I

106TH CONGRESS

2D SESSION H. R. 5606

To amend the Federal Water Pollution Control Act to improve the

enforcement and compliance programs.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 30, 2000

Mr. PALLONE 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

improve the enforcement and compliance programs.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Clean Water Enforce5 ment and Compliance Improvement Act of 2000’’.

6 SEC. 2. FINDINGS.

7 (a) IN GENERAL.—Congress finds that—

8 (1) a significant number of persons who have

9 been issued permits under section 402 of the Fed-
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1 eral Water Pollution Control Act are in violation of

2 such permits;

3 (2) current enforcement programs of the Ad4 ministrator of the Environmental Protection Agency

5 and the States fail to address violations of such per6 mits in a timely and effective manner;

7 (3) full, accurate and prompt reporting of pos8 sible violations of the Federal Water Pollution Con9 trol Act is necessary for implementation and well

10 served by assuring that good faith reporters of pos11 sible violations are protected against adverse per12 sonnel actions;

13 (4) often violations of such permits continue for

14 a considerable period of time, yielding significant

15 economic benefits for the violator and thus penal16 izing similar facilities which act lawfully;

17 (5) penalties assessed and collected by the Ad18 ministrator from violators of such permits are often

19 less than the economic benefit gained by the violator;

20 (6) swift and timely enforcement by the Admin21 istrator and the States of violations of such permits

22 is necessary to increase levels of compliance with

23 such permits; and

24 (7) actions of private citizens have been effec25 tive in enforcing such permits and directing funds to
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1 environmental mitigation projects with over $12.8

2 million in penalties and interest having been recov3 ered and deposited with the Treasury of the United

4 States over the fiscal years 1990 through 1999.

5 (b) FINDING WITH RESPECT TO HARM CAUSED BY

6 VIOLATIONS.—Section 101 of the Federal Water Pollution

7 Control Act (33 U.S.C. 1251) is amended by adding at

8 the end the following:

9 ‘‘(h) FINDING WITH RESPECT TO HARM CAUSED BY

10 VIOLATIONS.—Congress finds that a discharge which re11 sults in a violation of this Act or a regulation, standard,

12 limitation, requirement, or order issued pursuant to this

13 Act interferes with the restoration and maintenance of the

14 chemical, physical, and biological integrity of any waters

15 into which the discharge flows (either directly or through

16 a publicly owned treatment works), including any waters

17 into which the receiving waters flow, and, therefore, harms

18 those who use or enjoy such waters and those who use

19 or enjoy nearby lands or aquatic resources associated with

20 those waters.

21 ‘‘(i) FINDING WITH RESPECT TO CITIZEN SUITS.—

22 Congress finds that citizen suits are a valuable means of

23 enforcement of this Act and urges the Administrator to

24 take actions to encourage such suits, including providing

25 information concerning violators to citizen groups to assist
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1 them in bringing suits, providing expert witnesses and

2 other evidence with respect to such suits, and filing amicus

3 curiae briefs on important issues related to such suits.’’.

4 SEC. 3. VIOLATIONS OF REQUIREMENTS OF LOCAL CON5 TROL AUTHORITIES.

6 Section 307(d) of Federal Water Pollution Control

7 Act (33 U.S.C. 1317(d)) is amended to read as follows:

8 ‘‘(d) VIOLATIONS.—After the date on which (1) any

9 effluent standard or prohibition or pretreatment standard

10 or requirement takes effect under this section, or (2) any

11 requirement imposed in a pretreatment program under

12 section 402(a)(3) or 402(b)(8) of this Act takes effect, it

13 shall be unlawful for any owner or operator of any source

14 to operate such source in violation of the effluent stand15 ard, prohibition, pretreatment standard, or requirement.’’.

16 SEC. 4. INSPECTIONS, MONITORING, AND PROVIDING IN17 FORMATION.

18 (a) APPLICABILITY OF REQUIREMENTS.—Section

19 308(a)(1)(A) of the Federal Water Pollution Control Act

20 (33 U.S.C. 1318(a)(1)(A)) is amended by striking ‘‘the

21 owner or operator of any point source’’ and inserting ‘‘a

22 person subject to any requirement of this Act’’.

23 (b) PUBLIC ACCESS TO INFORMATION.—The first

24 sentence of section 308(b) of such Act is amended—
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1 (1) by inserting ‘‘(including information con2 tained in the permit compliance system of the Envi3 ronmental Protection Agency)’’ after ‘‘obtained

4 under this section’’;

5 (2) by inserting ‘‘made’’ after ‘‘shall be’’; and

6 (3) by inserting ‘‘by computer telecommuni7 cation and other means for a period of at least 10

8 years’’ after ‘‘public’’ the first place it appears.

9 (c) PUBLIC INFORMATION.—Section 308 of such Act

10 is further amended by adding at the end the following:

11 ‘‘(e) PUBLIC INFORMATION.—

12 ‘‘(1) POSTING OF NOTICE OF POLLUTED WA13 TERS.—At each major point of public access (includ14 ing, at a minimum, beaches, parks, recreation areas,

15 marinas, and boat launching areas) to a body of

16 navigable water that does not meet an applicable

17 water quality standard or that is subject to a fishing

18 or shell fishing ban, advisory, or consumption re19 striction (issued by a Federal, State, or local author20 ity) due to fish or shellfish contamination, the State

21 within which boundaries all or any part of such body

22 of water lies shall, either directly or through local

23 authorities, post and maintain a clearly visible sign

24 which—
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1 ‘‘(A) indicates the water quality standard

2 that is being violated or the nature and extent

3 of the restriction on fish or shellfish consump4 tion, as the case may be;

5 ‘‘(B) includes (i) information on the envi6 ronmental and health effects associated with

7 the failure to meet such standard or with the

8 consumption of fish or shellfish subject to the

9 restriction, and (ii) a phone number for obtain10 ing additional information relating to the viola11 tion and restriction; and

12 ‘‘(C) will be maintained until the body of

13 water is in compliance with the water quality

14 standard or until all fish and shellfish consump15 tion restrictions are terminated with respect to

16 the body of water, as the case may be.

17 ‘‘(2) NOTICE OF DISCHARGES TO NAVIGABLE

18 WATERS.—Except for permits issued to municipali19 ties for discharges composed entirely of stormwater

20 under section 402 of this Act, each permit issued

21 under section 402 by the Administrator or by a

22 State shall ensure compliance with the following re23 quirements:

24 ‘‘(A) Every permittee shall conspicuously

25 maintain at all public entrances to the facility
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1 a clearly visible sign which indicates that the

2 facility discharges pollutants into navigable wa3 ters and the location of such discharges; the

4 name, business address, and phone number of

5 the permittee; the permit number; and a loca6 tion at which a copy of the permit and public

7 information required by this paragraph is main8 tained and made available for inspection or a

9 phone number for obtaining such information.

10 ‘‘(B) Each permittee which is a publicly

11 owned treatment works shall include in each

12 quarterly mailing of a bill to each customer of

13 the treatment works information which indi14 cates that the treatment works discharges pol15 lutants into the navigable waters and the loca16 tion of each of such discharges; the name, busi17 ness address and phone number of the per18 mittee; the permit number; a location at which

19 a copy of the permit and public information re20 quired by this paragraph is maintained and

21 made available for inspection or a phone num22 ber for obtaining such information; and a list of

23 all violations of the requirements of the permit

24 by the treatment works over the preceding 12-

25 month period.
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1 ‘‘(3) REGULATIONS.—

2 ‘‘(A) ISSUANCE.—The Administrator—

3 ‘‘(i) not later than 6 months after the

4 date of the enactment of this subsection,

5 shall propose regulations to carry out this

6 subsection; and

7 ‘‘(ii) not later than 18 months after

8 such date of enactment, shall issue such

9 regulations.

