II

106TH CONGRESS

1ST SESSION S. 669

To amend the Federal Water Pollution Control Act to ensure compliance

by Federal facilities with pollution control requirements.

IN THE SENATE OF THE UNITED STATES

MARCH 19, 1999

Mr. COVERDELL (for himself, Mr. BREAUX, Mr. DEWINE, and Mr. GRAMS)

introduced the following bill; which was read twice and referred to the

Committee on Environment and Public Works

A BILL

To amend the Federal Water Pollution Control Act to ensure

compliance by Federal facilities with pollution control

requirements.

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 ‘‘Federal Facilities

5 Clean Water Compliance Act of 1999’’.

6 SEC. 2. FEDERAL FACILITIES CLEAN WATER COMPLIANCE.

7 (a) APPLICATION OF CERTAIN PROVISIONS TO FED8 ERAL FACILITIES.—Section 313 of the Federal Water Pol9 lution Control Act (33 U.S.C. 1323) is amended—
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1 (1) by redesignating subsection (b) as sub2 section (d); and

3 (2) by striking subsection (a) and inserting the

4 following:

5 ‘‘(a) COMPLIANCE.—

6 ‘‘(1) DEFINITION OF REASONABLE SERVICE

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

8 service charge’ includes—

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

10 with the processing, issuance, renewal, or

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

12 or other document, or inspection or monitoring

13 of a facility; and

14 ‘‘(B) any other nondiscriminatory charge

15 that is assessed in connection with a Federal,

16 State, interstate, or local regulatory program

17 concerning the control and abatement of water

18 pollution.

19 ‘‘(2) REQUIREMENT.—Each department, agen20 cy, and instrumentality of the executive, legislative,

21 or judicial branch of the Federal Government that

22 has jurisdiction over any property or facility, or is

23 engaged in any activity that results, or that may re24 sult, in the discharge or runoff of a pollutant shall

25 be subject to, and shall comply with, all Federal,
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1 State, interstate, and local substantive and proce2 dural requirements (including any requirement for a

3 permit or reporting, any provision for injunctive re4 lief and such sanctions as are imposed by a Federal

5 or State court to enforce the relief, and any require6 ment for the payment of a reasonable service

7 charge) concerning the control and abatement of

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

9 extent, as any other person is subject to the require10 ments.

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

12 United States waives any immunity otherwise appli13 cable to the United States with respect to any sub14 stantive or procedural requirement described in

15 paragraph (2), including immunity from process in

16 an administrative or court action seeking—

17 ‘‘(A) injunctive relief;

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

19 in this subsection;

20 ‘‘(C) enforcement of an administrative

21 order;

22 ‘‘(D) imposition of an administrative pen23 alty or fine; or

24 ‘‘(E) payment of a reasonable service

25 charge.
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1 ‘‘(4) ADMINISTRATIVE ORDERS AND PEN2 ALTIES.—The substantive and procedural require3 ments described in paragraph (2) include all admin4 istrative orders and all civil and administrative pen5 alties or fines, regardless of whether the penalties or

6 fines are punitive or coercive in nature or are im7 posed for isolated, intermittent, or continuing viola8 tions.

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

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

11 United States) shall not be immune or exempt from

12 any process or sanction of any State or Federal

13 court with respect to the enforcement of any injunc14 tive relief referred to in paragraph (2).

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

16 or officer of the United States shall be personally

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

18 interstate, or local law concerning the control and

19 abatement of water pollution with respect to any act

20 or omission within the scope of the official duties of

21 the agent, employee, or officer.

22 ‘‘(7) CRIMINAL PENALTIES.—

23 ‘‘(A) AGENTS, EMPLOYEES, AND OFFI24 CERS.—An agent, employee, or officer of the

25 United States shall be subject to a criminal
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1 sanction (including a fine or imprisonment)

2 under any Federal or State law concerning the

3 control and abatement of water pollution.

4 ‘‘(B) DEPARTMENTS, AGENCIES, AND IN5 STRUMENTALITIES.—No department, agency,

6 or instrumentality of the executive, legislative,

7 or judicial branch of the Federal Government

8 shall be subject to a sanction referred to in sub9 paragraph (A).

10 ‘‘(b) ADMINISTRATIVE ENFORCEMENT ACTIONS.—

11 ‘‘(1) IN GENERAL.—

12 ‘‘(A) COMMENCEMENT.—The Adminis13 trator, the Secretary of the Army, and the Sec14 retary of the department in which the Coast

15 Guard is operating may commence an adminis16 trative enforcement action against any depart17 ment, agency, or instrumentality of the execu18 tive, legislative, or judicial branch of the Fed19 eral Government pursuant to the enforcement

20 authorities authorized by this Act.

