```

[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3544 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 3544

  To amend the Federal Water Pollution Control Act to limit citizens 
suits against publicly owned treatment works, to provide for defenses, 
  to extend the period of a permit, to limit attorneys fees, and for 
                            other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                            December 1, 2011

Mr. McClintock introduced the following bill; which was referred to the 
             Committee on Transportation and Infrastructure

_______________________________________________________________________

                                 A BILL

 
  To amend the Federal Water Pollution Control Act to limit citizens 
suits against publicly owned treatment works, to provide for defenses, 
  to extend the period of a permit, to limit attorneys fees, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. LIMITATION ON CITIZEN SUIT PROVISION.

    Section 505 of the Federal Water Pollution Control Act (33 U.S.C. 
1365) is amended--
            (1) in subsection (a) by striking ``subsection (b)'' and 
        inserting ``subsections (b) and (i)''; and
            (2) by adding at the end the following:
    ``(i) Limitation for POTW Suits.--
            ``(1) In general.--No action may be commenced under 
        subsection (a)(1) by a citizen with respect to a publicly owned 
        treatment works to enforce an effluent standard or limitation 
        under this Act or an order issued by the Administrator or a 
        State with respect to such a standard or limitation unless the 
        publicly owned treatment works is in significant non-
        compliance, as defined in the Environmental Protection Agency's 
        December 12, 1996, guidance document entitled `A General Design 
        for SNC Redefinition Enhancement in PCS'.
            ``(2) Exception.--Notwithstanding paragraph (1), no action 
        may be commenced under subsection (a)(1) with respect to a 
        publicly owned treatment works that is in significant non-
        compliance based on a manual designation, as defined in the 
        Environmental Protection Agency's December 12, 1996, guidance 
        document entitled `A General Design for SNC Redefinition 
        Enhancement in PCS'.''.

SEC. 2. AFFIRMATIVE DEFENSES.

    Section 309 of the Federal Water Pollution Control Act (33 U.S.C. 
1319) is amended by adding at the end the following:
    ``(h) Affirmative Defenses.--
            ``(1) In general.--There shall be no liability under this 
        Act for a person otherwise liable for the unlawful discharge of 
        a pollutant from a publicly owned treatment works who can 
        establish by a preponderance of the evidence that the immediate 
        cause of the unlawful discharge and any damages was--
                    ``(A) an act of God;
                    ``(B) an act of war;
                    ``(C) an act or omission of a third party other 
                than an employee or agent of the defendant, or than one 
                whose act or omission occurs in connection with a 
                contractual relationship, existing directly or 
                indirectly, with the defendant, if the defendant 
                establishes by a preponderance of the evidence that--
                            ``(i) he exercised due care in light of all 
                        relevant facts and circumstances; and
                            ``(ii) he took precautions against 
                        foreseeable acts or omissions of any such third 
                        party and the consequences that could 
                        foreseeably result from such acts or omissions; 
                        or
                    ``(D) any combination of the foregoing 
                subparagraphs.
            ``(2) Additional defenses.--All general defenses, 
        affirmative defenses, and bars to prosecution that may apply 
        with respect to other Federal criminal offenses may apply under 
        this Act and shall be determined by the courts of the United 
        States according to the principles of common law as they may be 
        interpreted in the light of reason and experience. Concepts of 
        justification and excuse applicable under this section may be 
        developed in the light of reason and experience.''.

SEC. 3. WAITING PERIOD.

    In implementing the Federal Water Pollution Control Act, the 
Administrator of the Environmental Protection Agency or a State, as the 
case may be, shall provide a 60-day waiting period between the notice 
of a violation of the Act by a publicly owned treatment works and the 
issuance of a civil penalty. If within such 60-day period the publicly 
owned treatment works submits a viable plan for correcting the non-
compliance that is the subject of the notice and thereafter diligently 
implements such plan, the Administrator shall not assess a civil 
penalty for the notice of violation.

SEC. 4. PERMIT LENGTH.

    (a) In General.--Notwithstanding any other law, any permit issued 
to the owner or operator of a publicly owned treatment works by the 
Administrator of the Environmental Protection Agency or a State, as the 
case may be, to discharge a pollutant under the Federal Water Pollution 
Control Act shall have a 15-year term.
    (b) Conforming Amendment.--Section 402(b)(1)(B) of the Federal 
Water Pollution Control Act is amended by striking ``five years'' and 
inserting ``5 years, or, in the case of a publicly owned treatment 
works, 15 years''.

SEC. 5. ATTORNEY'S FEES.

    Section 505(d) of the Federal Water Pollution Control Act (33 
U.S.C. 1365(d)) is amended by inserting after the first sentence the 
following: ``With respect to an action involving a publicly owned 
treatment works, the court, in determining whether the costs of 
litigation (including attorney and expert witness fees) are reasonable, 
shall consider the prevailing rate of such fees in the community where 
the publicly owned treatment works is located.''.

SEC. 6. COST BENEFIT ANALYSIS.

    Notwithstanding any other law, any new or increased treatment 
requirement associated with a permit issued to the owner or operator of 
a publicly owned treatment works by the Administrator of the 
Environmental Protection Agency or a State, as the case may be, to 
discharge a pollutant under the Federal Water Pollution Control Act 
shall be subject to a cost-benefit analysis performed by the 
Administrator or the State to ensure that the costs imposed on such 
owner or operator to comply with such new or increased requirement are 
outweighed by the benefit to the public of the new or increased 
requirement.
                                 <all>
```