10 ‘‘(B) CONTENT.—The regulations issued to

11 carry out this subsection shall establish—

12 ‘‘(i) uniform requirements and proce13 dures for identifying and posting bodies of

14 water under paragraph (1);

15 ‘‘(ii) minimum information to be in16 cluded in signs posted and notices issued

17 pursuant to this subsection;

18 ‘‘(iii) uniform requirements and proce19 dures for fish and shellfish sampling and

20 analysis; and

21 ‘‘(iv) uniform requirements for deter22 mining the nature and extent of fish and

23 shellfish bans, advisories, and consumption

24 restrictions which—
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1 ‘‘(I) address cancer and non2 cancer human health risks;

3 ‘‘(II) take into account the ef4 fects of all fish and shellfish contami5 nants, including the cumulative and

6 synergistic effects;

7 ‘‘(III) assure the protection of

8 subpopulations who consume higher

9 than average amounts of fish and

10 shellfish or are particularly susceptible

11 to the effects of such contamination;

12 ‘‘(IV) address race, gender, eth13 nic composition, or social and eco14 nomic factors, based on the latest

15 available studies of national or re16 gional consumption by and impacts on

17 such subpopulations unless more reli18 able site-specific data is available;

19 ‘‘(V) are based on a margin of

20 safety that takes into account the un21 certainties in human health impacts

22 from such contamination; and

23 ‘‘(VI) evaluate assessments of

24 health risks of contaminated fish and

25 shellfish that are used in pollution
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1 control programs developed by the Ad2 ministrator under this Act.’’.

3 (d) STATE REPORTS.—Section 305(b)(1) of such Act

4 (33 U.S.C. 1315(b)(1)) is amended—

5 (1) by striking ‘‘and’’ at the end of subpara6 graph (D);

7 (2) by striking the period at the end of sub8 paragraph (E) and inserting ‘‘; and’’; and

9 (3) by adding at the end the following:

10 ‘‘(F) a list identifying bodies of water for

11 which signs were posted under section

12 308(e)(1) in the preceding year and the reason

13 or reasons for such posting.’’.

14 SEC. 5. CIVIL PENALTIES.

15 (a) ENFORCEMENT OF LOCAL PRETREATMENT RE16 QUIREMENTS.—

17 (1) COMPLIANCE ORDERS.—

18 (A) INITIAL ACTION.—Section 309(a)(1) of

19 the Federal Water Pollution Control Act (33

20 U.S.C. 1319(a)(1)) is amended by inserting

21 after ‘‘404 of this Act,’’ the following: ‘‘or is in

22 violation of any requirement imposed in a

23 pretreatment program approved under section

24 402(a)(3) or 402(b)(8) of this Act,’’.
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1 (B) ISSUANCE OF ORDERS.—Section

2 309(a)(3) of such Act is amended by inserting

3 after ‘‘404 of this Act by a State,’’ the fol4 lowing: ‘‘or is in violation of any requirement

5 imposed in a pretreatment program approved

6 under section 402(a)(3) or 402(b)(8) of this

7 Act,’’.

8 (2) CRIMINAL PENALTIES.—Section

9 309(c)(3)(A) of such Act is amended by inserting

10 after ‘‘Army or by a State,’’ the following: ‘‘or know11 ingly violates any requirement imposed in a

12 pretreatment program approved under section

13 402(a)(3) or 402(b)(8) of this Act,’’.

14 (3) ADMINISTRATIVE PENALTIES.—Section

15 309(g)(1)(A) of such Act is amended by inserting

16 after ‘‘404 by a State,’’ the following: ‘‘or has vio17 lated any requirement imposed in a pretreatment

18 program approved under section 402(a)(3) or

19 402(b)(8) of this Act or an order issued by the Ad20 ministrator under subsection (a) of this section,’’.

21 (b) TREATMENT OF SINGLE OPERATIONAL UP22 SETS.—

23 (1) CRIMINAL PENALTIES.—Section 309(c) of

24 such Act is amended by striking paragraph (5) and
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1 redesignating paragraphs (6) and (7) as paragraphs

2 (5) and (6), respectively.

3 (2) CIVIL PENALTIES.—Section 309(d) of such

4 Act is amended by striking the last sentence.

5 (3) ADMINISTRATIVE PENALTIES.—Section

6 309(g)(3) of such Act is amended by striking the

7 last sentence.

8 (c) USE OF CIVIL PENALTIES FOR MITIGATION

9 PROJECTS.—

10 (1) IN GENERAL.—Section 309(d) of such Act

11 is amended by inserting after the second sentence

12 the following: ‘‘The court, in its discretion, may

13 order that all or a portion of a civil penalty be used

14 for carrying out beneficial projects to enhance public

15 health or the environment by restoring or otherwise

16 improving, in a manner consistent with this Act, the

17 water quality, wildlife, or habitat of specific waters

18 or watershed of the State in which the violation oc19 curred.’’.

20 (2) CONFORMING AMENDMENT.—Section

21 505(a) of such Act (33 U.S.C. 1365(a)) is amended

22 by inserting before the period at the end of the last

23 sentence the following: ‘‘, including ordering, in ac24 cordance with section 309(d), the use of all or a por25 tion of a civil penalty for carrying out beneficial
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1 projects to enhance public health or the environment

2 by restoring or otherwise improving, in a manner

3 consistent with this Act, the water quality, wildlife,

4 or habitat of specific waters or watershed of the

5 State in which the violation occurred’’.

6 (d) DETERMINATION OF AMOUNT OF PENALTIES.—

7 (1) CIVIL PENALTIES.—The second sentence of

8 section 309(d) of such Act (33 U.S.C. 1319(d)) is

9 amended by inserting ‘‘the amount of any penalty

10 previously imposed on the violator by a court or ad11 ministrative agency for the same violation or viola12 tions,’’ after ‘‘economic impact of the penalty on the

13 violator,’’.

14 (2) ADMINISTRATIVE PENALTIES.—Section

15 309(g)(3) of such Act is amended—

16 (A) by striking ‘‘or savings’’; or

17 (B) by inserting ‘‘the amount of any pen18 alty previously imposed on the violator by a

19 court or administrative agency for the same vio20 lation or violations,’’ after ‘‘resulting from the

21 violation,’’.

22 (e) LIMITATION ON DEFENSES.—Section 309(g)(1)

23 of such Act is amended by adding at the end the following:

24 ‘‘In a proceeding to assess or review a penalty under this

25 subsection, the adequacy of consultation between the Ad-
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1 ministrator or the Secretary, as the case may be, and the

2 State shall not be a defense to assessment or enforcement

3 of such penalty.’’.

4 (f) AMOUNTS OF ADMINISTRATIVE CIVIL PEN5 ALTIES.—

6 (1) GENERAL RULE.—Section 309(g)(2) of

7 such Act is amended to read as follows:

8 ‘‘(2) AMOUNT OF PENALTIES; NOTICE; HEAR9 ING.—

10 ‘‘(A) MAXIMUM AMOUNT OF PENALTIES.—

11 The amount of a civil penalty under paragraph

12 (1) may not exceed $25,000 per violation per

13 day for each day during which the violation

14 continues.

15 ‘‘(B) WRITTEN NOTICE.—Before issuing

16 an order assessing a civil penalty under this

17 subsection, the Administrator or the Secretary,

18 as the case may be, shall give to the person to

19 be assessed the penalty written notice of the

20 Administrator’s or Secretary’s proposal to issue

21 the order and the opportunity to request, within

22 30 days of the date the notice is received by

23 such person, a hearing on the proposed order.

