II

106TH CONGRESS

2D SESSION S. 2934

To provide for the assessment of an increased civil penalty in a case in

which a person or entity that is the subject of a civil environmental

enforcement action has previously violated an environmental law or in

a case in which a violation of an environmental law results in a catastrophic event.

IN THE SENATE OF THE UNITED STATES

JULY 26, 2000

Mr. TORRICELLI introduced the following bill; which was read twice and

referred to the Committee on Environment and Public Works

A BILL

To provide for the assessment of an increased civil penalty

in a case in which a person or entity that is the subject

of a civil environmental enforcement action has previously violated an environmental law or in a case in

which a violation of an environmental law results in

a catastrophic event.

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 ‘‘Zero Tolerance for Re5 peat Polluters Act of 2000’’.
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1 SEC. 2. FINDINGS AND PURPOSE.

2 (a) FINDINGS.—Congress finds that—

3 (1) if a person or entity that is the subject of

4 a civil enforcement action under an environmental

5 law has previously violated an environmental law at

6 the same site or facility or for the same regulated

7 activity, the person or entity—

8 (A) was apparently not deterred by the

9 previous Federal or State enforcement action;

10 and

11 (B) should be subject to an additional pen12 alty to achieve the goal of deterrence; and

13 (2) because of the daily penalty maximums

14 specified in environmental law in effect on the date

15 of enactment of this Act, the penalty assessed for a

16 violation that results in a single catastrophic event

17 may not be great enough to reflect the serious actual

18 or potential public health or environmental con19 sequences of the violation.

20 (b) PURPOSE.—The purpose of this Act is to provide

21 for the assessment of an increased civil penalty in a case

22 in which—

23 (1) a person or entity that is the subject of a

24 civil environmental enforcement action has pre25 viously violated an environmental law at the same

26 site or facility or for the same regulated activity; or
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1 (2) a violation of an environmental law results

2 in a catastrophic event.

3 SEC. 3. DEFINITIONS.

4 In this Act:

5 (1) ADMINISTRATOR.—The term ‘‘Adminis6 trator’’ means—

7 (A) the Administrator of the Environ8 mental Protection Agency; and

9 (B) to the extent that a State has been

10 delegated, authorized, or approved authority to

11 enforce an environmental law, the State.

12 (2) ENVIRONMENTAL LAW.—The term ‘‘envi13 ronmental law’’ means any of the following laws (in14 cluding any regulation, permit, or other requirement,

15 any administrative or judicial judgment, settlement

16 agreement, order or decree on consent, and any ad17 ministrative or judicial order issued or imposed

18 under any such law):

19 (A) The Federal Insecticide, Fungicide,

20 and Rodenticide Act (7 U.S.C. 136 et seq.).

21 (B) The Toxic Substances Control Act (15

22 U.S.C. 2601 et seq.).

23 (C) The Federal Water Pollution Control

24 Act (33 U.S.C. 1251 et seq.).
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1 (D) The Marine Protection, Research, and

2 Sanctuaries Act of 1972 (33 U.S.C. 1401 et

3 seq.).

4 (E) The Act to Prevent Pollution from

5 Ships (33 U.S.C. 1901 et seq.).

6 (F) The Shore Protection Act of 1988 (33

7 U.S.C. 2601 et seq.).

8 (G) The Safe Drinking Water Act (42

9 U.S.C. 300f et seq.).

10 (H) The Solid Waste Disposal Act (42

11 U.S.C. 6901 et seq.).

12 (I) The Clean Air Act (42 U.S.C. 7401 et

13 seq.).

14 (J) The Comprehensive Environmental Re15 sponse, Compensation, and Liability Act of

16 1980 (42 U.S.C. 9601 et seq.).

17 (K) The Emergency Planning and Commu18 nity Right-To-Know Act of 1986 (42 U.S.C.

19 11001 et seq.).

20 (L) Chapter 51 of title 49, United States

21 Code.

22 (M) Chapter 601 of title 49, United States

23 Code.

24 (3) PERSON.—The term ‘‘person’’ means a per25 son, site or facility owner or operator, or other re-
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1 sponsible party identified under a law listed in para2 graph (2).

