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) in-
troduced the following bill; which was referred to the Committee on Pub-
lic Works and Transportation
A BILL
To amend the Federal Water Pollution Control Act relating
to Federal facilities pollution control.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Federal Facilities
Clean Water Compliance Act of 1993’’.
SEC. 2. APPLICATION OF CERTAIN PROVISIONS TO FED-
ERAL FACILITIES.
Section 313(a) of the Federal Water Pollution Con-
trol Act (33 U.S.C. 1323(a)) is amended by striking the
third sentence and all that follows through the period at
the end of the last sentence and inserting the following:
‘‘The Federal, State, interstate, and local substantive and
procedural requirements, administrative authority, and
process and sanctions referred to in this subsection in-
clude, but are not limited to, all administrative orders and
all civil and administrative penalties and fines, regardless
of whether such penalties or fines are punitive or coercive
in nature or are imposed for isolated, intermittent, or con-
tinuing violations. The United States hereby expressly
waives any immunity otherwise applicable to the United
States with respect to any such requirement, administra-
tive authority, and process and sanctions (including, but
not limited to, any injunctive relief, administrative order
or civil or administrative penalty or fine referred to in the
preceding sentence, or reasonable service charge). The rea-
sonable service charges referred to in this subsection in-
clude, but are not limited to, fees or charges assessed in
connection with the processing and issuance of permits,
renewal of permits, amendments to permits, review of
plans, studies, and other documents, and inspection and
monitoring of facilities, as well as any other nondiscrim-
inatory charges that are assessed in connection with a
Federal, State, interstate, or local water pollution regu-
latory program. No agent, employee, or officer of the Unit-
ed States shall be personally liable for any civil penalty
under any Federal, State, interstate, or local water pollu-
tion law with respect to any act or omission within the
scope of the official duties of the agent, employee, or offi-
cer. An agent, employee, or officer of the United States
shall be subject to any criminal sanction (including, but
not limited to, any fine or imprisonment) under any Fed-
eral or State water pollution law, but no department,
agency, or instrumentality of the executive, legislative, or
judicial branch of the Federal Government shall be subject
to any such sanction.’’.
SEC. 3. FEDERAL FACILITY ENFORCEMENT.
Section 309 of the Federal Water Pollution Control
Act (33 U.S.C. 1319) is amended by adding at the end
the following:
‘‘(h) FEDERAL FACILITY ENFORCEMENT.—
‘‘(1) COMPLIANCE ORDERS.—
‘‘(A) IN GENERAL.—Whenever on the basis
of any information available to him—
‘‘(i) the Administrator determines
that any department, agency, or instru-
mentality of the United States has violated
or is in violation of section 301, 302, 306,
307, 308, 311, 318, or 405 of this Act, or
has violated or is in violation of any permit
condition or limitation implementing any
such section in a permit issued under sec-
tion 402 of this Act by the Administrator
or by a State, or in a permit issued under
section 404 of this Act by a State, or any
requirement imposed in a pretreatment
program approved under section 402(a)(3)
or 402(b)(8) of this Act;
‘‘(ii) the Secretary of the Army deter-
mines that any department, agency, or in-
strumentality of the United States has vio-
lated or is in violation of any condition or
limitation in a permit issued under section
404 of this Act;
‘‘(iii) the Secretary of the department
in which the Coast Guard is operating de-
termines that any department, agency, or
instrumentality of the United States has
violated any provision of section 311 of
this Act or any of its implementing regula-
tions;
the Administrator or Secretary, as applicable,
may propose an order to assess a civil penalty
for any past or current violation or require
compliance immediately or within a specified
time period, or both.
‘‘(B) REQUIRED
TERMS.—Any order is-
sued under this subsection —
‘‘(i) by the Administrator may include
a suspension or revocation of any permit
issued by the Administrator or a State
under sections 402 and 404 of this Act;
and
‘‘(ii) by the Secretary of the Army
may include a suspension or revocation of
any permit issued by the Secretary of the
Army or a State under section 404 of this
Act; and
shall state with reasonable specificity the nature of
the violation. Any penalty assessed in the order shall
not exceed $25,000 per day for each violation.
