I

103D CONGRESS

1ST SESSION H. R. 2580

To amend the Federal Water Pollution Control Act relating to Federal

facilities pollution control.

IN THE HOUSE OF REPRESENTATIVES

JULY 1, 1993

Mr. DEFAZIO (for himself, Mr. WYDEN, Mr. KOPETSKI, and Ms. FURSE) introduced the following bill; which was referred to the Committee on Public Works and Transportation

A BILL

To amend the Federal Water Pollution Control Act relating

to Federal facilities pollution control.

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 1993’’.

6 SEC. 2. APPLICATION OF CERTAIN PROVISIONS TO FED7 ERAL FACILITIES.

8 Section 313(a) of the Federal Water Pollution Con9 trol Act (33 U.S.C. 1323(a)) is amended by striking the

10 third sentence and all that follows through the period at
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1 the end of the last sentence and inserting the following:

2 ‘‘The Federal, State, interstate, and local substantive and

3 procedural requirements, administrative authority, and

4 process and sanctions referred to in this subsection in5 clude, but are not limited to, all administrative orders and

6 all civil and administrative penalties and fines, regardless

7 of whether such penalties or fines are punitive or coercive

8 in nature or are imposed for isolated, intermittent, or con9 tinuing violations. The United States hereby expressly

10 waives any immunity otherwise applicable to the United

11 States with respect to any such requirement, administra12 tive authority, and process and sanctions (including, but

13 not limited to, any injunctive relief, administrative order

14 or civil or administrative penalty or fine referred to in the

15 preceding sentence, or reasonable service charge). The rea16 sonable service charges referred to in this subsection in17 clude, but are not limited to, fees or charges assessed in

18 connection with the processing and issuance of permits,

19 renewal of permits, amendments to permits, review of

20 plans, studies, and other documents, and inspection and

21 monitoring of facilities, as well as any other nondiscrim22 inatory charges that are assessed in connection with a

23 Federal, State, interstate, or local water pollution regu24 latory program. No agent, employee, or officer of the Unit25 ed States shall be personally liable for any civil penalty
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1 under any Federal, State, interstate, or local water pollu2 tion law with respect to any act or omission within the

3 scope of the official duties of the agent, employee, or offi4 cer. An agent, employee, or officer of the United States

5 shall be subject to any criminal sanction (including, but

6 not limited to, any fine or imprisonment) under any Fed7 eral or State water pollution law, but no department,

8 agency, or instrumentality of the executive, legislative, or

9 judicial branch of the Federal Government shall be subject

10 to any such sanction.’’.

11 SEC. 3. FEDERAL FACILITY ENFORCEMENT.

12 Section 309 of the Federal Water Pollution Control

13 Act (33 U.S.C. 1319) is amended by adding at the end

14 the following:

15 ‘‘(h) FEDERAL FACILITY ENFORCEMENT.—

16 ‘‘(1) COMPLIANCE ORDERS.—

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

18 of any information available to him—

19 ‘‘(i) the Administrator determines

20 that any department, agency, or instru21 mentality of the United States has violated

22 or is in violation of section 301, 302, 306,

23 307, 308, 311, 318, or 405 of this Act, or

24 has violated or is in violation of any permit

25 condition or limitation implementing any
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1 such section in a permit issued under sec2 tion 402 of this Act by the Administrator

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

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

5 requirement imposed in a pretreatment

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

7 or 402(b)(8) of this Act;

8 ‘‘(ii) the Secretary of the Army deter9 mines that any department, agency, or in10 strumentality of the United States has vio11 lated or is in violation of any condition or

12 limitation in a permit issued under section

13 404 of this Act;

14 ‘‘(iii) the Secretary of the department

15 in which the Coast Guard is operating de16 termines that any department, agency, or

17 instrumentality of the United States has

18 violated any provision of section 311 of

19 this Act or any of its implementing regula20 tions;

21 the Administrator or Secretary, as applicable,

22 may propose an order to assess a civil penalty

23 for any past or current violation or require

24 compliance immediately or within a specified

25 time period, or both.
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1 ‘‘(B) REQUIRED TERMS.—Any order is2 sued under this subsection —

3 ‘‘(i) by the Administrator may include

4 a suspension or revocation of any permit

5 issued by the Administrator or a State

6 under sections 402 and 404 of this Act;