24 ‘‘(C) HEARINGS NOT ON THE RECORD.—If

25 the proposed penalty does not exceed $25,000,
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1 the hearing shall not be subject to section 554

2 or 556 of title 5, United States Code, but shall

3 provide a reasonable opportunity to be heard

4 and to present evidence.

5 ‘‘(D) HEARINGS ON THE RECORD.—If the

6 proposed penalty exceeds $25,000, the hearing

7 shall be on the record in accordance with sec8 tion 554 of title 5, United States Code. The

9 Administrator and the Secretary may issue

10 rules for discovery procedures for hearings

11 under this subparagraph.’’.

12 (2) CONFORMING AMENDMENTS.—Section

13 309(g) of such Act is amended—

14 (A) in paragraph (1) by striking ‘‘class I

15 civil penalty or a class II’’;

16 (B) in the second sentence of paragraph

17 (4)(C) by striking ‘‘(2)(A) in the case of a class

18 I civil penalty and paragraph (2)(B) in the case

19 of a class II civil penalty’’ and inserting ‘‘(2)’’;

20 and

21 (C) in the first sentence of paragraph (8)

22 by striking ‘‘assessment—’’ and all that follows

23 through ‘‘by filing’’ and inserting ‘‘assessment

24 in the United States District Court for the Dis-
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1 trict of Columbia or in the district in which the

2 violation is alleged to have occurred by filing’’.

3 (g) STATE ENFORCEMENT ACTIONS AS BAR TO FED4 ERAL ENFORCEMENT ACTIONS.—Section 309(g)(6)(A) of

5 such Act is amended—

6 (1) by inserting ‘‘or’’ after the comma at the

7 end of clause (i);

8 (2) by striking clause (ii); and

9 (3) by redesignating clause (iii) as clause (ii)

10 and in such clause—

11 (A) by striking ‘‘, the Secretary, or the

12 State’’ and inserting ‘‘or the Secretary’’; and

13 (B) by striking ‘‘or such comparable State

14 law, as the case may be,’’.

15 (h) RECOVERY OF ECONOMIC BENEFIT.—Section

16 309 of such Act is amended by adding at the end the

17 following:

18 ‘‘(h) RECOVERY OF ECONOMIC BENEFIT.—

19 ‘‘(1) GENERAL RULE.—Notwithstanding any

20 other provision of this section, any civil penalty as21 sessed and collected under this section must be in an

22 amount which is not less than the amount of any

23 economic benefit resulting from the violation for

24 which the penalty is assessed.
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1 ‘‘(2) REGULATIONS.—Not later than 18 months

2 after the date of the enactment of this subsection,

3 the Administrator shall issue regulations establishing

4 a methodology for calculating the economic benefits

5 or savings resulting from violations of this Act.

6 Pending issuance of such regulations, this subsection

7 shall be in effect and economic benefits shall be cal8 culated for purposes of paragraph (1) on a case-by9 case basis.’’.

10 (i) LIMITATION ON COMPROMISES.—Section 309 of

11 such Act is further amended by adding at the end the fol12 lowing:

13 ‘‘(i) LIMITATION ON COMPROMISES OF CIVIL PEN14 ALTIES.—Notwithstanding any other provision of this sec15 tion, the amount of a civil penalty assessed under this sec16 tion may not be compromised below the amount deter17 mined by adding—

18 ‘‘(1) the minimum amount required for recovery

19 of economic benefit under subsection (h), to

20 ‘‘(2) 50 percent of the difference between the

21 amount of the civil penalty assessed and such min22 imum amount.’’.

23 (j) MINIMUM AMOUNT FOR SERIOUS VIOLATIONS.—

24 Section 309 of such Act is further amended by adding at

25 the end the following:
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1 ‘‘(j) MINIMUM CIVIL PENALTIES FOR SERIOUS VIO2 LATIONS AND SIGNIFICANT NONCOMPLIERS.—

3 ‘‘(1) SERIOUS VIOLATIONS.—Notwithstanding

4 any other provision of this section (other than para5 graph (2)), the minimum civil penalty which shall be

6 assessed and collected under this section from a

7 person—

8 ‘‘(A) for a discharge from a point source of

9 a hazardous pollutant which exceeds or other10 wise violates any applicable effluent limitation

11 established by or under this Act by 20 percent

12 or more, or

13 ‘‘(B) for a discharge from a point source

14 of a pollutant (other than a hazardous pollut15 ant) which exceeds or otherwise violates any ap16 plicable effluent limitation established by or

17 under this Act by 40 percent or more,

18 shall be $1,000 for the first such violation in a 180-

19 day period.

20 ‘‘(2) SIGNIFICANT NONCOMPLIERS.—Notwith21 standing any other provision of this section, the min22 imum civil penalty which shall be assessed and col23 lected under this section from a person—

24 ‘‘(A) for the second or more discharge in

25 a 180-day period from a point source of a haz-
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1 ardous pollutant which exceeds or otherwise vio2 lates any applicable effluent limitation estab3 lished by or under this Act by 20 percent or

4 more,

5 ‘‘(B) for the second or more discharge in

6 a 180-day period from a point source of a pol7 lutant (other than a hazardous pollutant) which

8 exceeds or otherwise violates any applicable ef9 fluent limitation established by or under this

10 Act by 40 percent or more,

11 ‘‘(C) for the fourth or more discharge in a

12 180-day period from a point source of any pol13 lutant which exceeds or otherwise violates the

14 same effluent limitation, or

15 ‘‘(D) for not filing in a 180-day period 2

16 or more reports in accordance with section

17 402(r)(1),

18 shall be $5,000 for each of such violations.

19 ‘‘(3) MANDATORY INSPECTIONS FOR SIGNIFI20 CANT NONCOMPLIERS.—The Administrator shall

21 identify any person described in paragraph (2) as a

22 significant noncomplier and shall conduct an inspec23 tion described in section 402(q) of this Act of the fa24 cility at which the violations were committed. Such

25 inspections shall be conducted at least once in the
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1 180-day period following the date of the most recent

2 violation which resulted in such person being identi3 fied as a significant noncomplier.

4 ‘‘(4) ANNUAL REPORTING.—The Administrator

5 shall transmit to Congress and to the Governors of

6 the States and shall publish in the Federal Register,

7 on an annual basis, a list of all persons identified as

8 significant noncompliers under paragraph (3) in the

9 preceding calendar year and the violations which re10 sulted in such classifications. The Administrator

11 shall make the list available to the public upon re12 quest.

13 ‘‘(5) HAZARDOUS POLLUTANT DEFINED.—For

14 purposes of this subsection, the term ‘hazardous pol15 lutant’ has the meaning the term ‘hazardous sub16 stance’ has under subsection (c)(6) of this section.’’.

17 (k) STATE PROGRAM.—Section 402(b)(7) of such Act

18 (33 U.S.C. 1342(b)(7)) is amended to read as follows:

19 ‘‘(7) To abate violations of the permit or the

20 permit program which shall include, beginning on

21 the last day of the 2-year period beginning on the

22 date of the enactment of the Clean Water Compli23 ance and Enforcement Improvement Act of 2000, a

24 penalty program comparable to the Federal penalty

25 program under section 309 of this Act and which
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1 shall include at a minimum criminal, civil, and civil

2 administrative penalties, and may include other ways

3 and means of enforcement, which the State dem4 onstrates to the satisfaction of the Administrator are

5 equally effective as the Federal penalty program;’’.

6 (l) FEDERAL PROCUREMENT COMPLIANCE INCEN7 TIVE.—Section 508(a) of such Act (33 U.S.C. 1368(a))

8 is amended by inserting after the second comma ‘‘or who

9 is identified under section 309(j)(3) of this Act,’’.

