Federal Facilities Clean Water Compliance Act of 1997

Summary: Federal Facilities Clean Water Compliance Act of 1997 - Amends the Federal Water Pollution Control Act (the Act) to waive immunity of the United States with respect to Federal, State, interstate, and local requirements, administrative authorities, sanctions, and penalties concerning water pollution control. 
Absolves Federal employees of personal liability for civil penalties under water pollution control laws for acts or omissions within the scope of official duties.  Makes Federal employees subject to criminal sanctions under Federal or State water pollution control laws, but prohibits applying criminal sanctions to Federal agencies.  Permits the imposition of civil penalties or the issuance of compliance orders against Federal agencies determined to be in violation of specified water pollution control or permit requirements. Authorizes the suspension or revocation of permits. 
Permits the issuance of emergency administrative orders to, and penalties against, Federal agencies.  Prohibits an administrative action commenced by the Administrator of the Environmental Protection Agency or the Secretary of the Army for violations by Federal facilities from precluding a civil enforcement action for the same violations.  Permits citizen civil actions against Federal agencies alleged to have violated orders issued by the Administrator or the Secretary or that fail to pay a penalty within one year of the effective date of a final order. 
Includes Federal agencies within the definition of "person" for purposes of the Act.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Facilities Clean Water 
Compliance Act of 1997''.

SEC. 2. APPLICATION OF CERTAIN PROVISIONS TO FEDERAL FACILITIES.

    Section 313(a) of the Federal Water Pollution Control Act (33 
U.S.C. 1323(a)) is amended by striking the third sentence and all that 
follows through the period at the end of the last sentence and 
inserting the following: ``The Federal, State, interstate, and local 
substantive and procedural requirements, administrative authority, and 
process and sanctions referred to in this subsection include, but are 
not limited to, all administrative orders and all civil and 
administrative penalties and fines, regardless of whether such 
penalties or fines are punitive or coercive in nature or are imposed 
for isolated, intermittent, or continuing violations. The United States 
hereby expressly waives any immunity otherwise applicable to the United 
States with respect to any such requirement, administrative authority, 
and process and sanctions (including, but not limited to, any 
injunctive relief, administrative order or civil or administrative 
penalty or fine referred to in the preceding sentence, or reasonable 
service charge). The reasonable service charges referred to in this 
subsection include, but are not limited to, fees or charges assessed in 
connection with the processing and issuance of permits, renewal of 
permits, amendments to permits, review of plans, studies, and other 
documents, and inspection and monitoring of facilities, as well as any 
other nondiscriminatory charges that are assessed in connection with a 
Federal, State, interstate, or local water pollution regulatory 
program. No agent, employee, or officer of the United States shall be 
personally liable for any civil penalty under any Federal, State, 
interstate, or local water pollution law with respect to any act or 
omission within the scope of the official duties of the agent, 
employee, or officer. An agent, employee, or officer of the United 
States shall be subject to any criminal sanction (including, but not 
limited to, any fine or imprisonment) under any Federal or State water 
pollution law, but no department, agency, or instrumentality of the 
executive, legislative, or judicial branch of the Federal Government 
shall be subject to any such sanction.''.

SEC. 3. FEDERAL FACILITY ENFORCEMENT.

