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CHAPTER 26 - WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER III - STANDARDS AND ENFORCEMENT
-HEAD-
Sec. 1317. Toxic and pretreatment effluent standards
-STATUTE-
(a) Toxic pollutant list; revision; hearing; promulgation of
standards; effective date; consultation
(1) On and after December 27, 1977, the list of toxic pollutants
or combination of pollutants subject to this chapter shall consist
of those toxic pollutants listed in table 1 of Committee Print
Numbered 95-30 of the Committee on Public Works and Transportation
of the House of Representatives, and the Administrator shall
publish, not later than the thirtieth day after December 27, 1977,
that list. From time to time thereafter, the Administrator may
revise such list and the Administrator is authorized to add to or
remove from such list any pollutant. The Administrator in
publishing any revised list, including the addition or removal of
any pollutant from such list, shall take into account toxicity of
the pollutant, its persistence, degradability, the usual or
potential presence of the affected organisms in any waters, the
importance of the affected organisms, and the nature and extent of
the effect of the toxic pollutant on such organisms. A
determination of the Administrator under this paragraph shall be
final except that if, on judicial review, such determination was
based on arbitrary and capricious action of the Administrator, the
Administrator shall make a redetermination.
(2) Each toxic pollutant listed in accordance with paragraph (1)
of this subsection shall be subject to effluent limitations
resulting from the application of the best available technology
economically achievable for the applicable category or class of
point sources established in accordance with sections 1311(b)(2)(A)
and 1314(b)(2) of this title. The Administrator, in his discretion,
may publish in the Federal Register a proposed effluent standard
(which may include a prohibition) establishing requirements for a
toxic pollutant which, if an effluent limitation is applicable to a
class or category of point sources, shall be applicable to such
category or class only if such standard imposes more stringent
requirements. Such published effluent standard (or prohibition)
shall take into account the toxicity of the pollutant, its
persistence, degradability, the usual or potential presence of the
affected organisms in any waters, the importance of the affected
organisms and the nature and extent of the effect of the toxic
pollutant on such organisms, and the extent to which effective
control is being or may be achieved under other regulatory
authority. The Administrator shall allow a period of not less than
sixty days following publication of any such proposed effluent
standard (or prohibition) for written comment by interested persons
on such proposed standard. In addition, if within thirty days of
publication of any such proposed effluent standard (or prohibition)
any interested person so requests, the Administrator shall hold a
public hearing in connection therewith. Such a public hearing shall
provide an opportunity for oral and written presentations, such
cross-examination as the Administrator determines is appropriate on
disputed issues of material fact, and the transcription of a
verbatim record which shall be available to the public. After
consideration of such comments and any information and material
presented at any public hearing held on such proposed standard or
prohibition, the Administrator shall promulgate such standard (or
prohibition) with such modification as the Administrator finds are
justified. Such promulgation by the Administrator shall be made
within two hundred and seventy days after publication of proposed
standard (or prohibition). Such standard (or prohibition) shall be
final except that if, on judicial review, such standard was not
based on substantial evidence, the Administrator shall promulgate a
revised standard. Effluent limitations shall be established in
accordance with sections 1311(b)(2)(A) and 1314(b)(2) of this title
for every toxic pollutant referred to in table 1 of Committee Print
Numbered 95-30 of the Committee on Public Works and Transportation
of the House of Representatives as soon as practicable after
December 27, 1977, but no later than July 1, 1980. Such effluent
limitations or effluent standards (or prohibitions) shall be
established for every other toxic pollutant listed under paragraph
(1) of this subsection as soon as practicable after it is so
listed.
(3) Each such effluent standard (or prohibition) shall be
reviewed and, if appropriate, revised at least every three years.
(4) Any effluent standard promulgated under this section shall be
at that level which the Administrator determines provides an ample
margin of safety.
(5) When proposing or promulgating any effluent standard (or
prohibition) under this section, the Administrator shall designate
the category or categories of sources to which the effluent
standard (or prohibition) shall apply. Any disposal of dredged
material may be included in such a category of sources after
consultation with the Secretary of the Army.
(6) Any effluent standard (or prohibition) established pursuant
to this section shall take effect on such date or dates as
specified in the order promulgating such standard, but in no case,
more than one year from the date of such promulgation. If the
Administrator determines that compliance within one year from the
date of promulgation is technologically infeasible for a category
of sources, the Administrator may establish the effective date of
the effluent standard (or prohibition) for such category at the
earliest date upon which compliance can be feasibly attained by
sources within such category, but in no event more than three years
after the date of such promulgation.
(7) Prior to publishing any regulations pursuant to this section
the Administrator shall, to the maximum extent practicable within
the time provided, consult with appropriate advisory committees,
States, independent experts, and Federal departments and agencies.