10 SEC. 6. NATIONAL POLLUTANT DISCHARGE ELIMINATION

11 PERMITS.

12 (a) WITHDRAWAL OF STATE PROGRAM APPROVAL.—

13 Section 402(b) of the Federal Water Pollution Control Act

14 (33 U.S.C. 1342(b)) is amended by striking ‘‘unless he

15 determines that adequate authority does not exist:’’ and

16 inserting the following: ‘‘only when he determines that

17 adequate authority exists and shall withdraw program ap18 proval whenever he determines that adequate authority no

19 longer exists:’’.

20 (b) JUDICIAL REVIEW OF RULINGS ON APPLICA21 TIONS FOR STATE PERMITS.—Section 402(b)(3) of such

22 Act is amended by inserting ‘‘and to ensure that any inter23 ested person who participated in the public comment proc24 ess and any other person who could obtain judicial review

25 of that action under any other applicable law has the right
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1 to judicial review of such ruling’’ before the semicolon at

2 the end.

3 (c) INSPECTIONS FOR MAJOR INDUSTRIAL AND MU4 NICIPAL DISCHARGERS.—Section 402(b) of such Act is

5 amended—

6 (1) by striking ‘‘and’’ at the end of paragraph

7 (8);

8 (2) by striking the period at the end of para9 graph (9) and inserting a semicolon; and

10 (3) by adding at the end the following:

11 ‘‘(10) To ensure that any permit for a dis12 charge from a major industrial or municipal facility,

13 as defined by the Administrator by regulation, in14 cludes conditions under which such facility will be

15 subject to at least annual inspections by the State

16 in accordance with subsection (q) of this section;’’.

17 (d) MONTHLY REPORTS FOR SIGNIFICANT INDUS18 TRIAL USERS OF POTWS.—Section 402(b) of such Act

19 is further amended by adding at the end the following:

20 ‘‘(11) To ensure that any permit for a dis21 charge from a publicly owned treatment works in the

22 State includes conditions under which the treatment

23 works will require any significant industrial user of

24 the treatment works, as defined by the Adminis25 trator by regulation, to prepare and submit to the
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1 Administrator, the State, and the treatment works a

2 monthly discharge monitoring report as a condition

3 to using the treatment works;’’.

4 (e) PERMITS REQUIRED FOR INTRODUCTION OF

5 POLLUTANTS INTO POTWS.—Section 402(b) of such Act

6 is further amended by adding at the end the following:

7 ‘‘(12) To ensure that, after the last day of the

8 2-year period beginning on the date of the enact9 ment of this paragraph, any significant industrial

10 user, or other source designated by the Adminis11 trator, introducing a pollutant into a publicly owned

12 treatment works has, and operates in accordance

13 with, a permit issued by the treatment works or the

14 State for introduction of such pollutant; and’’.

15 (f) GRANTING OF AUTHORITY TO POTWS FOR IN16 SPECTIONS AND PENALTIES.—Section 402(b) of such Act

17 is further amended by adding at the end the following:

18 ‘‘(13) To ensure that the State will grant to

19 publicly owned treatment works in the State, not

20 later than 3 years after the date of the enactment

21 of this paragraph, authority, power, and responsi22 bility to conduct inspections under subsection (q) of

23 this section and to assess and collect civil penalties

24 and civil administrative penalties under paragraph

25 (7) of this subsection.’’.
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1 (g) INSPECTION.—Section 402 of such Act is amend2 ed by adding at the end the following:

3 ‘‘(q) INSPECTION.—

4 ‘‘(1) GENERAL RULE.—Each permit for a dis5 charge into the navigable waters or introduction of

6 pollutants into a publicly owned treatment works

7 issued under this section shall include conditions

8 under which the effluent being discharged will be

9 subject to random unannounced inspections in ac10 cordance with this subsection by the Administrator

11 or the State, in the case of a State permit program

12 under this section.

13 ‘‘(2) MINIMUM STANDARDS.—Not later than 6

14 months after the date of enactment of this sub15 section, the Administrator shall establish minimum

16 standards for inspections under this subsection.

17 Such standards shall require, at a minimum, the fol18 lowing:

19 ‘‘(A) An annual representative sampling by

20 the Administrator or the State, in the case of

21 a State permit program under this section, of

22 the effluent being discharged; except that if the

23 discharge is not from a major industrial or mu24 nicipal facility such sampling shall be conducted

25 at least once every 3 years.
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1 ‘‘(B) An analysis of all samples collected

2 under subparagraph (A) by a Federal or State

3 owned and operated laboratory or a State ap4 proved laboratory, other than one that is being

5 used by the permittee or that is directly or indi6 rectly owned, operated, or managed by the

7 permittee.

8 ‘‘(C) An evaluation of the maintenance

9 record of any treatment equipment of the

10 permittee.

11 ‘‘(D) An evaluation of the sampling tech12 niques used by the permittee.

13 ‘‘(E) A random check of discharge moni14 toring reports of the permittee for each 12-

15 month period for the purpose of determining

16 whether or not such reports are consistent with

17 the applicable analyses conducted under sub18 paragraph (B).

19 ‘‘(F) An inspection of the sample storage

20 facilities and techniques of the permittee.’’.

21 (h) REPORTING.—Section 402 of such Act is further

22 amended by adding at the end the following:

23 ‘‘(r) REPORTING.—

24 ‘‘(1) GENERAL RULE.—Each person holding a

25 permit issued under this section which is determined
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1 by the Administrator to be a major industrial or mu2 nicipal discharger of pollutants into the navigable

3 waters shall prepare and submit to the Adminis4 trator a monthly discharge monitoring report. Any

5 other person holding a permit issued under this sec6 tion shall prepare and submit to the Administrator

7 quarterly discharge monitoring reports or more fre8 quent discharge monitoring reports if the Adminis9 trator requires. Such reports shall contain, at a min10 imum, such information as the Administrator shall

11 require by regulation.

12 ‘‘(2) REPORTING OF HAZARDOUS DIS13 CHARGES.—

14 ‘‘(A) GENERAL RULE.—If a discharge

15 from a point source for which a permit is issued

16 under this section exceeds an effluent limitation

17 contained in such permit which is based on an

18 acute water quality standard or any other dis19 charge which may cause an exceedance of an

20 acute water quality standard or otherwise is

21 likely to cause injury to persons or damage to

22 the environment or to pose a threat to human

23 health and the environment, the person holding

24 such permit shall notify the Administrator and

25 the affected States and municipalities, in writ-
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•HR 5606 IH

1 ing, of such discharge not later than 2 hours

2 after the later of the time at which such dis3 charge commenced or the time at which the

4 permittee knew or had reason to know of such

5 discharge.

6 ‘‘(B) SPECIAL RULE FOR HAZARDOUS POL7 LUTANTS.—If a discharge described in subpara8 graph (A) is of a hazardous pollutant (as de9 fined in section 309(j) of this Act), the person

10 holding such permit shall provide the Adminis11 trator with such additional information on the

12 discharge as may be required by the Adminis13 trator. Such additional information shall be

14 provided to the Administrator within 24 hours

15 after the later of the time at which such dis16 charge commenced or the time at which the

17 permittee became aware of such discharge.

18 Such additional information shall include, at a

19 minimum, an estimate of the danger posed by

20 the discharge to the environment, whether the

21 discharge is continuing, and the measures taken

22 or being taken (i) to remediate the problem

23 caused by the discharge and any damage to the

24 environment, and (ii) to avoid a repetition of

25 the discharge.
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1 ‘‘(3) SIGNATURE.—All reports filed under para2 graph (1) must be signed and dated by the highest

3 ranking official having day-to-day managerial and

4 operational responsibility for the facility at which the

5 discharge occurs or, in the absence of such person,

6 by another responsible high ranking official at such

7 facility. Such highest ranking official shall be re8 sponsible for the accuracy of all information con9 tained in such reports; except that such highest

10 ranking official may file with the Administrator

11 amendments to any such report if the report was

12 signed in the absence of the highest ranking official

13 by another high ranking official and if such amend14 ments are filed within 7 days of the return of the

15 highest ranking official.’’.