    Section 309 of the Federal Water Pollution Control Act (33 U.S.C. 
1319) is amended by adding at the end the following:
    ``(h) Federal Facility Enforcement.--
            ``(1) Compliance orders.--
                    ``(A) In general.--Whenever on the basis of any 
                information available to him--
                            ``(i) the Administrator determines that any 
                        department, agency, or instrumentality of the 
                        United States has violated or is in violation 
                        of section 301, 302, 306, 307, 308, 311, 318, 
                        or 405 of this Act, or has violated or is in 
                        violation of any permit condition or limitation 
                        implementing any such section in a permit 
                        issued under section 402 of this Act by the 
                        Administrator or by a State, or in a permit 
                        issued under section 404 of this Act by a 
                        State, or any requirement imposed in a 
                        pretreatment program approved under section 
                        402(a)(3) or 402(b)(8) of this Act, or any 
                        requirement imposed under section 402(b)(9) of 
                        this Act;
                            ``(ii) the Secretary of the Army determines 
                        that any department, agency, or instrumentality 
                        of the United States has violated or is in 
                        violation of section 301 with regard to 
                        discharges of dredged or fill material or any 
                        condition or limitation in a permit issued 
                        under section 404 of this Act; and
                            ``(iii) the Secretary of the department in 
                        which the Coast Guard is operating determines 
                        that any department, agency, or instrumentality 
                        of the United States has violated any provision 
                        of section 311 of this Act or any of its 
                        implementing regulations;
                the Administrator or Secretary, as applicable, may 
                issue an order to assess an administrative penalty for 
                any past or current violation or require compliance or 
                correction of any past or current violation immediately 
                or within a specified time period, or both.
                    ``(B) Required terms.--Any order issued under this 
                subsection--
                            ``(i) by the Administrator may include a 
                        suspension or revocation of any permit issued 
                        by the Administrator or a State under sections 
                        402 and 404 of this Act; and
                            ``(ii) by the Secretary of the Army may 
                        include a suspension or revocation of any 
                        permit issued by the Secretary of the Army 
                        under section 404 of this Act; and
        shall state with reasonable specificity the nature of the 
        violation. Any penalty assessed in the order shall not exceed 
        $25,000 per day for each violation.
            ``(2) Public hearing.--Any order under this section shall 
        become final unless, not later than 30 days after the order is 
        served, a department, agency, or instrumentality of the United 
        States named therein requests a public hearing. Upon such 
        request, the Administrator or Secretary, as applicable, shall 
        promptly conduct a public hearing. Such public hearing shall be 
        conducted in accordance with section 554 of title 5, United 
        States Code. In connection with any proceeding under this 
        subsection, the Administrator or Secretary may issue subpoenas 
        for the attendance and testimony of witnesses and the 
        production of relevant papers, books, and documents and may 
        promulgate rules for discovery procedures.
            ``(3) Violation of compliance orders.--If a violator fails 
        to take corrective action within the time specified in an order 
        issued under paragraph (1)--
                    ``(A) the Administrator or Secretary, as 
                applicable, may assess a civil penalty of not more than 
                $25,000 for each day of continued noncompliance with 
                the order; and
                    ``(B)(i) the Administrator may suspend or revoke 
                any permit issued pursuant to section 402 or 404 of 
                this Act which is the subject of the order, whether 
                issued by the Administrator or the State; and
                    ``(ii) the Secretary of the Army may suspend or 
                revoke any permit issued pursuant to section 404 of 
                this Act.
            ``(4) Determination of amount of penalty.--In determining 
        the amount of any penalty assessed under this subsection, the 
        Administrator or Secretary, as the case may be, shall consider 
        the seriousness of each violation or violations, the violator's 
        economic benefit or savings (if any) resulting from each 
        violation, any history of prior violations, any good-faith 
        efforts to avoid noncompliance or to comply with the applicable 
        requirements, the violator's ability to pay the penalty, and 
        such other matters in mitigation and aggravation as justice may 
        require.
            ``(5) Emergency orders at federal facilities.--The 
        Administrator may issue an emergency administrative order to, 
        and assess an administrative penalty for violations of the 
        order against, a Federal agency under the same circumstances as 
        an emergency order may be issued to, and such penalty for 
        violation of such order may be assessed, against any other 
        person under this title.
            ``(6) Consultation with the administrator.--No 
        administrative order, including any emergency order or field 
        citation, issued to a Federal department, agency or 
        instrumentality under this subsection shall become final until 
        such department, agency, or instrumentality has had the 
        opportunity to confer with the Administrator.
            ``(7) Existing compliance orders.--Nothing in this section 
        shall be construed to alter, modify, or change in any manner 
        any Federal facility compliance agreement, permit, 
        administrative order or judicial order that is in effect on the 
        effective date of this subsection.
            ``(8) Actions and rights of interested persons.--No 
        administrative action which has been commenced by the 
        Administrator or the Secretary under this subsection with 
        respect to a violation shall preclude a civil enforcement 
        action under section 505 of this Act for the same violation or 
        violations.
            ``(9) Special rules.--
                    ``(A) Public notice.--Before issuing an order 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 order under this subsection 
                shall be given notice of any hearing held under 
paragraph (2) and the order. 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), any person 
                who commented on the proposed order 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 order. 
                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). The 
                affected Federal department, agency, or instrumentality 
                shall be given notice of any hearing and shall be 
                permitted to participate in such hearing. If the 
                Administrator or Secretary denies a hearing under this 
                subparagraph, the Administrator shall provide to the 
                petitioner and to the affected Federal department, 
                agency, or instrumentality, and publish in the Federal 
                Register, notice of and the reasons for such denial.
                    ``(D) Finality of order.--An order issued under 
                this subsection shall become final 30 days after its 
                issuance unless the order is withdrawn or a hearing is 
                requested under paragraph (2) or (5). If such a hearing 
                is denied, such order shall become final 30 days after 
                such denial. If such a hearing is granted, the order 
                shall become final 30 days after the decision to uphold 
                the order or to issue a new order.
            ``(10) Citizen's civil action.--Any person may commence a 
        civil action on his or her own behalf against--
                    ``(A) any Federal agency that is alleged to have 
                violated or to be in violation of any order issued by 
                the Administrator or the Secretary under this title; or
                    ``(B) any Federal agency that fails, within 1 year 
                of the effective date of a final order, to pay a 
                penalty assessed by the Administrator or the Secretary 
                under this subsection.''.

SEC. 4. DETERMINATION OF AMOUNT OF CIVIL PENALTIES.

    The second sentence of section 309(d) of the Federal Water 
Pollution Control Act (33 U.S.C. 1319(d)) is amended by inserting ``the 
amount of any penalty previously imposed on the violator by a court or 
administrative agency for the same violation or violations,'' after 
``economic impact of the penalty on the violator,''.

SEC. 5. DEFINITION OF PERSON.

    (a) General Definitions.--Section 502(5) of the Federal Water 
Pollution Control Act (33 U.S.C. 1362(5)) is amended by inserting 
before the period at the end the following: ``and includes any 
department, agency, or instrumentality of the United States''.
    (b) Oil and Hazardous Substance Liability Program.--Section 
311(a)(7) of such Act (33 U.S.C. 1321(a)(7)) is amended by inserting 
before the semicolon at the end the following: ``and any department, 
agency, or instrumentality of the United States''.

SEC. 6. DEFINITION OF RADIOACTIVE MATERIAL.

    Section 502 of the Federal Water Pollution Control Act (33 U.S.C. 
1362) is amended by adding at the end the following:
    ``(21) The term `radioactive materials' includes source materials, 
special nuclear materials, and byproduct materials (as such terms are 
defined under the Atomic Energy Act of 1954) which are used, produced, 
or managed at facilities not licensed by the Nuclear Regulatory 
Commission.''.