(b) Pretreatment standards; hearing; promulgation; compliance
period; revision; application to State and local laws
(1) The Administrator shall, within one hundred and eighty days
after October 18, 1972, and from time to time thereafter, publish
proposed regulations establishing pretreatment standards for
introduction of pollutants into treatment works (as defined in
section 1292 of this title) which are publicly owned for those
pollutants which are determined not to be susceptible to treatment
by such treatment works or which would interfere with the operation
of such treatment works. Not later than ninety days after such
publication, and after opportunity for public hearing, the
Administrator shall promulgate such pretreatment standards.
Pretreatment standards under this subsection shall specify a time
for compliance not to exceed three years from the date of
promulgation and shall be established to prevent the discharge of
any pollutant through treatment works (as defined in section 1292
of this title) which are publicly owned, which pollutant interferes
with, passes through, or otherwise is incompatible with such works.
If, in the case of any toxic pollutant under subsection (a) of this
section introduced by a source into a publicly owned treatment
works, the treatment by such works removes all or any part of such
toxic pollutant and the discharge from such works does not violate
that effluent limitation or standard which would be applicable to
such toxic pollutant if it were discharged by such source other
than through a publicly owned treatment works, and does not prevent
sludge use or disposal by such works in accordance with section
1345 of this title, then the pretreatment requirements for the
sources actually discharging such toxic pollutant into such
publicly owned treatment works may be revised by the owner or
operator of such works to reflect the removal of such toxic
pollutant by such works.
(2) The Administrator shall, from time to time, as control
technology, processes, operating methods, or other alternatives
change, revise such standards following the procedure established
by this subsection for promulgation of such standards.
(3) When proposing or promulgating any pretreatment standard
under this section, the Administrator shall designate the category
or categories of sources to which such standard shall apply.
(4) Nothing in this subsection shall affect any pretreatment
requirement established by any State or local law not in conflict
with any pretreatment standard established under this subsection.
(c) New sources of pollutants into publicly owned treatment works
In order to insure that any source introducing pollutants into a
publicly owned treatment works, which source would be a new source
subject to section 1316 of this title if it were to discharge
pollutants, will not cause a violation of the effluent limitations
established for any such treatment works, the Administrator shall
promulgate pretreatment standards for the category of such sources
simultaneously with the promulgation of standards of performance
under section 1316 of this title for the equivalent category of new
sources. Such pretreatment standards shall prevent the discharge of
any pollutant into such treatment works, which pollutant may
interfere with, pass through, or otherwise be incompatible with
such works.
(d) Operation in violation of standards unlawful
After the effective date of any effluent standard or prohibition
or pretreatment standard promulgated under this section, it shall
be unlawful for any owner or operator of any source to operate any
source in violation of any such effluent standard or prohibition or
pretreatment standard.
(e) Compliance date extension for innovative pretreatment systems
In the case of any existing facility that proposes to comply with
the pretreatment standards of subsection (b) of this section by
applying an innovative system that meets the requirements of
section 1311(k) of this title, the owner or operator of the
publicly owned treatment works receiving the treated effluent from
such facility may extend the date for compliance with the
applicable pretreatment standard established under this section for
a period not to exceed 2 years -
(1) if the Administrator determines that the innovative system
has the potential for industrywide application, and
(2) if the Administrator (or the State in consultation with the
Administrator, in any case in which the State has a pretreatment
program approved by the Administrator) -
(A) determines that the proposed extension will not cause the
publicly owned treatment works to be in violation of its permit
under section 1342 of this title or of section 1345 of this
title or to contribute to such a violation, and
(B) concurs with the proposed extension.
-SOURCE-
(June 30, 1948, ch. 758, title III, Sec. 307, as added Pub. L.
92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 856; amended Pub. L.
95-217, Secs. 53(a), (b), 54(a), Dec. 27, 1977, 91 Stat. 1589-1591;
Pub. L. 100-4, title III, Sec. 309(a), Feb. 4, 1987, 101 Stat. 41.)
-MISC1-
AMENDMENTS
1987 - Subsec. (e). Pub. L. 100-4 added subsec. (e).
1977 - Subsec. (a)(1). Pub. L. 95-217, Sec. 53(a), substituted
"On and after December 27, 1977, the list of toxic pollutants or
combination of pollutants subject to this chapter shall consist of
those toxic pollutants listed in table 1 of Committee Print
Numbered 95-30 of the Committee on Public Works and Transportation
of the House of Representatives, and the Administrator shall
publish, not later than the thirtieth day after December 27, 1977,
that list" for "The Administrator shall, within ninety days after
October 18, 1972, publish (and from time to time thereafter revise)
a list which includes any toxic pollutant or combination of such
pollutants for which an effluent standard (which may include a
prohibition of the discharge of such pollutants or combination of
such pollutants) will be established under this section" and
inserted provision for the revision of the list and for the
finality of the Administrator's determination except when that
determination is arbitrary and capricious.