16 (i) LIMITATION ON ISSUANCE OF PERMITS TO SIG17 NIFICANT NONCOMPLIERS.—Section 402 of such Act is

18 further amended by adding at the end the following:

19 ‘‘(s) SIGNIFICANT NONCOMPLIERS.—No permit may

20 be issued under this section to any person (other than a

21 publicly owned treatment works) identified under section

22 309(j)(3) of this Act or to any other person owned or con23 trolled by the identified person, owning or controlling the

24 identified person, or under common control with the iden25 tified person, until the Administrator or the State or
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•HR 5606 IH

1 States in which the violation or violations occur deter2 mines that the condition or conditions giving rise to such

3 violation or violations have been corrected. No permit ap4 plication submitted after the date of the enactment of this

5 subsection may be approved unless the application in6 cludes a list of all violations of this Act by a person identi7 fied under section 309(j) of this Act during the 3-year pe8 riod preceding the date of submission of the application

9 and evidence indicating whether the underlying cause of

10 each such violation has been corrected.’’.

11 (j) APPLICABILITY.—The amendments made by this

12 section and section 8 shall apply to permits issued before,

13 on, or after the date of the enactment of this Act; except

14 that—

15 (1) with respect to permits issued before such

16 date of enactment to a major industrial or municipal

17 discharger, such amendments shall take effect on the

18 last day of the 1-year period beginning on such date

19 of enactment; and

20 (2) with respect to all other permits issued be21 fore such date of enactment, such amendments shall

22 take effect on the last day of the 18-month period

23 beginning on such date of enactment.
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1 SEC. 7. EXPIRED STATE PERMITS.

2 Section 402(d) of the Federal Water Pollution Con3 trol Act (33 U.S.C. 1342(d)) is amended by adding at the

4 end the following:

5 ‘‘(5) EXPIRED STATE PERMITS.—

6 ‘‘(A) AUTHORITY OF ADMINISTRATOR.—In

7 any case in which—

8 ‘‘(i) a permit issued by a State for a

9 discharge has expired,

10 ‘‘(ii) the permittee has submitted an

11 application to the State for a new permit

12 for the discharge, and

13 ‘‘(iii) the State has not acted on the

14 application before the last day of the 12-

15 month period beginning on the date the

16 permit expired,

17 the Administrator may issue a permit for the

18 discharge under subsection (a).

19 ‘‘(B) TREATMENT IF NO NEW PERMIT.—If

20 a permit issued by a State for a discharge of

21 one or more pollutants expires and the State or

22 the Administrator has not issued a new permit

23 for the discharge by the last day of the 12-

24 month period beginning on the date the permit

25 expired, the permittee shall be in violation of
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1 this Act if the permittee continues to discharge

2 such pollutants.

3 ‘‘(C) APPLICABILITY OF NEW REGULA4 TIONS.—If a State or the Administrator allows

5 a discharge to continue after the date of expira6 tion of a permit issued by the State or Adminis7 trator and before issuance of a new permit for

8 the discharge, regulations issued after such ex9 piration date shall apply to the discharge under

10 the expired permit.’’.

11 SEC. 8. POLLUTION PREVENTION PLANS.

12 Section 402 of the Federal Water Pollution Control

13 Act (42 U.S.C. 1342) is further amended by adding at

14 the end the following:

15 ‘‘(k) POLLUTION PREVENTION PLANS.—

16 ‘‘(1) IN GENERAL.—Each applicant for a per17 mit for a discharge of one or more pollutants shall

18 submit to the Administrator, with the application for

19 the permit, a pollution prevention plan that details

20 the applicant’s plans for reducing the discharge of

21 such pollutants at a measurable rate.

22 ‘‘(2) FORM AND CONTENT.—The plan shall be

23 in such form and contain such information as the

24 Administrator may require by regulation.
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1 ‘‘(3) DEADLINE FOR ISSUANCE OF REGULA2 TIONS.—The Administrator shall issue regulations to

3 carry out this subsection not later than the last day

4 of the 18-month period beginning on the date of en5 actment of this subsection.’’.

6 SEC. 9. COMPLIANCE SCHEDULE.

7 Section 302(b)(2)(B) of the Federal Water Pollution

8 Control Act (33 U.S.C. 1312(b)(2)(B)) is amended by

9 adding at the end the following: ‘‘The Administrator may

10 only issue a permit pursuant to this subparagraph for a

11 period exceeding 2 years if the Administrator makes the

12 findings described in clauses (i) and (ii) of this subpara13 graph on the basis of a public hearing.’’.

14 SEC. 10. EMERGENCY POWERS.

15 Section 504 of the Federal Water Pollution Control

16 Act (33 U.S.C. 1364) is amended to read as follows:

17 ‘‘SEC. 504. COMMUNITY PROTECTION.

18 ‘‘(a) ISSUANCE OF ORDERS; COURT ACTION.—Not19 withstanding any other provision of this Act, whenever the

20 Administrator finds that, because of an actual or threat21 ened direct or indirect discharge of a pollutant, there may

22 be an imminent and substantial endangerment to the pub23 lic health or welfare (including the livelihood of persons)

24 or the environment (including wildlife), the Administrator

25 may issue such orders or take such action as may be nec-
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•HR 5606 IH

1 essary to protect public health or welfare or the environ2 ment and commence a suit (or cause it to be commenced)

3 in the United States district court for the district where

4 the discharge or threat occurs. Such court may grant such

5 relief to abate the threat and to protect against the

6 endangerment as the public interest and the equities re7 quire, enforce, and adjudge penalties for disobedience to

8 orders of the Administrator issued under this section, and

9 grant other relief according to the public interest and the

10 equities of the case.

11 ‘‘(b) ENFORCEMENT OF ORDERS.—Any person who,

12 without sufficient cause, violates or fails to comply with

13 an order of the Administrator issued under this section,

14 shall be liable for civil penalties to the United States in

15 an amount not to exceed $25,000 per day for each day

16 on which such violation or failure occurs or continues.’’.

17 SEC. 11. CITIZEN SUITS.

18 (a) SUITS FOR PAST VIOLATIONS.—Section 505 of

19 the Federal Water Pollution Control Act (33 U.S.C. 1365)

20 is amended—

21 (1) in subsection (a)(1) by inserting ‘‘to have

22 violated (if there is evidence that the alleged viola23 tions has been repeated) or’’ after ‘‘who is alleged’’;

24 and
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•HR 5606 IH

1 (2) in subsection (f)(6) by inserting ‘‘has been

2 or’’ after ‘‘which’’.

3 (b) TIME LIMIT.—Section 505(b)(1)(A) of such Act

4 is amended by striking ‘‘sixty days’’ and inserting ‘‘30

5 days’’.

6 (c) EFFECT OF JUDGMENTS ON CITIZEN SUITS.—

7 Section 505(b) of such Act is further amended—

8 (1) in paragraph (1)(B) by striking ‘‘right.’’

