
to recover the amount assessed (plus interest at currently
prevailing rates from the date of the final order or the date of
the final judgment, as the case may be). In such an action, the
validity, amount, and appropriateness of such penalty shall not
be subject to review. Any person who fails to pay on a timely
basis the amount of an assessment of a civil penalty as described
in the first sentence of this paragraph shall be required to pay,
in addition to such amount and interest, attorneys fees and costs
for collection proceedings and a quarterly nonpayment penalty for
each quarter during which such failure to pay persists. Such
nonpayment penalty shall be in an amount equal to 20 percent of
the aggregate amount of such person's penalties and nonpayment
penalties which are unpaid as of the beginning of such quarter.
- (10)
Subpoenas
The Administrator or Secretary, as the case may be, may issue
subpoenas for the attendance and testimony of witnesses and the
production of relevant papers, books, or documents in connection
with hearings under this subsection. 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.
- (11)
Protection of existing procedures
Nothing in this subsection shall change the procedures existing
on the day before February 4, 1987, under other subsections of
this section for issuance and enforcement of orders by the
Administrator.
Footnotes
[1] So in original.
[Notes]