3 (4) RELATED PARTY.—The term ‘‘related

4 party’’ means—

5 (A) a person having a relationship de6 scribed in Section 267(b) of the Internal Rev7 enue Code of 1986 to the owner or operator;

8 and

9 (B) a predecessor of the owner or operator

10 (including, in the case of a merger of 2 or more

11 independent corporations, each of the previously

12 independent corporations).

13 (5) REPEAT VIOLATION.—The term ‘‘repeat

14 violation’’ means the violation by a repeat violator

15 that is the subject of a finding and enforcement ac16 tion, criminal action, or other agency action de17 scribed in paragraph (6).

18 (6) REPEAT VIOLATOR.—The term ‘‘repeat vio19 lator’’ means a person that has been found, in a

20 final Federal or State administrative, criminal, or

21 civil judicial action, order, settlement agreement, or

22 consent decree, to have violated—

23 (A) the same environmental law at the

24 same site or facility or for the same regulated
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1 activity at least twice during the preceding 5-

2 year period; or

3 (B) any environmental law at the same site

4 or facility or for the same regulated activity at

5 least twice during the preceding 3-year period.

6 SEC. 4. ADDITIONAL PENALTY FOR REPEAT VIOLATIONS.

7 (a) IN GENERAL.—In a civil judicial or administra8 tive proceeding brought against a repeat violator for a sub9 sequent violation of the same environmental law or sepa10 rate environmental laws at 1 or more sites or facilities

11 owned or operated by the repeat violator, or for violations

12 for the same regulated activity under 1 or more environ13 mental laws, the repeat violator shall be assessed up to—

14 (1) an additional penalty of 25 percent of the

15 maximum penalty assessable per day of violation for

16 the first repeat violation under the applicable envi17 ronmental law;

18 (2) an additional penalty of 50 percent of the

19 maximum penalty assessable per day of violation for

20 the second repeat violation under the applicable envi21 ronmental law; and

22 (3) an additional penalty of 100 percent of the

23 maximum penalty assessable per day of violation

24 under the applicable environmental law for the third

25 and each subsequent violation.
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1 (b) TRANSFER OF OWNERSHIP OR OPERATION.—The

2 transfer of ownership or operation of a site or facility by

3 the owner or operator of the site or facility to a related

4 party shall not affect the liability of the owner or operator

5 with respect to a repeat violation under this section.

6 SEC. 5. ADDITIONAL PENALTY FOR CATASTROPHIC

7 EVENTS.

8 (a) DEFINITIONS.—In this section:

9 (1) CATASTROPHIC EVENT.—The term ‘‘cata10 strophic event’’ means a release of pollutants under

11 any environmental law that results in—

12 (A) the potential for serious human injury

13 or death, or serious environmental damage; or

14 (B) serious human injury or death, or seri15 ous environmental damage.

16 (2) CRITERIA AIR POLLUTANT.—The term ‘‘cri17 teria air pollutant’’ means an air pollutant listed

18 under section 108 of the Clean Air Act (42 U.S.C.

19 7408).

20 (3) HAZARDOUS AIR POLLUTANT.—The term

21 ‘‘hazardous air pollutant’’ has the meaning given the

22 term in section 112(a) of the Clean Air Act (42

23 U.S.C. 7412(a)).

24 (4) HAZARDOUS SUBSTANCE.—The term ‘‘haz25 ardous substance’’ has the meaning given the term
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1 in section 101 of the Comprehensive Environmental

2 Response, Compensation, and Liability Act of 1980

3 (42 U.S.C. 9601).

4 (5) OZONE-DEPLETING SUBSTANCE.—The term

5 ‘‘ozone-depleting substance’’ means a class I sub6 stance or a class II substance, as defined in section

7 601 of the Clean Air Act (42 U.S.C. 7671).