9 and inserting ‘‘right and may obtain costs of litiga10 tion under subsection (d), or’’; and

11 (2) by adding at the end the following: ‘‘The

12 notice under paragraph (1)(A) need set forth only

13 violations which have been specifically identified in

14 the discharge monitoring reports of the alleged viola15 tor. An action under subsection (a)(1) may be

16 brought at any time. No judicial action by the Ad17 ministrator or a State shall bar an action for the

18 same violation under subsection (a)(1) unless the ac19 tion is by the Administrator and meets the require20 ments of this paragraph. No administrative action

21 by the Administrator shall bar a pending action

22 commenced after February 4, 1987, for the same

23 violation under subsection (a)(1) unless the action

24 by the Administrator meets the requirements of sec25 tion 309(g)(6) of this Act.’’.
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1 (d) CONSENT JUDGMENTS.—Section 505(c)(3) of

2 such Act is amended by adding at the end the following:

3 ‘‘Consent judgments entered under this section may pro4 vide that the civil penalties included in the consent judg5 ment be used for carrying out mitigation projects in ac6 cordance with section 309(d).’’.

7 (e) LITIGATION COSTS.—Section 505(d) of such Act

8 is amended by striking ‘‘(d)’’ and the first sentence and

9 inserting the following:

10 ‘‘(d) ‘‘COSTS OF LITIGATION; BOND.—The court, in

11 issuing any final order in any action brought pursuant to

12 this section, may award costs of litigation (including rea13 sonable attorney and expert witness fees) and up to 5 per14 cent of any civil penalties obtained by settlement or court

15 order to any prevailing or substantially prevailing party

16 that initiated the litigation.’’.

17 (f) PRETREATMENT REQUIREMENTS.—Section

18 505(f)(4) of such Act is amended by striking ‘‘or

19 pretreatment standards’’ and inserting ‘‘or pretreatment

20 standard or requirement described in section 307(d)’’.

21 (g) EFFLUENT STANDARD DEFINITION.—Section

22 505(f)(6) of such Act is amended by inserting ‘‘narrative

23 or mathematical’’ before ‘‘condition’’.

24 (h) CITIZEN DEFINED.—Section 505(g) of such Act

25 is amended to read as follows:
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•HR 5606 IH

1 ‘‘(g) CITIZEN DEFINED.—For purposes of this sec2 tion, the term ‘citizen’ means a person or persons having

3 an interest (including a recreational, aesthetic, environ4 mental, health, or economic interest) which is, has been,

5 or may be adversely affected and includes a person who

6 uses or enjoys the waters into which the discharge flows

7 (either directly or through a publicly owned treatment

8 works), who uses or enjoys aquatic resources or nearby

9 lands associated with the waters, or who would use or

10 enjoy the waters, aquatic resources, or nearby lands if they

11 were less polluted.’’.

12 (i) OFFERS OF JUDGMENT.—Section 505 of such Act

13 is further amended by adding at the end the following:

14 ‘‘(i) APPLICABILITY OF OFFERS OF JUDGMENT.—Of15 fers of judgment pursuant to Rule 68 of the Federal Rules

16 of Civil Procedure shall not be applicable to actions

17 brought under subsection (a)(1) of this section.’’.

18 SEC. 12. EMPLOYEE PROTECTION.

19 Section 507 of the Federal Water Pollution Control

20 Act (33 U.S.C. 1367) is amended—

21 (1) in subsection (e) by inserting ‘‘CONTINUING

22 EVALUATIONS’’ after ‘‘(e)’’;

23 (2) by redesignating subsection (e) as sub24 section (f); and
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•HR 5606 IH

1 (3) by striking subsections (a), (b), (c), and (d)

2 and inserting the following:

3 ‘‘(a) IN GENERAL.—No employer or other person

4 may harass, prosecute, hold liable, or discriminate against

5 any employee or other person because the person—

6 ‘‘(1) is assisting or demonstrating an intent to

7 assist in achieving compliance with any provision of

8 this Act (including a rule or regulation issued to

9 carry out this Act);

10 ‘‘(2) is refusing to violate or assist in the viola11 tion of any provision of this Act (including a rule or

12 regulation issued to carry out this Act);

13 ‘‘(3) has commenced, caused to be commenced,

14 or is about to commence a proceeding, has testified

15 or is about to testify at a proceeding, or has assisted

16 or participated or is about to assist or participate in

17 any manner in such a proceeding or in any other ac18 tion to carry out the purposes of this Act.

19 ‘‘(b) FILING COMPLAINTS AND PROCEDURES.—

20 ‘‘(1) FILING DEADLINE.—An employee alleging

21 a violation of subsection (a), or another person at

22 the employee’s request, may file a complaint with

23 the Secretary of Labor not later than 365 days after

24 the alleged violation occurred.

25 ‘‘(2) PROCEDURES.—
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•HR 5606 IH

1 ‘‘(A) INVESTIGATION; PRELIMINARY OR2 DERS.—Not later than 60 days after receiving

3 a complaint, the Secretary shall conduct an in4 vestigation, decide whether it is reasonable to

5 believe the complaint has merit, and notify the

6 complainant and the person alleged to have

7 committed the violation of the findings. If the

8 Secretary decides it is reasonable to believe a

9 violation occurred, the Secretary shall include

10 with the decision findings and a preliminary

11 order for the relief provided under paragraph

12 (3).

13 ‘‘(B) OBJECTIONS TO PRELIMINARY

14 ORDER.—Not later than 30 days after the no15 tice under subparagraph (A) of this paragraph,

16 the complainant and the person alleged to have

17 committed the violation may file objections to

18 the findings or preliminary order, or both, and

19 request a hearing on the record. The filing of

20 objections does not stay a reinstatement or21 dered in the preliminary order. If a hearing is

22 not requested within the 30 days, the prelimi23 nary order is final and not subject to judicial

24 review.
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1 ‘‘(C) HEARING; FINAL ORDER; SETTLE2 MENT AGREEMENT.—A hearing shall be con3 ducted expeditiously. Not later than 120 days

4 after the end of the hearing, the Secretary shall

5 issue a final order. Before the final order is

6 issued, the proceeding may be ended by a settle7 ment agreement made by the Secretary, the

8 complainant, and the person alleged to have

9 committed the violation.

10 ‘‘(3) ORDER.—

11 ‘‘(A) PENALTIES.—If the Secretary de12 cides, on the basis of a complaint, a person vio13 lated subsection (a), the Secretary shall order

14 the person to—

15 ‘‘(i) take affirmative action to abate

16 the violation;

17 ‘‘(ii) reinstate the complainant to the

18 former position with the same pay and

19 terms and privileges of employment; and

20 ‘‘(iii) pay compensatory damages, in21 cluding back pay.

22 ‘‘(B) COSTS.—If the Secretary issues an

23 order under subparagraph (A) and the com24 plainant requests, the Secretary may assess

25 against the person against whom the order is
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1 issued the costs (including attorney’s fees) rea2 sonably incurred by the complainant in bringing

3 the complaint. The Secretary shall determine

4 the costs that reasonably were incurred.

5 ‘‘(4) JUDICIAL REVIEW AND VENUE.—A person

6 adversely affected by an order issued after a hearing

7 under this subsection may file a petition for review,

8 not later than 60 days after the order is issued, in

9 the court of appeals of the United States for the cir10 cuit in which the violation occurred or the person re11 sided on the date of the violation. The review shall

12 be heard and decided expeditiously. An order of the

13 Secretary subject to review under this paragraph is

14 not subject to judicial review in a criminal or other

15 civil proceeding.

16 ‘‘(5) CIVIL ACTIONS TO ENFORCE.—If a person

17 fails to comply with an order issued under this sub18 section, the Secretary shall bring a civil action to en19 force the order in the district court of the United

20 States for the judicial district in which the violation

21 occurred.