Subsec. (a)(2). Pub. L. 95-217, Sec. 53(a), expanded provisions
covering effluent limitations and the establishment of effluent
standards (or prohibitions), introduced provisions relating to the
application of the best available technology economically
achievable for the applicable category or class of point sources
established in accordance with sections 1311(b)(2)(A) and
1314(b)(2) of this title, inserted provision that published
effluent standards take into account the extent to which effective
control is being or may be achieved under other regulatory
authority, inserted provision for a sixty day minimum period
following publication of proposed effluent standards for written
comment, substituted two hundred and seventy days for six months as
the period following publication of proposed standards during which
period standards (or prohibitions) must be promulgated, and
inserted provision for the finality of effluent limitations (or
prohibitions) except if, on judicial review, the standard was not
based on substantial evidence.
Subsec. (a)(3). Pub. L. 95-217, Sec. 53(a), struck out provision
for the immediate promulgation of revised effluent standards (or
prohibitions) for pollutants or combinations of pollutants if,
after public hearings, the Administrator found that a modification
of such proposed standards (or prohibitions) was justified. See
subsec. (a)(2) of this section.
Subsec. (a)(6). Pub. L. 95-217, Sec. 53(b), inserted provision
that if the Administrator determines that compliance with effluent
standards (or prohibitions) within one year from the date of
promulgation is technologically infeasible for a category of
sources, the Administrator may establish the effective date of the
effluent standard (or prohibition) for that category at the
earliest date upon which compliance can be feasibly attained by
sources within such category, but in no event more than three years
after the date of such promulgation.
Subsec. (b)(1). Pub. L. 95-217, Sec. 54(a), inserted provision
that if, in the case of any toxic pollutant under subsection (a) of
this section introduced by a source into a publicly owned treatment
works, the treatment by the works removes all or any part of the
toxic pollutant and the discharge from the works does not violate
that effluent limitation or standard which would be applicable to
the toxic pollutant if it were discharged by the source other than
through a publicly owned treatment works, and does not prevent
sludge use or disposal by the works in accordance with section 1345
of this title, then the pretreatment requirements for the sources
actually discharging the toxic pollutant into the publicly owned
treatment works may be revised by the owner or operator of the
works to reflect the removal of the toxic pollutant by the works.
-CHANGE-
CHANGE OF NAME
Committee on Public Works and Transportation of House of
Representatives treated as referring to Committee on Transportation
and Infrastructure of House of Representatives by section 1(a) of
Pub. L. 104-14, set out as a note preceding section 21 of Title 2,
The Congress.
-MISC2-
INCREASE IN EPA EMPLOYEES
Section 309(b) of Pub. L. 100-4 provided that: "The Administrator
shall take such actions as may be necessary to increase the number
of employees of the Environmental Protection Agency in order to
effectively implement pretreatment requirements under section 307
of the Federal Water Pollution Control Act [33 U.S.C. 1317]."
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1288, 1311, 1313, 1314,
1319, 1323, 1341, 1342, 1344, 1365, 1367, 1369, 1374 of this title;
title 42 sections 6924, 6925, 6939, 6939e, 9601.
-End-
-CITE-
33 USC Sec. 1318 01/19/04
-EXPCITE-
TITLE 33 - NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26 - WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER III - STANDARDS AND ENFORCEMENT
-HEAD-
Sec. 1318. Records and reports; inspections
-STATUTE-
(a) Maintenance; monitoring equipment; entry; access to information
Whenever required to carry out the objective of this chapter,
including but not limited to (1) developing or assisting in the
development of any effluent limitation, or other limitation,
prohibition, or effluent standard, pretreatment standard, or
standard of performance under this chapter; (2) determining whether
any person is in violation of any such effluent limitation, or
other limitation, prohibition or effluent standard, pretreatment
standard, or standard of performance; (3) any requirement
established under this section; or (4) carrying out sections 1315,
1321, 1342, 1344 (relating to State permit programs), 1345, and
1364 of this title -
(A) the Administrator shall require the owner or operator of
any point source to (i) establish and maintain such records, (ii)
make such reports, (iii) install, use, and maintain such
monitoring equipment or methods (including where appropriate,
biological monitoring methods), (iv) sample such effluents (in
accordance with such methods, at such locations, at such
intervals, and in such manner as the Administrator shall
prescribe), and (v) provide such other information as he may
reasonably require; and
(B) the Administrator or his authorized representative
(including an authorized contractor acting as a representative of
the Administrator), upon presentation of his credentials -
(i) shall have a right of entry to, upon, or through any
premises in which an effluent source is located or in which any
records required to be maintained under clause (A) of this
subsection are located, and
(ii) may at reasonable times have access to and copy any
records, inspect any monitoring equipment or method required
under clause (A), and sample any effluents which the owner or
operator of such source is required to sample under such
clause.