7 and

8 ‘‘(ii) by the Secretary of the Army

9 may include a suspension or revocation of

10 any permit issued by the Secretary of the

11 Army or a State under section 404 of this

12 Act; and

13 shall state with reasonable specificity the nature of

14 the violation. Any penalty assessed in the order shall

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

16 ‘‘(2) PUBLIC HEARING.—Any order under this

17 section shall become final unless, not later than 30

18 days after the order is served, a Federal department,

19 agency, or instrumentality of the United States

20 named therein requests a public hearing. Upon such

21 request, the Administrator or Secretary, as applica22 ble, shall promptly conduct a public hearing. Such

23 public hearing shall be conducted in accordance with

24 section 554 of title 5, United States Code. In con25 nection with any proceeding under this subsection,
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1 the Administrator or Secretary may issue subpoenas

2 for the attendance and testimony of witnesses and

3 the production of relevant papers, books, and docu4 ments and may promulgate rules for discovery pro5 cedures.

6 ‘‘(3) VIOLATION OF COMPLIANCE ORDERS.—If

7 a violator fails to take corrective action within the

8 time specified in an order issued under paragraph

9 (1)—

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

11 applicable, may assess a civil penalty of not

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

13 noncompliance with the order; and

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

15 revoke any permit issued pursuant to section

16 402 or 404 of this Act which is the subject of

17 the order, whether issued by the Administrator

18 or the State; and

19 ‘‘(ii) the Secretary of the Army may sus20 pend or revoke any permit issued pursuant to

21 section 404 of this Act, whether issued by the

22 Secretary of the Army or a State.

23 ‘‘(4) DETERMINATION OF AMOUNT OF PEN24 ALTY.—In determining the amount of any penalty

25 assessed under this subsection, the Administrator or
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1 Secretary, as the case may be, shall consider the se2 riousness of each violation or violations, the viola3 tor’s economic benefit or savings (if any) resulting

4 from each violation, any history of prior violations,

5 any good-faith efforts to avoid noncompliance or to

6 comply with the applicable requirements, the viola7 tor’s ability to pay the penalty, and such other mat8 ters in mitigation and aggravation as justice may

9 require.

10 ‘‘(5) LIMITATION ON ACTIONS AND RIGHT OF

11 INTERVENTION.—Any violation with respect to

12 which the Administrator or the Secretary, as appli13 cable, has commenced and is diligently prosecuting

14 an action under this subsection, or for which the Ad15 ministrator or the Secretary has issued a final order

16 and the violator has paid a penalty assessed under

17 this subsection, shall not be the subject of a civil en18 forcement action under section 505 of this Act. In

19 any action under this subsection, any citizen may in20 tervene as a matter of right.

21 ‘‘(6) PENALTY FUND.—Penalties received under

22 this subsection shall be deposited into a special fund

23 in the United States Treasury for licensing and

24 other services. Amounts in the fund are authorized

25 to be appropriated and shall remain available until
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1 expended for allocation by the Administrator to fi2 nance water remediation and other restorative and

3 preventive projects at Federal facilities. The Admin4 istrator shall annually report to Congress about the

5 sums deposited into the fund, the sources thereof,

6 and the allocations thereof.’’.

7 SEC. 4. DEFINITION OF PERSON.

8 (a) GENERAL DEFINITIONS.—Section 502(5) of the

9 Federal Water Pollution Control Act (33 U.S.C. 1362(5))

10 is amended by inserting before the period at the end the

11 following: ‘‘and includes any department, agency, or in12 strumentality of the United States’’.

13 (b) OIL AND HAZARDOUS SUBSTANCE LIABILITY

14 PROGRAM.—Section 311(a)(7)) of such Act (33 U.S.C.

15 1321(a)(7) is amended by inserting before the semicolon

16 at the end the following: ‘‘and any department, agency,

17 or instrumentality of the United States’’.

18 SEC. 5. DEFINITION OF RADIOACTIVE MATERIAL.

19 Section 502 of the Federal Water Pollution Control

20 Act (33 U.S.C. 1362) is amended by adding at the end

21 the following:

22 ‘‘(21) The term ‘radioactive materials’ includes

23 source materials, special nuclear materials, and byproduct

24 materials (as such terms are defined under the Atomic

25 Energy Act of 1954) which are used, produced, or man-
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1 aged at facilities not licensed by the Nuclear Regulatory

2 Commission.’’.

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