21 ‘‘(B) MANNER AND CIRCUMSTANCES.—The

22 Administrator or Secretary, as applicable, shall

23 initiate an administrative enforcement action

24 against such a department, agency, or instru25 mentality in the same manner and under the
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1 same circumstances as the Administrator or

2 Secretary would initiate such an action against

3 another person.

4 ‘‘(C) CONSENT ORDERS.—Any voluntary

5 resolution or settlement of an action described

6 in subparagraph (B) shall be set forth in a con7 sent order.

8 ‘‘(2) OPPORTUNITY TO CONFER.—An adminis9 trative order issued to a department, agency, or in10 strumentality under paragraph (1) shall not become

11 final until the department, agency, or instrumen12 tality has had the opportunity to confer with the Ad13 ministrator or Secretary, as applicable.

14 ‘‘(c) LIMITATION ON STATE USE OF FUNDS COL15 LECTED FROM THE FEDERAL GOVERNMENT.—Unless a

16 State law in effect on the date of enactment of this sub17 section or a State constitution requires the funds to be

18 used in a different manner, all funds collected by a State

19 from the Federal Government from penalties and fines im20 posed for violation of a substantive or procedural require21 ment described in subsection (a) shall be used by the State

22 only for projects designed to improve or protect the envi23 ronment or to defray the costs of environmental protection

24 or enforcement.’’.

25 (b) DEFINITION OF PERSON.—
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1 (1) GENERAL DEFINITIONS.—Section 502(5) of

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

3 1362(5)) is amended—

4 (A) by striking ‘‘or any’’ and inserting

5 ‘‘an’’; and

6 (B) by inserting before the period at the

7 end the following: ‘‘or a department, agency, or

8 instrumentality of the United States’’.

9 (2) OIL AND HAZARDOUS SUBSTANCE LIABILITY

10 PROGRAM.—Section 311(a)(7) of the Federal Water

11 Pollution Control Act (33 U.S.C. 1321(a)(7)) is

12 amended—

13 (A) by striking ‘‘a’’; and

14 (B) by inserting before the semicolon at

15 the end the following: ‘‘and a department, agen16 cy, or instrumentality of the United States’’.

17 (c) CITIZEN SUITS.—Section 505 of the Federal

18 Water Pollution Control Act (33 U.S.C. 1365) is

19 amended—

20 (1) in subsection (a)—

21 (A) in paragraph (1), by striking ‘‘, or’’

22 and inserting a semicolon;

23 (B) in paragraph (2), by striking the pe24 riod at the end and inserting ‘‘; or’’; and

25 (C) by adding at the end the following:
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1 ‘‘(3) for the collection of a penalty by the

2 United States Government (and associated costs and

3 interest) against any Federal agency that fails, by

4 the date that is 18 months after the effective date

5 of a final order, to pay a penalty assessed by the Ad6 ministrator under this Act.’’; and

7 (2) by striking subsection (b) and inserting the

8 following:

9 ‘‘(b) NOTICE.—

10 ‘‘(1) IN GENERAL.—Except as provided in para11 graph (2), no action may be commenced—

12 ‘‘(A) under subsection (a)(1)—

13 ‘‘(i) before 60 days after the plaintiff

14 has given notice of the alleged violation

15 to—

16 ‘‘(I) the Administrator;

17 ‘‘(II) the State in which the al18 leged violation occurs; and

19 ‘‘(III) any alleged violator of the

20 standard, limitation, or order; or

21 ‘‘(ii) if the Administrator or State has

22 commenced and is diligently prosecuting a

23 civil or criminal action in a court of the

24 United States or a State to require compli25 ance with the standard, limitation, or order
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1 (but in any such action in a court of the

2 United States any citizen may intervene as

3 a matter of right);

4 ‘‘(B) under subsection (a)(2), before 60

5 days after the plaintiff has given notice of the

6 action to the Administrator; or

7 ‘‘(C) under subsection (a)(3), before 60

8 days after the plaintiff has given notice of the

9 action to the Attorney General and the head of

10 the Federal agency referred to in subsection

11 (a)(3).

12 ‘‘(2) EXCEPTION.—An action may be brought

13 immediately after the giving of notice in the case of

14 an action under this section respecting a violation of

15 section 306 or 307(a).

16 ‘‘(3) MANNER OF GIVING NOTICE.—Notice

17 under this subsection shall be given in such manner

18 as the Administrator shall prescribe by regulation.’’.

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