22 ‘‘(c) BURDENS OF PROOF.—The legal burdens of

23 proof with respect to a violation of subsection (a) shall

24 be governed by the applicable provisions of sections 1214

25 and 1221 of title 5, United States Code.
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1 ‘‘(d) SUBPOENA AUTHORITY.—With respect to an al2 leged violation of subsection (a), the Secretary of Labor

3 may issue a subpoena for the attendance and testimony

4 of any person and the production of documentary or other

5 evidence from any person if the testimony or production

6 requested is not unduly burdensome and appears reason7 ably calculated to lead to the discovery of admissible evi8 dence.

9 ‘‘(e) POSTING REQUIREMENT.—The provisions of

10 this section shall be prominently posted in any place of

11 employment to which this section applies.’’.

12 SEC. 13. ISSUANCE OF SUBPOENAS.

13 Section 509(a)(1) of the Federal Water Pollution

14 Control Act (33 U.S.C. 1369(a)(1)) is amended by strik15 ing ‘‘obtaining information under section 305 of this Act,

16 or carrying out section 507(e) of this Act,’’ and inserting

17 ‘‘carrying out this Act,’’.

18 SEC. 14. JUDICIAL REVIEW OF EPA ACTIONS.

19 Section 509(b)(1) of the Federal Water Pollution

20 Control Act (33 U.S.C. 1369(b)(1)) is amended—

21 (1) by inserting after the comma at the end of

22 clause (D) ‘‘including a decision to deny a petition

23 by interested person to veto an individual permit

24 issued by a State,’’;
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1 (2) by inserting after the comma at the end of

2 clause (E) ‘‘including a decision not to include any

3 pollutant in such effluent limitation or other limita4 tion if the Administrator has or is made aware of in5 formation indicating that such pollutant is present

6 in any discharge subject to such limitation,’’; and

7 (3) by striking ‘‘and (G)’’ and inserting the fol8 lowing: ‘‘(G) in issuing or approving any water qual9 ity standard under section 303(c) or 303(d), (H) in

10 issuing any water quality criterion under section

11 304(a), including a decision not to address any ef12 fect of the pollutant subject to such criterion if the

13 Administrator has or is made aware of information

14 indicating that such effect may occur, and (J)’’.

15 SEC. 15. NATIONAL CLEAN WATER TRUST FUND.

16 (a) IN GENERAL.—Title V of the Federal Water Pol17 lution Control Act (33 U.S.C. 1361–1377) is amended by

18 redesignating section 519 as section 520 and by inserting

19 after section 518 the following new section:

20 ‘‘SEC. 519. NATIONAL CLEAN WATER TRUST FUND.

21 ‘‘(a) CREATION OF TRUST FUND.—There is estab22 lished in the Treasury of the United States a trust fund

23 to be known as the ‘Clean Water Trust Fund’.

24 ‘‘(b) TRANSFERS TO TRUST FUND.—There are here25 by appropriated to the Clean Water Trust Fund amounts
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1 equivalent to the penalties collected under section 309 of

2 this Act and the penalties collected under section 505(a)

3 of this Act (excluding any amounts ordered to be used to

4 carry out mitigation projects under section 309 or 505(a),

5 as the case may be).

6 ‘‘(c) ADMINISTRATION OF TRUST FUND.—The Ad7 ministrator shall administer the Clean Water Trust Fund.

8 The Administrator may use moneys in the Fund to carry

9 out inspections and enforcement activities pursuant to this

10 Act. In addition, the Administrator may make such

11 amounts of money in the Fund as the Administrator de12 termines appropriate available to carry out title VI of this

13 Act.’’.

14 (b) CONFORMING AMENDMENT TO STATE REVOLV15 ING FUND PROGRAM.—Section 607 of such Act (33

16 U.S.C. 1387) is amended—

17 (1) by inserting ‘‘(a) IN GENERAL.—’’ before

18 ‘‘There is’’; and

19 (2) by adding at the end the following:

20 ‘‘(b) TREATMENT OF TRANSFERS FROM CLEAN

21 WATER TRUST FUND.—For purposes of this title,

22 amounts made available from the Clean Water Trust

23 Fund under section 519 of this Act to carry out this title

24 shall be treated as funds authorized to be appropriated
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1 to carry out this title and as funds made available under

2 this title.’’.

3 SEC. 16. FEDERAL FACILITIES CLEAN WATER COMPLIANCE.

4 (a) APPLICATION OF CERTAIN PROVISIONS TO FED5 ERAL FACILITIES.—Section 313(a) of the Federal Water

6 Pollution Control Act (33 U.S.C. 1323(a)) is amended to

7 read as follows:

8 ‘‘(a) COMPLIANCE.—

9 ‘‘(1) DEFINITION OF REASONABLE SERVICE

10 CHARGE.—In this subsection, the term ‘reasonable

11 service charge’ includes—

12 ‘‘(A) a fee or charge assessed in connection

13 with the processing, issuance, renewal, or

14 amendment of a permit, review of a plan, study,

15 or other document, or inspection or monitoring

16 of a facility; and

17 ‘‘(B) any other nondiscriminatory charge

18 that is assessed in connection with a Federal,

19 State, interstate, or local water pollution regu20 latory program.

21 ‘‘(2) REQUIREMENT.—Each department, agen22 cy, and instrumentality of the executive, legislative,

23 or judicial branch of the Federal Government that

24 has jurisdiction over any property or facility, or is

25 engaged in any activity that results, or that may re-
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1 sult, in the discharge or runoff of a pollutant shall

2 be subject to, and shall comply with, all Federal,

3 State, interstate, and local substantive and proce4 dural requirements (including any requirement for a

5 permit or reporting, any provision for injunctive re6 lief and such sanctions as are imposed by a Federal

7 or State court to enforce the relief, and any require8 ment for the payment of a reasonable service

9 charge) concerning the control and abatement of

10 water pollution in the same manner, and to the same

11 extent, as any other person is subject to the require12 ments.

13 ‘‘(3) WAIVER OF SOVEREIGN IMMUNITY.—The

14 United States expressly waives any immunity other15 wise applicable to the United States with respect to

16 any substantive or procedural requirement, adminis17 trative authority, and process and sanction described

18 in paragraph (2), including immunity from process

19 in an administrative or court action seeking—

20 ‘‘(A) injunctive relief;

21 ‘‘(B) imposition of a sanction referred to

22 in this subsection;

23 ‘‘(C) enforcement of an administrative

24 order;
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1 ‘‘(D) imposition of an administrative or

2 civil penalty or fine; or

3 ‘‘(E) payment of a reasonable service

4 charge.

5 ‘‘(4) ADMINISTRATIVE ORDERS AND PEN6 ALTIES.—The substantive and procedural require7 ments described in paragraph (2) include all admin8 istrative orders and all civil and administrative pen9 alties or fines, regardless of whether the penalties or

10 fines are punitive or coercive in nature or are im11 posed for isolated, intermittent, or continuing viola12 tions.

13 ‘‘(5) INJUNCTIVE RELIEF.—The United States

14 (including any agent, employee, or officer of the

15 United States) shall not be immune or exempt from

16 any process or sanction of any State or Federal

17 court with respect to the enforcement of any injunc18 tive relief referred to in paragraphs (2) and (3).

19 ‘‘(6) CIVIL PENALTIES.—No agent, employee,

20 or officer of the United States shall be personally

21 liable for any civil penalty under any Federal, State,

22 interstate, or local water pollution regulatory pro23 gram with respect to any act or omission within the

24 scope of the official duties of the agent, employee, or

25 officer.
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1 ‘‘(7) CRIMINAL PENALTIES.—

2 ‘‘(A) AGENTS, EMPLOYEES, AND OFFI3 CERS.—An agent, employee, or officer of the

4 United States shall be subject to any criminal

5 sanction (including a fine or imprisonment)

6 under any Federal, State, interstate, or local

7 water pollution regulatory program.