‘‘(2) PUBLIC HEARING.—Any order under this
section shall become final unless, not later than 30
days after the order is served, a Federal department,
agency, or instrumentality of the United States
named therein requests a public hearing. Upon such
request, the Administrator or Secretary, as applica-
ble, shall promptly conduct a public hearing. Such
public hearing shall be conducted in accordance with
section 554 of title 5, United States Code. In con-
nection with any proceeding under this subsection,
the Administrator or Secretary may issue subpoenas
for the attendance and testimony of witnesses and
the production of relevant papers, books, and docu-
ments and may promulgate rules for discovery pro-
cedures.
‘‘(3) VIOLATION OF COMPLIANCE ORDERS.—If
a violator fails to take corrective action within the
time specified in an order issued under paragraph
(1)—
‘‘(A) the Administrator or Secretary, as
applicable, may assess a civil penalty of not
more than $25,000 for each day of continued
noncompliance with the order; and
‘‘(B)(i) the Administrator may suspend or
revoke any permit issued pursuant to section
402 or 404 of this Act which is the subject of
the order, whether issued by the Administrator
or the State; and
‘‘(ii) the Secretary of the Army may sus-
pend or revoke any permit issued pursuant to
section 404 of this Act, whether issued by the
Secretary of the Army or a State.
‘‘(4) DETERMINATION
OF
AMOUNT
OF
PEN-
ALTY.—In determining the amount of any penalty
assessed under this subsection, the Administrator or
Secretary, as the case may be, shall consider the se-
riousness of each violation or violations, the viola-
tor’s economic benefit or savings (if any) resulting
from each violation, any history of prior violations,
any good-faith efforts to avoid noncompliance or to
comply with the applicable requirements, the viola-
tor’s ability to pay the penalty, and such other mat-
ters in mitigation and aggravation as justice may
require.
‘‘(5) LIMITATION ON ACTIONS AND RIGHT OF
INTERVENTION.—Any violation with respect to
which the Administrator or the Secretary, as appli-
cable, has commenced and is diligently prosecuting
an action under this subsection, or for which the Ad-
ministrator or the Secretary has issued a final order
and the violator has paid a penalty assessed under
this subsection, shall not be the subject of a civil en-
forcement action under section 505 of this Act. In
any action under this subsection, any citizen may in-
tervene as a matter of right.
‘‘(6) PENALTY FUND.—Penalties received under
this subsection shall be deposited into a special fund
in the United States Treasury for licensing and
other services. Amounts in the fund are authorized
to be appropriated and shall remain available until
expended for allocation by the Administrator to fi-
nance water remediation and other restorative and
preventive projects at Federal facilities. The Admin-
istrator shall annually report to Congress about the
sums deposited into the fund, the sources thereof,
and the allocations thereof.’’.
SEC. 4. DEFINITION OF PERSON.
(a) GENERAL DEFINITIONS.—Section 502(5) of the
Federal Water Pollution Control Act (33 U.S.C. 1362(5))
is amended by inserting before the period at the end the
following: ‘‘and includes any department, agency, or in-
strumentality of the United States’’.
(b) OIL
AND HAZARDOUS SUBSTANCE LIABILITY
PROGRAM.—Section 311(a)(7)) of such Act (33 U.S.C.
1321(a)(7) is amended by inserting before the semicolon
at the end the following: ‘‘and any department, agency,
or instrumentality of the United States’’.
SEC. 5. DEFINITION OF RADIOACTIVE MATERIAL.
Section 502 of the Federal Water Pollution Control
Act (33 U.S.C. 1362) is amended by adding at the end
the following:
‘‘(21) The term ‘radioactive materials’ includes
source materials, special nuclear materials, and byproduct
materials (as such terms are defined under the Atomic
Energy Act of 1954) which are used, produced, or man-
aged at facilities not licensed by the Nuclear Regulatory
Commission.’’.
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