8 (b) ADDITIONAL PENALTY.—

9 (1) IN GENERAL.—In addition to a civil penalty

10 assessed in a judicial or administrative proceeding

11 under another environmental law, the Administrator

12 shall assess an additional penalty for each cata13 strophic event against the violator—

14 (A) in the case of a catastrophic event that

15 results in the potential for serious human injury

16 or death, or serious environmental damage, but

17 that does not have a result described in sub18 paragraph (B) or (C), a minimum of—

19 (i) $10,000 per pound of hazardous

20 air pollutant emitted in the course of the

21 catastrophic event;

22 (ii) $10,000 per ton of criteria air pol23 lutant or ozone-depleting substance emit24 ted in the course of the catastrophic event;

25 and
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1 (iii) $10,000 for each quantity of haz2 ardous substance equal to the reportable

3 quantity of the hazardous substance, as

4 specified in parts 117 and 302, title 40,

5 Code of Federal Regulations (or any suc6 cessor regulation), released in the course of

7 the catastrophic event;

8 (B) in the case of a catastrophic event that

9 results either in a serious human injury or

10 death, or in serious environmental damage, a

11 minimum of—

12 (i) $15,000 per pound of hazardous

13 air pollutant emitted in the course of the

14 catastrophic event; and

15 (ii) $15,000 per ton of criteria air pol16 lutant or ozone-depleting substance emit17 ted in the course of the catastrophic event;

18 and

19 (iii) $15,000 for each quantity of haz20 ardous substance equal to the reportable

21 quantity of the hazardous substance, as

22 specified in parts 117 and 302, title 40,

23 Code of Federal Regulations (or any suc24 cessor regulation), released in the course of

25 the catastrophic event; and
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1 (C) in the case of a catastrophic event that

2 results both in a serious human injury or death

3 and in serious environmental damage, a min4 imum of—

5 (i) $25,000 per pound of hazardous

6 air pollutant emitted in the course of the

7 catastrophic event;

8 (ii) $25,000 per ton of criteria air pol9 lutant or ozone-depleting substance emit10 ted in the course of the catastrophic event;

11 and

12 (iii) $25,000 for each quantity of haz13 ardous substance equal to the reportable

14 quantity of the hazardous substance, as

15 specified in parts 117 and 302, title 40,

16 Code of Federal Regulations (or any suc17 cessor regulation), released in the course of

18 the catastrophic event.

19 (2) AIR POLLUTANTS FALLING WITHIN MUL20 TIPLE CATEGORIES.—For the purpose of deter21 mining an additional civil penalty under paragraph

22 (1), if an air pollutant is both a hazardous air pol23 lutant and a criteria air pollutant, hazardous sub24 stance, or ozone-depleting substance, the air pollut-
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1 ant shall be considered to be a hazardous air pollut2 ant.

3 (c) PREVENTIVE MEASURES.—In addition to any

4 measures required to be implemented under any other pro5 vision of law, the Administrator may require in an order,

6 consent decree, settlement agreement, permit, or other en7 forceable mechanism that a violator against which a pen8 alty is assessed under subsection (b) shall implement pre9 ventive measures, including additional monitoring, record10 keeping, reporting, training, and other design, equipment,

11 work practice, and operational requirements.

12 SEC. 6. PRESERVATION OF AUTHORITY.

13 Nothing in this Act limits the authority of the

14 Administrator—

15 (1) to assess appropriate penalties, on consider16 ation of relevant factors, under any environmental

17 law; or

18 (2) to impose more stringent requirements and

19 penalties or exercise any civil or criminal authority

20 in the case of repeat violators or catastrophic events.

21 SEC. 7. EMERGENCY ORDER AND CIVIL ACTION PENALTY

22 AUTHORITY.

23 (a) IN GENERAL.—Notwithstanding any other provi24 sion of law, the Administrator may, with respect to any

25 person or entity responsible for creating a condition that
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1 may present an imminent and substantial endangerment

2 to human health or the environment in violation of an en3 vironmental law, issue an administrative order or bring a

4 civil action in United States District Court, seeking such

5 relief as is necessary to protect human health or the envi6 ronment.

7 (b) PENALTY.—A person or entity described in sub8 section (a) may be fined not less than $25,000 and not

9 more than $10,000,000, to be paid into the Health and

10 Environment Trust Fund of the Environmental Protection

11 Agency.

12 (c) AVAILABILITY OF FUNDS.—The Administrator

13 shall make funds in the Health and Environmental Trust

14 Fund available for withdrawals, without further Act of ap15 propriation, in an amount not to exceed $500,000 for each

16 project, to pay costs incurred by the Federal Government

17 in addressing a health or environmental threat—

18 (1) for which a fine was collected under sub19 section (b); and

20 (2) in accordance with the statutory authority

21 under which the action seeking payment of the fine

22 was initiated.

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