(b) Availability to public; trade secrets exception; penalty for
disclosure of confidential information
Any records, reports, or information obtained under this section
(1) shall, in the case of effluent data, be related to any
applicable effluent limitations, toxic, pretreatment, or new source
performance standards, and (2) shall be available to the public,
except that upon a showing satisfactory to the Administrator by any
person that records, reports, or information, or particular part
thereof (other than effluent data), to which the Administrator has
access under this section, if made public would divulge methods or
processes entitled to protection as trade secrets of such person,
the Administrator shall consider such record, report, or
information, or particular portion thereof confidential in
accordance with the purposes of section 1905 of title 18. Any
authorized representative of the Administrator (including an
authorized contractor acting as a representative of the
Administrator) who knowingly or willfully publishes, divulges,
discloses, or makes known in any manner or to any extent not
authorized by law any information which is required to be
considered confidential under this subsection shall be fined not
more than $1,000 or imprisoned not more than 1 year, or both.
Nothing in this subsection shall prohibit the Administrator or an
authorized representative of the Administrator (including any
authorized contractor acting as a representative of the
Administrator) from disclosing records, reports, or information to
other officers, employees, or authorized representatives of the
United States concerned with carrying out this chapter or when
relevant in any proceeding under this chapter.
(c) Application of State law
Each State may develop and submit to the Administrator procedures
under State law for inspection, monitoring, and entry with respect
to point sources located in such State. If the Administrator finds
that the procedures and the law of any State relating to
inspection, monitoring, and entry are applicable to at least the
same extent as those required by this section, such State is
authorized to apply and enforce its procedures for inspection,
monitoring, and entry with respect to point sources located in such
State (except with respect to point sources owned or operated by
the United States).
(d) Access by Congress
Notwithstanding any limitation contained in this section or any
other provision of law, all information reported to or otherwise
obtained by the Administrator (or any representative of the
Administrator) under this chapter shall be made available, upon
written request of any duly authorized committee of Congress, to
such committee.
-SOURCE-
(June 30, 1948, ch. 758, title III, Sec. 308, as added Pub. L.
92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 858; amended Pub. L.
95-217, Sec. 67(c)(1), Dec. 27, 1977, 91 Stat. 1606; Pub. L. 100-4,
title III, Sec. 310, title IV, Sec. 406(d)(1), Feb. 4, 1987, 101
Stat. 41, 73.)
-MISC1-
AMENDMENTS
1987 - Subsec. (a). Pub. L. 100-4, Sec. 406(d)(1), substituted
"1345, and 1364" for "and 1364" in cl. (4).
Subsec. (a)(B). Pub. L. 100-4, Sec. 310(a)(2), inserted
"(including an authorized contractor acting as a representative of
the Administrator)" after "representative".
Subsec. (b). Pub. L. 100-4, Sec. 310(a)(1), substituted a period
and "Any authorized representative of the Administrator (including
an authorized contractor acting as a representative of the
Administrator) who knowingly or willfully publishes, divulges,
discloses, or makes known in any manner or to any extent not
authorized by law any information which is required to be
considered confidential under this subsection shall be fined not
more than $1,000 or imprisoned not more than 1 year, or both.
Nothing in this subsection shall prohibit the Administrator or an
authorized representative of the Administrator (including any
authorized contractor acting as a representative of the
Administrator) from disclosing records, reports, or information to
other officers, employees, or authorized representatives of the
United States concerned with carrying out this chapter or when
relevant in any proceeding under this chapter." for ", except that
such record, report, or information may be disclosed to other
officers, employees, or authorized representatives of the United
States concerned with carrying out this chapter or when relevant in
any proceeding under this chapter."
Subsec. (d). Pub. L. 100-4, Sec. 310(b), added subsec. (d).
1977 - Subsec. (a)(4). Pub. L. 95-217 inserted "1344 (relating to
State permit programs)," after "sections 1315, 1321, 1342," in
provisions preceding subpar. (A).
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1319, 1321, 1342, 1344,
1377 of this title; title 42 sections 7412, 9606.
-End-
-CITE-
33 USC Sec. 1319 01/19/04
-EXPCITE-
TITLE 33 - NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26 - WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER III - STANDARDS AND ENFORCEMENT
-HEAD-
Sec. 1319. Enforcement
-STATUTE-
(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 affector limit (continued)