8 ‘‘(B) DEPARTMENTS, AGENCIES, AND IN9 STRUMENTALITIES.—No department, agency,

10 or instrumentality of the executive, legislative,

11 or judicial branch of the Federal Government

12 shall be subject to a sanction referred to in sub13 paragraph (A).’’.

14 (b) FEDERAL FACILITY ENFORCEMENT.—Section

15 309 of the Federal Water Pollution Control Act (33

16 U.S.C. 1319) is further amended by adding at the end

17 the following:

18 ‘‘(k) FEDERAL FACILITY ENFORCEMENT.—

19 ‘‘(1) COMPLIANCE ORDERS.—

20 ‘‘(A) IN GENERAL.—Whenever on the basis

21 of any information available to him or her—

22 ‘‘(i) the Administrator determines

23 that any department, agency, or instru24 mentality of the United States has violated

25 or is in violation of section 301, 302, 306,
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1 307, 308, 311, 318, or 405 of this Act, or

2 has violated or is in violation of any permit

3 condition or limitation implementing any

4 such section in a permit issued under sec5 tion 402 of this Act by the Administrator

6 or by a State, or in a permit issued under

7 section 404 of this Act by a State, or any

8 requirement imposed in a pretreatment

9 program approved under section 402(a)(3)

10 or 402(b)(8) of this Act, or any require11 ment imposed under section 402(b)(9) of

12 this Act;

13 ‘‘(ii) the Secretary of the Army deter14 mines that any department, agency, or in15 strumentality of the United States has vio16 lated or is in violation of section 301 with

17 regard to discharges of dredged or fill ma18 terial or any condition or limitation in a

19 permit issued under section 404 of this

20 Act; and

21 ‘‘(iii) the Secretary of the department

22 in which the Coast Guard is operating de23 termines that any department, agency, or

24 instrumentality of the United States has

25 violated any provision of section 311 of
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1 this Act or any of its implementing regula2 tions;

3 the Administrator or Secretary, as applicable,

4 may issue an order to assess an administrative

5 penalty for any past or current violation or re6 quire compliance or correction of any past or

7 current violation immediately or within a speci8 fied time period, or both.

9 ‘‘(B) REQUIRED TERMS.—Any order

10 issued under this subsection—

11 ‘‘(i) by the Administrator may include

12 a suspension or revocation of any permit

13 issued by the Administrator or a State

14 under sections 402 and 404 of this Act;

15 and

16 ‘‘(ii) by the Secretary of the Army

17 may include a suspension or revocation of

18 any permit issued by the Secretary of the

19 Army under section 404 of this Act; and

20 shall state with reasonable specificity the nature of

21 the violation. Any penalty assessed in the order shall

22 not exceed $25,000 per day for each violation.

23 ‘‘(2) VIOLATION OF COMPLIANCE ORDERS.—If

24 a violator fails to take corrective action within the
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1 time specified in an order issued under paragraph

2 (1)—

3 ‘‘(A) the Administrator or Secretary, as

4 applicable, may assess a civil penalty of not

5 more than $25,000 for each day of continued

6 noncompliance with the order; and

7 ‘‘(B)(i) the Administrator may suspend or

8 revoke any permit issued pursuant to section

9 402 or 404 of this Act which is the subject of

10 the order, whether issued by the Administrator

11 or the State; and

12 ‘‘(ii) the Secretary of the Army may sus13 pend or revoke any permit issued pursuant to

14 section 404 of this Act.

15 ‘‘(3) EMERGENCY ORDERS AT FEDERAL FACILI16 TIES.—The Administrator may issue an emergency

17 administrative order to, and assess an administrative

18 penalty for violations of the order against, a Federal

19 agency under the same circumstances as an emer20 gency order may be issued to, and such penalty for

21 violation of such order may be assessed, against any

22 other person under this title.

23 ‘‘(4) PUBLIC HEARING.—

24 ‘‘(A) IN GENERAL.—Any order issued

25 under this subsection shall become final unless,
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1 not later than 30 days after the order is served,

2 a department, agency, or instrumentality of the

3 United States named therein requests a public

4 hearing.

5 ‘‘(B) CONDUCT.—Upon a request under

6 this paragraph, the Administrator or Secretary,

7 as applicable, shall promptly conduct a public

8 hearing. Such public hearing shall be conducted

9 in accordance with section 554 of title 5,

10 United States Code.

11 ‘‘(C) SUBPOENAS.—In connection with any

12 proceeding under this subsection, the Adminis13 trator or Secretary may issue subpoenas for the

14 attendance and testimony of witnesses and the

15 production of relevant papers, books, and docu16 ments and may promulgate rules for discovery

17 procedures.

18 ‘‘(5) CONSULTATION WITH THE ADMINIS19 TRATOR.—No administrative order, including any

20 emergency order or field citation, issued to a Federal

21 department, agency or instrumentality under this

22 subsection shall become final until such department,

23 agency, or instrumentality has had the opportunity

24 to confer with the Administrator.
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1 ‘‘(6) EXISTING COMPLIANCE ORDERS.—Nothing

2 in this subsection shall be construed to alter, modify,

3 or change in any manner any Federal facility com4 pliance agreement, permit, administrative order or

5 judicial order that is in effect on the effective date

6 of this subsection.

7 ‘‘(7) ACTIONS AND RIGHTS OF INTERESTED

8 PERSONS.—No administrative action which has been

9 commenced by the Administrator or the Secretary

10 under this subsection with respect to a violation

11 shall preclude a civil enforcement action under sec12 tion 505 of this Act for the same violation or viola13 tions.

14 ‘‘(8) SPECIAL RULES.—

15 ‘‘(A) PUBLIC NOTICE.—Before issuing an

16 order under this subsection, the Administrator

17 or Secretary, as the case may be, shall provide

18 public notice of and reasonable opportunity to

19 comment on the proposed issuance of such

20 order.

21 ‘‘(B) PRESENTATION OF EVIDENCE.—Any

22 person who comments on a proposed order

23 under this subsection shall be given notice of

24 any hearing held with respect to the proposed

25 order and the order. In any hearing held under
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1 this subsection, such person shall have a rea2 sonable opportunity to be heard and to present

3 evidence.

4 ‘‘(9) CITIZEN’S CIVIL ACTION.—Any person

5 may commence a civil action on his or her own be6 half against—

7 ‘‘(A) any Federal agency that is alleged to

8 have violated or to be in violation of any order

9 issued by the Administrator or the Secretary

10 under this title; or

11 ‘‘(B) any Federal agency that fails, within

12 1 year of the effective date of a final order, to

13 pay a penalty assessed by the Administrator or

14 the Secretary under this subsection.’’.

15 (c) DEFINITION OF PERSON.—

16 (1) GENERAL DEFINITIONS.—Section 502(5) of

17 the Federal Water Pollution Control Act (33 U.S.C.

18 1362(5)) is further amended by inserting before the

19 period at the end the following: ‘‘and includes any

20 department, agency, or instrumentality of the United

21 States’’.

22 (2) OIL AND HAZARDOUS SUBSTANCE LIABILITY

23 PROGRAM.—Section 311(a)(7) of such Act (33

24 U.S.C. 1321(a)(7)) is amended by inserting before

25 the semicolon at the end the following: ‘‘and any de-
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1 partment, agency, or instrumentality of the United

2 States’’.

3 SEC. 17. APPLICABILITY.

4 Sections 101(h), 309(g)(6)(A), 505(a)(1), 505(b),

5 505(g), and 505(i) of the Federal Water Pollution Control

6 Act, as inserted or amended by this Act, shall be applica7 ble to all cases pending under such Act on the date of

8 the enactment of this Act and all cases brought on or after

9 such date of enactment relating to violations which oc10 curred before such date of enactment.

Æ